Guest Post: California Supreme Court Fails Bar Examinees by Mitchel Winick

Dear Readers,

 

I wanted to share this interesting perspective from Mitchel Winick.     

 

California Supreme Court Fails Bar Examinees

 

It is July, and that means another bar exam is looming large for recent law school graduates. In California, it also brings our attention back to the ongoing effort to have the California Supreme Court adjust the bar exam minimum passing score from the arbitrary and unvalidated 1440 cut score that is currently in place to the national mean score of 1350. As Dean of Monterey College of Law, a California accredited law school, I understand that there are those who shrug off this issue as mere whining of California law school deans about low pass rates. However, I would like to offer some facts that better frame the importance of this issue to the profession.

 

First let me say that recently released bar data provides the best response for the second most common question that I get . . . "why am I arguing for dumbing down the bar exam?" I'll let the data speak for itself . . .

 

February 2019 - MBE Scores – First time takers

1340      National mean score

1371      California mean score

1374      Monterey College of Law mean score

 

The results . . . California examinees outscored the nation . . . and our Monterey College of Law examinees outscored California.  

 

Despite these high-performance scoring results, because California uses an artificially inflated minimum passing score of 1440, the California first-time pass rate in February 2019 was 41% and the MCL first-time pass rate was 40% (the 1% statistical difference is due to MCL’s small cohort). In comparison, based on a national mean passing score of 1350, the national first-time passing rate was over 60%. 

 

What is frequently overlooked in news headlines and articles is that California and MCL examinees do not have a 20% lower bar pass rate because they performed poorly. As the results indicate, California examinees outperform national examinees by more than 30 points. The pass rates are 20% lower because the California minimum passing score is artificially set 110 points higher than New York and 80-90 points higher than the other top five jurisdictions. According to the bar’s data, requiring a minimum passing score of 1440 means that a California examinee must score in the top 26% in the nation in order to get licensed in California. Comparatively, the national mean passing score of 1350 requires scoring better than 50% of all examinees.

 

Under what legal or public policy rationale can anyone argue that requiring a minimum passing score in the top 26% of all examinees is a fair measure of “the minimum competency for the first-year practice of law,”the legal standard that is supposed to be used for scoring the bar exam.

 

The "human cost" of this cut score disparity is reflected in recently released California bar exam statistics. From 2011-2018 more than 7,400 competent law school graduates who scored above the national standard of 1350 - almost 1,000 per year - were denied licensure in California solely because of the arbitrary use of 1440 as the California cut score.

 

Finally, let me address the first most common response that I get from currently licensed California lawyers and judges . . . "I passed at 1440, so why shouldn't everyone else have to as well?" 

 

I'll again let the data speak for itself . . . 

 

The California bar is 85% white, 65% male with an average age of 51. The diversity of the bar has changed very little over the past 20 years. It does not reflect the communities that we serve as officers of the court or the demographic and socioeconomic richness of California. The majority of California bar examinees are now minorities (52% in February 2019), so the problem is not in the diversity of successful law school graduates. The problem is that using a standardized test along with an unvalidated artificially high passing score has a disparate impact on minorities . . . as indicated by the State Bar’s own statistics. It perpetuates the same type of barriers to entry into the legal profession that have been repeatedly struck down as unconstitutional in most other licensed professions.

 

The California Constitution prohibits the use of a pre-employment state licensing exam that has a disparate impact on the basis of race, gender, or age. Recently released State Bar statistics reflect that by using the national standard of 1350, the number of successful white examinees since 2011 would have increased by 12.6%, but the number of successful minority examinees would have increased by 20.0%. If the diversity of the bench and bar is a priority, why are we not challenging the continued use of an unvalidated scoring system that systematically bars competent minority candidates from licensure?

At the end of this month another cohort of successful law school graduates will sit for the California bar exam. Before we unjustly deny licensure to another 1,000 qualified law school graduates, the California Supreme Court should take the necessary steps to adjust the minimum passing score for the California bar exam from 1440 to the national mean passing score of 1350.

