ABA Standard 316 Gets Shot Down Again - Here's How To Fix It

The ABA House of Delegates resoundingly defeated Resolution 105, the proposed revision to Standard 316, which would require all law schools to achieve a 75% bar pass rate for all graduates within two years of graduation.  (Read the ABA Journal Story here.) 

The proposal now goes back to the ABA Council of the Section of Legal Education and Admissions to the Bar.  According to Barry Currier, the Council has three options: "abandon the effort to revise the standard; propose a different revision; or reaffirm and implement the changes." In my opinion, the Council should follow the middle course.  The current Standard 316 is a joke and there is widespread agreement that it needs to be overhauled.  It is so weak, and so riddled with loopholes, that no school has ever failed under it, despite years of woeful performance on the bar at many schools.  The proposed revision would close all those loopholes, simplify and toughen the Standard, and would be a huge improvement over the current version.   But the proposed revision is not perfect.  While simplicity and uniformity is desirable, there is an inherent problem with a one size fits all standard for bar passage in a country with widely different bar pass cut scores.  Critics of the proposal have made a credible case that the Standard would have a disparate impact on minority admissions in at least some jurisdictions, especially in California, which has the second toughest bar pass cut score in the country.  (The proposed Standard would also be virtually impossible to meet in Puerto Rico where the pass rates are historically far below 75%.)   Last March, I proposed a way to modify the Standard that would keep virtually all of the positive attributes of the proposed revision while blunting the unintended consequences on diversity.

As the Council sits down to review Standard 316, I thought it would be a good time to reintroduce my (slightly refined) proposal as a potential middle ground that might satisfy most of the major stakeholders.  First, let's look at the current rule and the Council's proposal.

Current Version of Standard 316:

(a) A law school’s bar passage rate shall be sufficient, for purposes of Standard 301(a), if the school demonstrates that it meets any one of the following tests:

(1) That for students who graduated from the law school within the five most recently completed calendar years:

1. (i)  75 percent or more of these graduates who sat for the bar passed a bar examination; or

2. (ii)  in at least three of these calendar years, 75 percent of the students graduating in those years and sitting for the bar have passed a bar examination.

In demonstrating compliance under sections (1)(i) and (ii), the school must report bar passage results from as many jurisdictions as necessary to account for at least 70 percent of its graduates each year, starting with the jurisdiction in which the highest number of graduates took the bar exam and proceeding in descending order of frequency.

(2) That in three or more of the five most recently completed calendar years, the school’s annual first-time bar passage rate in the jurisdictions reported by the school is no more than 15 points below the average first-time bar passage rates for graduates of ABA- approved law schools taking the bar examination in these same jurisdictions.

In demonstrating compliance under section (2), the school must report first-time bar passage data from as many jurisdictions as necessary to account for at least 70 percent of its graduates each year, starting with the jurisdiction in which the highest number of graduates took the bar exam and proceeding in descending order of frequency. When more than one jurisdiction is reported, the weighted average of the results in each of the reported jurisdictions shall be used to determine compliance.

Resolution 105 Proposed Revision of Standard 316:  At least 75 percent of a law school’s graduates in a calendar year who sat for a bar examination must have passed a bar examination administered within two years of their date of graduation.

My Proposed Revision of Standard 316: "Schools shall demonstrate compliance with Standard 316 when either:

A) at least 75 percent of a law school’s graduates in a calendar year who sat for a bar examination have passed a bar examination administered within two years of their date of graduation, or

B) for law schools located in jurisdictions with three or more ABA-accredited law schools and with a bar pass cut score higher than the national median, by achieving an ultimate bar passage rate within two years of graduation equal to or greater than the average first-time bar passage rate for graduates of ABA accredited law schools in that jurisdiction in the year of graduation, whichever is lower."  

Note: The "average first-time bar passage rate for graduates of ABA-accredited law schools in the year of graduation" shall be a weighted average of the results of the February and July administrations of the bar exam in that jurisdiction.

Some comments on my proposal:

What this means is that if the average first-time pass rate in California for ABA schools is 65% in a given year, then ABA schools in California with bar pass rates below 65% will have to get their ultimate bar pass rate up to 65% within two years of graduation.  

My proposal would meet the main goals of revising 316 - stop schools from exploitative admissions practices, and force schools to ensure graduates are prepared to take the bar exam - while still allowing all law schools to admit diverse classes with a substantial number of minority students with reasonable aptitude for the study of law and a reasonable chance to pass the bar.  This will also give law schools with low first-time bar pass rates incentive to continue to provide support to their graduates who failed the bar the first time.

