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May 17, 2019

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Doug Litowitz

What do you make of law schools doing so much hiring in bar prep and academic support and success etc — which all seem like buzzwords for raising the bar passage rate?

Maybe that is the reason for higher pass rates - they are teaching to the exam. If so, the numbers provevnothing about student quality, only that a change in curriculum is a gimmick for bar passage.

Jim Oleske

A question about your "GOOD NEWS/KUDOS" list and this line from your post:

"Suffice it to say that the schools that are outperforming the competition must be doing something right (especially those that have managed to do so repeatedly), and schools that are doing more poorly than expected must be doing something wrong."

Does your analysis take into account attrition rates? I ask because that would seem relevant for applicants who are looking to "compare schools that admit students with similar entrance credentials" in terms of what percentage of those admitted students (as opposed to eventual graduates) pass the bar.

William W Patton

David,

You state that "claims that imposing the new Standard 316 will have a devastating effect on diversity at California law schools are grossly exaggerated." The 2016 success rate of schools who met the new standard for 2016 graduates was not a surprise. My analysis, however, focuses on 2018 graduates. Neither your analysis nor any data from the ABA Council take into account the dramatic changes in "repeater" bar passage rates that will make it almost impossible for 8 of the highest-diversity CA ABA schools to meet UBP standard for 2018 graduates.

If a law school has a very low 1st time bar passage rate (below 60-65%) it can only meet the 75% in 2-year standard by having good "repeater" passage rates for the 3 consecutive exams that follow the 1st time rate. Almost all CA schools met the 2016 UBP standard because of a "fluke" in the "repeater" rate on the February 2017 exam. That repeater rate was 46.4%. However, as the NCBE has predicted, "repeater" rates will continue to fall for the next several years. Look at the trend in "repeater" rates in CA: Feb. 2017: 46.4%; July 2017: 36.6%; Feb. 2018: 31.3%; and July 2018: 22.4%. This precipitous 50% decline in CA "repeater" rates will make it much more difficult for 8 CA law schools to come close to meeting the 2-year UBP for 2018 graduates even though they met that standard for 2016 graduates.

Do you agree that if the California "repeater" rate does not significantly improve from its current 22.4% that many more CA law schools will be at risk of not meeting the UBP standard for 2018 graduates?

David Frakt

William -

I agree that there is a significant risk that several California schools will fail the 75% UBP Standard for 2017 and perhaps even more for 2018. The reason for this is that several California schools dramatically lowered their admissions standards in 2014 and 2015, engaging in reprehensibly irresponsible admission practices. Those schools that admitted high numbers of extremely high risk will probably not meet the Standard and that is exactly why this Standard exists. And schools with responsible admission standards may also fail to meet the standard if they don't do a better job at preparing their students for the bar exam. As for repeater rates, there is a basic flaw in your math. The repeater rate is not for first time repeaters, it is for all repeaters. There is now a huge backlog of graduates who never should have gotten into law school who are taking the bar over and over again in California and my sense is that is what is driving down the overall repeater rate. What the UBP rate shows is that those students taking the bar in California with reasonable aptitude will pass within two years at a similar rate to non-California schools. I am not sure which 8 California schools you are referring to. There are many very good California law schools with high diversity. I reject the premise that schools can only achieve diversity by admitting minorities who are likely to fail. There are plenty of bright minority students in California with reasonable aptitude for the study of law.

anon

Interesting how David chose a cut off -- 70 instead of 75 - that allowed avoiding mentioning GGU, except in terms of PRAISE! This is truly striking. As I read it, Rosin mentioned GGU as failing the new standard for both 2015 and 2016 classes. Is this not correct?

At least there is some improvement in that David seems to be now willing to admit that his single factor theory of law school effectiveness (LSAT score) fails in numerous instances. He states:

"Suffice it to say that the schools that are outperforming the competition must be doing something right (especially those that have managed to do so repeatedly), and schools that are doing more poorly than expected must be doing something wrong."

Ok, that sort of gets to the point.

But, to regular readers: think about the amount of effort just to get to that little concession. And still, the concession only goes so far: "I will not speculate on why this is so, since I don’t have insight as to what is going on at all 200 law schools around the country."

Yet, David, you seem to draw conclusions about what is going on at all 200 law schools around the country, based on your LSAT single factor theory.

So, it appears that there are still "kudos" from David for those who do better, but only a sort of evasive, shuffling feet and "gee, I don't know" when it comes to faculty underperformance: even at schools that were subject to recent ABA sanctions (probation), improved, and then slid right back down into the ways that led to the first probation: to those ways that create horrible detriment to young lives while these faculties greedily exploit their cushy positions.