 

Mitchel L. Winick is President and Dean of a non-profit, California accredited, law school system that includes Monterey College of Law, San Luis Obispo College of Law, and Kern County College of Law. He is the former chair of the State Bar Law School Council and a former member of the Committee of Bar Examiners Rules Advisory Committee.

Dean Winick invites comments to this article in the comments section, or you may email him personally at [email protected].

 

P.S. This is David Frakt - the ABA ultimate pass rate data indicates that California law students who should pass the bar eventually do pass the bar on their second, third or fourth try, but waste thousands of dollars on having to retest, and lose tens of thousands in lost income.  I agree that the California cut score is unjustifiably high.

Comments

[Mitchel Winick]

David, your point is exactly correct: The estimated number is more than $18 million in unnecessary exam fees charged by the State Bar of California from 2011-2018. The State Bar data indicates that since 2011, 22,277 additional exams were taken by candidates who would have passed at the national standard of 1350 and therefore would not have been subjected to the considerable cost of retaking the exam. This resulted in an additional estimated cost to examinees of more than $27 million and allowed the State Bar to charge an additional $18 million in bar exam fees.

$820.00 bar exam fees x 22,277 exams ​= ​$18,267,140.00
$400.00 hotel/mileage (2 days) x 22,277 exams ​= ​$ 8,910,800.00
$1,220 estimated cost per examination ​= ​$27,177,940.00

It also resulted in an estimated $150 million in lost wages. Of course, the additional exam costs do not even begin to measure the economic loss in wages to those examinees who were delayed licensure and a lawyering job by being required to repeat the bar exam six to 12 months after initially failing at 1440. Assuming that the 7,416 examinees who would have passed at 1350, but who were failed at 1440, lost a modest $20,000 in enhanced wages as a licensee over the 12-month delay in licensure, the collective lost wages exceed $150 million! Even more devastating is the catastrophic professional derailment of competent bar examinees who would have passed at 1350 but have never passed at 1440.

[anon]

What percentage of MCL grads obtain full time, JD required, long term employment within one year after graduation?

IF the SAT, LSAT, and MBE all show disparities based on "minority" status (apparently, in your lexicon, anyone who doesn't self identify as "white"), should all of these examinations be disregarded? What assessments do you propose?

[Mitchel Winick]

Happy to oblige, but California-accredited law schools report a different employment number specifically because the California first-time pass rate is so low at 1440 that it takes many of our graduates at least two opportunities to pass the bar. For that reason, our data is reported three years after graduation, not one year. Second, since we are regional law schools that serve what are considered rural counties (in our case Monterey, San Luis Obispo, Santa Cruz, San Benito, and Kern) we historically have a large number of graduates who choose to serve in government, business, non-profit, and the public sector. These are commonly categorized as JD preferred, not JD required positions. Therefore, state law in California requires us to report the number of graduates who have a JD required or JD preferred job three years after graduation. Our number is consistently 90-95%.

To your second point, without getting into the details of standardized testing, speediness, and power testing studies as they relate to race . . . you do not need to resolve that issue to address the 1440 vs 1350 disparity. There is no question that we should be questioning whether the format and content of the bar exam have any relationship to practice skills. However, we do not need to wait for those studies to be completed (years from now) to address the inequity of California continuing as an outlier using the arbitrary and unvalidated cut score of 1440 in the face of the national standard of 1350.

[anon]

Mitchel

Ok, so, in 2019, as I understand your response, we still don't have validated studies to demonstrate whether the format and content of the bar exam has any relationship to practice skills and studies concerning this issue won't be completed for "years."

Accordingly, if you don't have the support you suggest would be relevant and necessary to demonstrate whether the "format and content of the bar exam has any relationship to practice skills" then one supposes you do not and could not support a different assessment at this time: give the years of use of the bar exam and the use of a bar exam nationwide for the same period.

If we limit your call to a change in the cut rate on the MBE, the question you raise about California is that California imposes a stricter standard than other states. This, again, has been true for a long, long time. Some states are very easy, California is very hard.

Yet, every time, the "best" schools in California produce the "best" results. In other words, students who are good test takers (on this sort of test) do just fine.

SO, we are back to your original claim: the test is not a good test.

ONe is inclined to say: prove it.

