A Guest Post on California's Unfair Bar Pass Rates by Mitchel Winick

Faithful readers of TFL will recall that I have been critical of California's high cut score on the bar exam, which results in unfairly denying or delaying admission to the bar of well-qualified law graduates.  For more on this topic, please read this informative post from Mitchel Winick.  -- David Frakt

Highest Performers but Lowest Pass Rate, there is Something Seriously Wrong in California

By: Mitchel L. Winick, President and Dean, Monterey College of Law

Great news! California bar examinees were once again among the highest performers in the nation on the July 2019 bar exam. According to last month’s released results, California examinees scored 17 points higher on the Multistate Bar Examination than the national mean (1428 v. 1411 scaled points). In MBE terms, this is a very significant difference and also predicts that these examinees performed better on their state-topic essays and performance tests because these scores commonly correlate. These exam results unquestionably reflect the high quality of legal education and preparation of California bar examinees.

But something is seriously wrong! Only 50.1% of these high performing examinees passed the California bar exam. Meanwhile, lower scoring examinees passed at a 20% higher pass rate in many other major jurisdictions. This dramatic difference results from California using an artificially high minimum passing score (“cut score”) when compared with every other major jurisdiction. To put this in context, California’s cut score of 1440 is significantly higher than the national mean of 1350. Furthermore, every other U.S. jurisdiction except Delaware has adopted cut scores between 1290 and 1390. The five most comparable large jurisdictions, including New York, use passing scores of 1330 to 1360. Only California sits as an outlier using 1440.

Why the difference in scores? Each jurisdiction has the authority to set a passing score that is intended to define “the minimum competency for the first-year practice of law” in their state. A common argument heard in California is that its high cut score ensures higher quality lawyers. However, the problem with this argument is that there is no evidence that bar exam scores have any relationship to lawyering skills. Furthermore, no evidence exists that states with lower cut scores have less competent lawyers or have higher incidents of malpractice or ethical violations. In fact, despite its artificially high cut score, California has one of the highest incident rates of lawyer discipline in the country. Therefore, the only measurable result of using an artificially high cut score in California is the conversion of some of the highest performing scores in the nation into the lowest passing rate.

How did this come to pass? The best evidence suggests that a passing score comparable to 1440 was established sometime between 1950 and 1955 by Bar leaders of that era. Keep in mind that law students and bar examinees of the 1950’s were almost exclusively white males. In fact, Harvard law school did not admit women until 1950. However, since that time, the demographics of law students and bar examinees have changed significantly. In 2016, the majority of students enrolled in ABA law schools were women and in 2018 the majority of examinees sitting for the July California bar exam were non-white. This raises the question of whether the continued use of a standardized licensing exam with an artificially high passing score effectively and fairly measures minimum competence across all categories of examinees.

State Bar statistics from the July 2018 bar exam indicate that if the national standard of 1350 had been applied in California, the passing rate of white examinees would have increased by approximately 43%. However, the passing rate of blacks would have increased by 125%, Hispanics by 68%, and Asians by 64%. This significant statistical differential by race/ethnicity for a mandatory state-sponsored licensing exam raises serious questions about the validity and fairness of the exam scoring. If diversity of the bench and bar is a priority, as it should be, we should all be questioning why California is using a scoring system that disproportionately bars competent minority candidates from the profession.

Why does all of this this matter? Fairness, inclusion, diversity, protection of the public, and access to justice should be important to all of us. From 2011 through the most recent July 2019 bar exam, an estimated 8,000 competent law school graduates who scored above the national mean standard of 1350 – approximately 1,000 per year – were denied licensure in California. These law school graduates earned the grades in law school and on the bar exam that reflect a level of competency that qualifies them for licensure in 48 other jurisdictions.

These are potential California lawyers who are unavailable to address the growing justice gap in California, to serve our communities in public defender and district attorney offices, or to contribute to the growing California economy in public and private law practices. These are intelligent young professionals who have risked hundreds of thousands of dollars in student loan debt, dedicated thousands of hours to the study of law, and forgone years of family and personal opportunities in order to become lawyers and serve our communities. These are potential lawyers who lost job and career opportunities despite being among the best and brightest bar examinees in the country.