David: you likely don't know about all 200 law schools, but I believe you have worked in the arena and I seem to recall you have openly invited invitations to consult (perhaps in jest?). You do claim to know what is going on at all these schools (LSAT scores mean everything, sort of). So, in all fairness, one has to ask you to be transparent about your interests, if any, in promoting/demoting any particular schools.

All in all, I think you are doing some good work, David. But, there are certain big holes, it seems to me. You do seem to have an ax to grind and you do adhere to a narrow theory that is proven to be unreliable in enough instances to make it suspect, at least to me. At best, LSAT score is a factor, but a good faculty can produce better than expected results, and a lazy incompetent faculty can get worse. And, as they say, that is the truth and just plain old common sense.

William W Patton

David,

You make broad statements regarding California ABA law schools. However, the facts simply do not support your narrative. In your Part I and Part II expositions you have now twice stated that CA schools starting in 2011 through 2015 lowered the entering students’ LSAT’s scores and that starting in 2016 they raised those scores. Your clear implication is that the lower LSAT scores explain the lower recent CA first-time bar examination scores.

The data is inconsistent with your theory. LSAT scores among the schools that I claim are at risk for 2018 graduates, such as Southwestern, Golden Gate, and California Western during 2011 through 2017 barely fluctuated, and there is no causal link to bar exam passage rates and those LSAT fluctuations. For instance, consider Southwestern:

2013 LSAT: 155/152/150
2014 LSAT: 154/151/149
2015 LSAT: 154/152/149
2016 LSAT: 155/152/149
2017 LSAT: 155/152/150
2018 LSAT: 155/153/150

This data demonstrates that the mean LSAT at Southwestern varied by only 2 points and the 75th percentile varied by only 1 point, but Southwestern’s first-time California bar passage rates had a dramatic fluctuation - 2016 (2013 Class): 38%; 2017 (2014 Class): 57%; and 2018 (2015 Class): 50%. Your and LST’s theory that LSAT’s predict and explain bar passage rates simply do not work here. Your LSAT predictive theory is that the 2013 class with the highest overall LSAT’s should have had the highest bar passage percentage. The only problem is that the 2013 class had a 19% lower passage rate than the 2014 class that had students with lower LSAT’s.

Southwestern is not an isolated example. In a longer article I will demonstrate this same statistical pattern (CA schools with relatively constant LSAT’s but with dramatically fluctuating first-time bar passage rates) for many of the other at-risk CA law schools.

anon

W Patton

I agree with your point: Frakt's LSAT-only theory is flawed and contradicted repeatedly by the facts. It can't be that his theory is right but wrong in practice so often.

All Frakt is saying, really, is that, in general, if a school admits the students with the worst scores on standardized tests, then those students will likely perform worse than others on standardized tests. Wow. That's quite an insight. The problem is that it basically ignores a little thing called THREE YEARS OF TRAINING IN LAW SCHOOL. Frakt's "you can't make a silk purse out of a sow's ear" theory is archaic, elitist and proved wrong, time and time again.

Your argument suggests that faculty performance can and does affect bar exam outcomes.

Do you concede this?

Or, do you argue that random factors result in performance at certain schools that improves when scrutiny is applied, falls off when the heat is off, and then improves again when scrutiny is again applied? Just what are you saying?

Scott Fruehwald

Anon,

I agree that three years of effective training can make a huge difference in outcomes. However, the problem is that many of the lower-tiered law schools are admitting students with low indicators, and they don't provide the kind of education you and I are talking about. Makes you wonder why they are admitting those students. It doesn't help diversity to the legal field to admit students who can't pass the bar.

Here is my plan for better educating students: How to Grow a Lawyer: A Guide for Law schools, Law Professors, and Law Students (2018) at https://www.amazon.com/How-Grow-Lawyer-Professors-Students/dp/1726737764/ref=pd_rhf_dp_p_img_4?_encoding=UTF8&psc=1&refRID=5A05AEWJ7JZGN4387TVA