The burden is on the school producing an inordinate number of graduates who don't pass the bar to prove the bar is the reason. You have admitted you really can't do that.

IF the reason is that "society isn't fair" we could argue all day long about whether professional schools should remedy that by changing the assessments.

Just out of curiosity, what percentage of MCL students are "minority", e.g., "not white."

[Paul Keeper]

Dean Winick: David Frakt makes a good point about California law school grads having to "waste thousands of dollars on having to retest, and lose tens of thousands in lost income." Have you any more specific estimates on the dollars lost to the individual law school grads, as well as an estimate of the cost to California as a whole?

[anon]

Interesting, Paul argues "California" loses money by not having more lawyers.

Really? How so?

Increased taxes paid on income?

[Mitchel Winick]

Anon, it is not a question about whether California has a stricter standard, it is a question whether 1440 is a reasonable measure of "the minimum competency for the first year practice of law." If we look at comparable jurisdictions, New York uses 1330, Texas, Illinois, and DC use 1350, and Florida uses 1360. 43 jurisdictions are 1360 or below. The national mean is 1350. California at 1440 is vastly outside of the industry norm. As a regulatory agency, the burden is on the state, not the schools, to prove that the mandatory licensing exam and score fulfill the industry standard of measuring minimum competency while not having a disparate impact on the basis of race, gender, or age. The fact that the State Bar hasn't been challenged to do this in over 50 years does not constitute a legal defense. Our school can show that its graduates achieve scores that meet or exceed the industry standard in 48 of the 50 other jurisdictions (Deleware is at 1450). It isn't about performance, it is about California as an outlier using an artificially high passing score that has never been validated.

[Mitchel Winick]

Paul, rather than strictly look at the potential loss of hundreds of millions in law school graduate salary opportunities (see my post above regarding $150 million in lost wages), I think that it is equally valid to consider the impact that artificially restricting licensure has on the access to justice cost within our communities. If we consider that a new associate will work 1,900 to 2,000 hours (excluding the mega firm sweat-shops) per year, when California denies licensure to 1,000 qualified law school graduates each year, it is the potential loss of 2,000,000 legal service hours - per year - just in California. Of course, those hours will be distributed across all practice areas and geographic regions. To effectively address the access to justice challenge that many of our communities are facing, we need to do more than just change the bar exam cut score and increase the number of qualified lawyers. We need our state and local bar associations and the law schools to do a better job of supporting pro bono, low-bono, limited fee services, and local advisory pro-per clinics. These are areas in which properly supervised new lawyers can have a significant and sustainable impact.

[anon]

Mitchel

It seems that your objection to the word "stricter" notwithstanding, your complaint is that California has a higher cut score than other states. Your sole criterion is a putative "industry standard" which, in turn, is based solely on saying that California is an "outlier" and thus doesn't comport with the "industry standard" because its cut score is stricter than other states.

There are many reasons that California has historically chosen to be stricter than other states. You can argue with those reasons, but it seems you don't. All you claim is that the standard California has chosen hurts persons "on the basis of race, gender, or age."

You appear to be wrong that the burden is on the examiners to disprove this claim, but I'm open to reading your judicial authority. At minimum, it seems you would need to answer a question about the "minority" composition of your classes (defined by you as "not white") and, now, you will need to add the age and gender of your classes as well and incorporate these factors into a rigorous, long-term analysis of your pass rates to show both correlation and causation. You will need to show that the main reason MCL grads don't do well on the Cal Bar Exam can be traced to these classifications.

Can you do that?

It would seem to this reader that you won't be able to do that, for several reasons. First, MCL grads, you say, would pass in other states. So, there is nothing inherently wrong here that is attributable to invidious discrimination; it is just a test taking ability issue. Second, the fact that your grad wouldn't pass in Delaware really undermines the argument about agency judgment; third, you make no case whatsoever about all the law schools that produce classes that pass the California Bar at very high levels.

Don't get me wrong. IT is very hard to pass the California Bar exam, and, good test taking skills, as measured by standardized tests -- the SAT, LSAT and MBE -- sort the student out who go to the "better" law schools and thus, by definition, pass the Bar in greater numbers.