Schools in states with average or easier than average bar exams would have to meet the 75% standard. In the vast majority of U.S. jurisdictions, the 75% UBP within two years standard is not unreasonably rigorous and should not be a concern for any school which is complying with Admission Standard 501.  Indeed most states have an average first-time pass rate at or above 75%, so hitting 75% within 4 administrations should be attainable. The mean average bar pass rate for the 51 jurisdictions with law schools was 75.62% in 2017.  The median in 2016 was 75%.  Schools in jurisdictions with tougher than average bar exams, where the first-time pass rate is below 75%, would be measured by how they performed compared to other schools in their jurisdiction, not based on an arbitrary national average.   By limiting the alternate rule to jurisdictions with three or more schools, a single school would not be able to drive the statewide average down so far that it would benefit substantially by its own low pass rate.  

To put the proposal another way: schools in easy or average states would have to meet the national average of 75% within two years, while schools in harder than average states or jurisidictions would have to meet their own state average within two years.  

Looking at how this rule would be applied, the schools that raised legitimate concerns about Resolution 105 are virtually all in jurisdictions that would be covered by this rule.  California and Puerto Rico would both be covered.  Adopting this alternate formulation would set the California UBP for 2015 at 63.70%, for 2016 at 60.05%, and for 2017 at 66.19%, and would set the Puerto Rico UBP for 2015 at 37.50%, for 2016 at 29.31%  and for 2017 at 40.25%.  In 2017, this alternate rule would also have covered schools in Arizona, North Carolina, Florida, Kentucky, Indiana, Georgia, and DC.  My proposed rule would also protect law schools from fluctuations in bar grading from year to year.  For example,  Oregon (3 law schools, 63.97% pass rate in 2016) would have benefited from the rule for 2016, but when it changed its cut score, resulting in an increase in the state average to 82.55% in 2017, it would then fall under the 75% rule.  Similarly, Louisiana (4 law schools, 72.73% pass rate in 2016) would have benefited under the rule in 2016, but when the state average increased to 76.85% in 2017, it would have fallen under the 75% rule.  

Applying my proposed alternate rule, fewer schools would be currently non-compliant or in danger of failing the bar passage standard, but the worst performing schools with the most exploitative admission practices still would be.  And that's a good thing.  This rule would be significantly tougher than the current, completely toothless, Standard 316, and would close all of the loopholes that currently exist under the rule, without having an undue impact on minority admissions.  My proposal would retain the virtue of the current proposal of being simple to understand and easy to administer without attempting to force a one-size fits all approach on law schools in 51 jurisdictions with wildly divergent bar pass rates that have little to do with the quality of the students or the quality of the legal education being offered.  

I welcome your comments.

 

 

 

Comments

[Anon]

David,

Everyone knows that law schools don’t exist to teach students to practice law or to train students to serve future clients. They exist to serve as social justice incubators and to transfer wealth from the federal government to the law faculty via fungible loan conduits aka students.

[anon 2]

The law school deans arguing against this proposal sound like the son on trial for killing his parents who asks for mercy because he is an orphan.

[r]

It might make calculations more difficult, but instead of the 3 ABA law school requirement in your proposal, you could use the average first time bar pass rate *excluding* the target school's own students. This would prevent swamping in situations where one school has a huge class compared to other schools in the jurisdiction [thinking of the 1,000+ classes from Cooley in years past, which made it virtually impossible for Cooley to miss the 15% below average test].

[Christopher Jennison]

While I like the proposal, one of the arguments that came up repeatedly at this past midyear meeting was for a bright line rule. I don't think that we need to simplify matters quite that much at all, but still, this proposal introduces an element that could (though shouldn't) cause confusion.

[anon]

Here's a novel thought:

Enforce the existing rules.

WHen a law school is not in compliance, instead of writing a letter informing the law school it is not in compliance, immediately put the law school on probation, require it to post a letter so stating on its web site, and allow it two years to come into compliance or lose its accreditation.

A law school that has been on probation within the past fifteen years should lose its accreditation immediately if it again falls out of compliance.

Two strikes is enough when the financial futures of so many young people are being sacrificed to stuff the pockets of lazy, overpaid professors and to supply greedy operators with endless profit fleeced from the naïve victims of their pernicious sham and foul scheme.