David Frakt

My belief is that two things are required for a law school to produce a good first time bar passage rate. First, the school needs to admit students with reasonable aptitude for the law. I don't think that is "elitist". I just don't think law school is for everyone. Students from the bottom 25% of the LSAT with commensurately poor grades should not be admitted to an ABA accredited law school. Second, the school needs to have an effective curriculum that challenges students and pushes them to perform to their full potential. It is fairly easy to measure whether schools are meeting the first requirement. It is somewhat more difficult to measure the second element. While it may seem that I am simply stating the obvious when I say that those with very low LSAT scores are far more likely to fail the bar than those with LSAT scores at or near the median and above, there are still many who reject the correlation between LSAT scores and bar passage. While the number of law schools engaging in irresponsible admission practices has declined sharply since the ABA started enforcing standard 501 in 2016, there are still schools admitting students with appallingly low entrance credentials. (The ABA's unfathomable decision to let WMU Thomas Cooley off the hook without extracting any meaningful concessions on admissions from the school did not help matters.) When law school Deans and the general public bemoan falling bar pass rates, it is important for someone to point out that these falling bar pass rates generally track the decline in admissions standards 3 years earlier. There is no question that law schools with thoughtfully developed programs designed to prepare students for the bar (like FIU, for instance) can have a significant impact on the bar passage rate. Of course, bar pass rates will fluctuate for a variety of reasons. For example, some schools may do a better job teaching some skills or subject areas than others, so in a year where those areas are emphasized on the bar, the rate might go up, and in a year where other areas are emphasized, the rate might go down. Over 4 administrations of a bar exam, those fluctuations are likely to level out and the the UBP should end up being fairly constant if the school's admission policies remain the same and the curriculum and faculty also remain constant. Transfer attrition from the top can also have a significant impact on bar passage rates as some commenters have noted.

David Frakt

In response to William Patton's comment

First, I don't have an LSAT only theory. LSATs are the best predictor of ultimate bar pass success that we have available before law school, so that is why I believe they should be a very important factor in admissions. But I freely acknowledge that many factors contribute to the success or failure of individual students and of classes as a whole. I have written in the past about some of the positive steps that we took when I was at Western State to raise the bar passage rate while our admitted student profiles remained relatively constant. In response to the commenter who is obsessed with the faculty at Golden Gate (talk about having an ax to grind), I agree that a lazy and incompetent faculty could certainly negatively impact bar passage rates. I am just reluctant to make a sweeping accusation about an entire law school faculty when I don't know a single person on the faculty and have no first-hand knowledge of the school. And by the way, I was not praising Golden Gate, I was simply noting that a 75% UBP rate is not a very high bar, as demonstrated by the fact that even Golden Gate, with a weak student body (and according to you, a horrible faculty) ALMOST made it.

While I can't account for every fluctuation at a school with relatively steady admissions standards, I can point to many examples of schools that lowered their admission standards over several years (2011-15) and saw a steady decline in bar passage rates three years later (2014-18). For example, all three Infilaw schools,(Charlotte, Arizona Summit, Florida Coastal), Whittier, Thomas Jefferson, Charleston, WMU Thomas Cooley, South Texas College of Law, FAMU, Barry, South Dakota, Southern, Ave Maria, Valparaiso, Texas Southern, Touro, and New England School of Law fall into this category.

Mr. Patton, I guess I am unclear what exactly it is that you are advocating. Are you suggesting that law schools should continue to admit large numbers of students with LSATs of 146 and below, or even 144 and below, and poor grades, and still be found in compliance with Standard 501? Should only minority students with such poor entrance credentials be admitted or also white students? Do you consider it acceptable for an accredited law school to have less than a 75% ultimate bar pass rate 2 years after graduation? Should a lower UBP be considered acceptable only if a law school has a more diverse student body?

I'm not sure exactly what it is that you are trying to prove, but I look forward to reading your article.

Scott Fruehwald

"Second, the school needs to have an effective curriculum that challenges students and pushes them to perform to their full potential."

The most important thing is effective teachers.

Jim Oleske

"Transfer attrition from the top can also have a significant impact on bar passage rates"

David - Isn't it just as important to look at non-transfer attrition from the bottom? Take, for example, Widener-Commonwealth from your list of ostensibly over-performing schools. Their first-year attrition rate for the class that entered in 2013 was an astonishing 32.4% percent, and 22 of the 24 students who departed were dismissals/drops as opposed to transfers. While not as dramatic, at least four other schools on your kudos list had first-year attrition rates of 11% or more with all or most of the attrition being non-transfer. Given that dynamic, is it really true that we can conclude that these schools "must be doing something right"?

I should add, I suspect *some* schools on that list *are* doing something right. And I do think bar passage rate is a very important metric. But unless that metric is looked at in combination with attrition, it strikes me as impossible to claim that a school is over-performing/over-performing in terms of preparing the students it enrolls for the bar as opposed to just experiencing inflated/deflated bar passage rates due to drops/transfers among its 1L enrollees.

William W Patton

David,

Until a few days ago you disagreed with the Council’s new standard requiring that all law schools have a 75% passage rate within 2 years of students’ graduation. In fact, you wrote a proposal that attempted to accommodate schools in jurisdictions with extremely high cut scores. Now, you state that “ the ABA made the right decision” based on the 2-year data for 2016 graduates.