But, to claim that the unfairness built into this system, if unfairness there be, is associated with "on the basis of race, gender, or age" and not socio-economic status is probably wrong (lest anyone say you are making judgments about ability on the basis of race, gender, or age). Moreover, you propose nothing to take the place of the Bar.

You just want to lower the passing score so more of your grads will pass on the first try. SOrry, but making very serious claims of discrimination to accomplish this seems a bit out of the realm of propriety.

[AnonProf31]

I'm discouraged that we're back to the point where law schools are claiming to have 90-95% employment rates by self-defining the term "employment." I agree with the proposition that CA's cut-score is too high, but let's not start feeling comfortable again with schools manipulating employment outcomes by lengthening the window and counting JD-preferred.

[anon]

AnonProf

Aside from being quite correct, IMHO, about the long time frame and use of "JD Preferred" to get to a seemingly suspect employment claim, it should be noted that the MCL Dean doesn't properly classify the employment of MCL graduates.

The category is not "JD preferred" according to the ABA protocols, it is "JD Advantaged" and this category includes, according to ABA Employment Protocol 203(b):

"(b) Presumptions, Considerations, and Exceptions
(1) Absent contrary information, no additional documentation is required for Employed – JD Advantage for a graduate in a position with the following job titles, and those included in the applicable section of Appendix E, because these positions are presumed to meet the requirements of Data Protocol 203(a)(1)(iii) and (a)(1)(iv):
..
(vii) Law Clerk;
(viii) Paralegal/Legal Assistant ..."

So. should we consider charging folks to obtain a law degree with the meaningful prospect to become a clerk or paralegal, the providing of an "opportunity" and something to boast about? Is it sort of misleading to include paralegals in sort of misleading employment claim about the nearly "full employment" of JD grads (how many people consult the ABA Employment Protocols to decipher the claims)?

[Mitchel Winick]

Anon. thanks for catching my mislabeling. The California Business and Professions Code § 6061.7(g)(5) uses the term "JD Advantage" not "JD preferred." You would think that I would remember that since I helped draft the statute and reporting form back in 2016 that added these new disclosure requirements to state law. The danger of casual commentary without editing!

California Business and Professions Code § 6061.7(g)(5) “Employment outcomes for graduates” means the results of a survey by the law school, taken three years after graduation, that breaks down the employment rate of graduates in each of the first three years after graduation, including the rate of employment of graduates in jobs where a Juris Doctor degree is required by the employer and the rate of employment of graduates in jobs where a Juris Doctor degree is an advantage in employment.

We are in agreement that no law school should be "charging folks to obtain a law degree to become a clerk or paralegal." Of course, you can't get (very many) "JD required" jobs without state licensure. The licensure rate in California, based on current bar score performance would be comparable to all other major jurisdictions (NY, DC, FL, IL, TX) except for California's use of an arbitrarily high cut score of 1440. At New York's 1330, California graduates would be passing at 75-80%, not 40-45%. I do not see anyone arguing that NY lawyers are not competent. This disparity is what we are asking the CA Supreme Court to address.

[anon]

Mitchel

Have you broken down how many of your grads, who have obtained work as a law clerk or paralegal," would be licensed attorneys, but for the disparity in the California cut score?

You have said: "we historically have a large number of graduates who choose to serve in government, business, non-profit, and the public sector. These are commonly categorized as JD preferred, not JD required positions."

Can you distinguish those who "chose" JD Advantaged positions from those who "chose" these positions only because they couldn't pass the bar within three years after graduation?

[Mitchel Winick]

Good and reasonable questions. Keep in mind that we are a small regional law school of 155 students. Our Kern County campus is new and will have its first graduating class in two years. Our other two locations in Monterey and San Luis Obispo graduate about 35 new JD’s per year (combined) which is a good size for two relatively small coastal areas that are not close to urban market areas. 100% of our JD/bar passers are either employed in JD required positions or in JD advantage positions by professional choice. Of the appx. 35% of our graduates who have not passed the bar over the past five years, we estimate (based on very limited State Bar data and self-reported student data) that 15% scored high enough to have passed at 1350 (but have never reached 1440 even with multiple retakes) and about 20% (based on their previous bar scores) are unlikely to pass or have chosen not to sit for other reasons (staying in current profession, moved, retired, community volunteers, etc.). At 1350 we would expect to meet or exceed the new ABA standard of 75% cumulative pass rate even though we are state-accredited and not subject to the ABA rules.