What my earlier remarks pointed out is that your faith in the predictive value of LSAT scores does not work for schools in California and that the new 75% in 2-year standard will necessarily reduce diversity in California law schools that are housed in one of the most diverse states in the country.

In my last post I demonstrated that your narrative that falling bar passage rates were caused by schools from 2011-2014 dramatically lowering their LSAT scores is untrue regarding many California law schools. You provided this glib response to my empirical rebuttal: “I can't account for every fluctuation at a school with relatively steady admissions standards….” That is simply not an adequate response since the rule that you now wholeheartedly have adopted, the 75% in 2-year standard, will have a significant impact on the diversity of California law schools.

You ask what I support. I support a standard, like you did up to a few days ago, that provides a better balance among the ABA’s often competing goals of consumer protection, diversity, and access to justice. I think that those objectives are best balanced in high bar cut score states by maintaining, for instance, the old standard that a school must be within 15% of the state-wide average passage percentage.

Let me give you another example. Southwestern Law School, as I demonstrated in my last post, maintained its LSAT/GPA profile from 2011 through 2018. Therefore, under the LST model, its students should have had a fairly constant bar passage history. However, in reality, those rates fluctuated significantly. Under the LST model, and I suppose under the model used by “anon” and by “Scott” in this debate, perhaps the lower bar scores resulted from a poorer curriculum or poorer teaching. But, again, that is not the answer. Even though Southwestern’s bar passage rate fluctuated, its students’ performance on the bar was consistently better than the mean of all ABA law schools. Southwestern scored better than the national mean MBE score on every bar exam from February 2014 through July 2018. Therefore, it is not poor curriculum or poor teaching that caused the low bar passage rates.

Even though Southwestern met the 75% in 2-year standard for 2016 graduates, it is predicted under the LST and ABA models to fail that standard for 2018 graduates since its 2018 bar passage rate was only 50.4% even though its students outscored the national mean MBE by 3.4 points on the February 2018 exam and by 2.9 points on the July 2018 exam. The low bar exam score was obviously not caused by poor teaching or poor curriculum, but rather by California's 144 cut score.

You ask what relevance I see regarding a law school’s diversity. Diversity, as I stated, is a clearly stated goal of the ABA as expressed in its standards. Therefore, a bar passage standard (consumer protection) must be balanced with twin goal of diversity. That means that some compromise should be made in that balancing process. Let me demonstrate my point by comparing two law schools’ LSAT/GPA’s, academic performance (mean MBE score), and bar passage rates for the July 2018 exam.

Mercer: LSAT (154/152/150) GPA (3.49/3.32/3.06)
Passage Rate 73.7% Mean MBE 137.7
Diversity: 4% Hispanic 14.4% Black (African American)

Southwestern (154/152/149) (3.39/3.17/2.91)
Passage Rate 53.0% Mean MBE 140.9
Diversity: 22.3% Hispanic 8.6% Black (African American)

Under the Standard you now support, the 75% in 2-years model, a school like Mercer, with similar LSAT/GPA data, with a substantially less diverse student body, and with lower performing students (3.2 points lower mean MBE) will continue to thrive because of its state’s low cut score (135). However, a school like Southwestern with a much more diverse student body with similar LSAT/GPA credentials and with students who perform much better on the bar, will lose accreditation solely because of its state’s high (144) cut score. That result demonstrates that the new 75% in 2-year standard does not adequately balance consumer protection with diversity.

That is where you and I disagree. I think that the previous ABA standard that provided more latitude to schools like Southwestern by containing an exception for compliance if the school was within 15% of the state bar passage rate is a better standard. I think that the 15% rule or some variant of that rule, if limited to schools in high cut score states, will better balance the dual ABA goals of both consumer protection and diversity than the recently enacted 75% in 2-year rule.

But I would not stop there. I support the LST call for more mandatory reported data for prospective student consumers. Therefore, together with the 15% rule, I would now require all ABA law schools to publish in their ABA 509 reports their school’s mean MBE scores. That data will permit students to better compare all ABA law schools, not only within a single state, but also nationally, regarding schools’ academic outcome measures since passage rates alone are a reflection more of cut scores than of students’ comparative competence at graduation as measured by the bar exam.

De-accrediting schools like Southwestern which have not substantially lowered their LSAT/GPA’s, which provide meaningful opportunities for a diverse student body, and which produce students who continually outperform the national mean MBE score is not my definition of consumer protection. However, as you have made it clear, it is now your position because you support the 75% in 2-year standard with no exceptions for schools like Southwestern.

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