[anon]

Thank you for your response, Mitchel.

Yet, I don't think your response is responsive to the questions posed.

For example, it seems that 15% of your grads would have passed at the lower cut score. (I think you mean 15% of the grads, not 15% of the 35% who didn't pass). Of those, how many are among the " historically ... large number of graduates who chose to serve in government, business, non-profit, and the public sector" or, as you alternatively have put it, "stay[ed] in current profession" three years post-grad?

If you are correct that a large number of grads are employed in JD Advantaged positions (up to 95%, when combined with JD required), then there must be some conclusions that can be drawn.

ALl in Michel, I don't question your good faith. But, you must admit that, in almost any other setting, a person with a direct, personal stake in the outcome of an issue would be questioned about bias.

The fact that you "helped draft [a] statute and reporting form" would be, in the view of many, an instance that raises serious questions about industry leaders, self interested in sort of obvious ways, influencing the legislation and rules under which they are governed in such a direct manner.

Just to cap off this discussion, does MCL and do you, have a direct financial stake in changing the cut score so that MCL "would expect to meet or exceed the new ABA standard of 75% cumulative pass rate even though we are state-accredited and not subject to the ABA rules."?

[Mitchel Winick]

Dear anon (and any other Faculty Loungers), I am happy to discuss the history and experience of our three state-accredited, non-traditional, non-profit, community-serving law schools. Other than my children, after 14 years as Dean, it is my favorite topic. Feel free to call me at 831-582-4000 ext 1012 or [email protected].

However, getting back to the topic of the post, in February 2019 - the National MBE mean score was 1340, California's mean score was 31 points higher at 1371, and our MCL mean score was 34 points higher at 1374. California examinees outscored the nation and our Monterey College of Law examinees outscored California. New York successfully uses 1330 to measure the minimum competency for the first year practice of law. Texas, D.C., and Illinois use 1350 and Florida uses 1360 (these are the five largest and most comparable jurisdictions to CA) . . . but California uses 1440. The result is a 20+ percentage artificially high failure rate in California for no reason other than California's artificially high cut score. The State Bar's own data clearly raises the issue of disparate impact based on the use of an artificially high and unvalidated cut score. It is hard not to be biased against this systematic denial of licensure to competent, high scoring law school graduates, of our program and all others.

[anon]

Mitchel

I appreciate your very well practiced use of these numbers to keep repeating that more of your grads would pass if the cut score is lowered.

In any other situation, it seems to me, an institutional leader should be upfront about self-interest, non-profit or not. The efforts of any such institution -- using its leader to get as involved as you have described in drafting its own regulations (!) and, as seen here, lobbying so hard to change the rules to benefit itself -- should be viewed with some skepticism, IMHO.

I don't think you've really addressed the questions: for how many grads of MCL is the cut score truly determinative, and -- the big question -- the reason that MCL grads don't do as well as grads of other California law schools. You just don't get it: you can't just claim invidious discrimination and leave it at that.

At minimum, it seems you would need to answer a question about the "minority" composition of your classes (defined by you as "not white") and, you will need to add the age and gender of your classes as well and incorporate these factors into a rigorous, long-term analysis of your pass rates to show both correlation and causation. You will need to show that the main reason MCL grads don't do well on the Cal Bar Exam can be traced to these classifications. I don't think you have done that, and I don't think you can.

Moreover, again, waiving around political slogans works in many circles these days. But simply claiming that more lawyers would result in "social justice" is again, one of your claims that just isn't supported. California has a lot of lawyers, Mitchel.

Mithcel, I don't question your good faith belief that what is good for you and your institution is good for the legal system in California. It's only natural that you would so believe. But, all said, you have failed in my view to make your case. Simply reciting how many of your grads would pass the bar if the standards are lowered isn't a very good argument.