So, what can be done? The California Supreme Court has the sole authority to adjust the cut score. Recently, four Supreme Court Justices met with law school deans representing the three categories of California law schools - ABA approved, California Accredited, and California Registered. As part of this informal dialog, the Court welcomed additional conversation and information-sharing related to establishing a cut score that meets California’s future professional needs. We should support the Court as it considers the future of the bar exam.

This is the opportunity for each of us to encourage these conversations among our legal colleagues. Otherwise, we risk a future where many of our best and brightest lawyers, perhaps our own children, will go elsewhere to study and practice law – to find a place where the standards of entry into the profession are fairer and more equitable. We risk having a profession that does not reflect the rich diversity of our state or address the broadening justice gap in our communities. Know that these are not hypothetical risks . . . recent reports indicate that these trends are already beginning.

California bar examinees are among the highest performers in the nation. A change is necessary to welcome more of these future lawyers into our profession.

Mitchel Winick serves as President and Dean of Monterey College of Law, a private, non-profit,California Accredited Law School system that also includes San Luis Obispo College of Law and Kern County College of Law. Winick is the former chair of the State Bar of California’s Law School Council and the Committee of Bar Examiners Rules Advisory Committee.

This article was originally published by the Contra Costa County Bar Association. Reprinted with permission.

https://www.cccba.org/article/highest-performers-but-lowest-pass-rate-there-is-something-seriously-wrong-in-california/

Comments

[Anon]

" The best evidence suggests that a passing score comparable to 1440 was established sometime between 1950 and 1955 by Bar leaders of that era. Keep in mind that law students and bar examinees of the 1950’s were almost exclusively white males. In fact, Harvard law school did not admit women until 1950."

So, women can't do as well as men on the bar exam? How sexist can you get?

[Mitchel Winick]

Dear Anon. Sorry that you misunderstood the point that I was attempting to make. Standardized licensure exams should be validated to evaluate the population being currently tested. The bar exam score was essentially “normed” on an all white, male cohort. That would fail any statistical validation for an exam that is expected to be measuring the minimum competency of current examinees.

[r]

President Winick, I'm glad to see that you responded to Anon's comment. However, I think I agree with Anon that your argument based on the origin of the cut score is problematic. It really sounds like you're saying: Yeah, a high cut score was fine for white males of the 1950's, but women and minorities of today need a lower bar.

You responded that licensure exams were "normed" on an all white, male cohort. I'm not sure this accurately describes how a cut score is (or at least, should be) determined. The purpose of a licensure exam is to measure a minimum competence for a particular field. For example, a civil engineer needs to show that they have minimal competence so that the public is protected from collapsing bridges. It really doesn't matter what cohort took the test when it was first designed; if it is a valid and effective test, it will serve its purpose of preventing licensure of incompetent engineers. If it is not valid or effective, based on original flaws, changing technology, or for any other reason, the test needs to be changed. But the identity of the test taking population is entirely irrelevant to that analysis. The "minimum competency" does not change based on the "categories of examinees," as your article and response strongly imply.

That being said, diversity is a real benefit of a lower cut score for all the reasons mentioned in your article and more. In weighing the costs and benefits of a high or low cut score, this benefit should certainly be included in the calculus, but without the implication that the test needs to be re-normed because there are now different "categories of examinees." Instead, one only needs to recognize, as a practical matter, that (i) a lower cut score increases diversity and (ii) increased diversity is a heavy additional weight that gets added to the 'low cut score' side of the scale.

The only relevance that the 1950's origin of the cut score should have to this analysis is that, in the 1950's, diversity was not recognized as of much value in the legal profession. Today's legal profession should not be beholden to the cost/benefit analysis performed in a previous era. Obviously, protection of the public remains a heavy value today, but adding the weight of increased diversity onto the scale certainly favors at least some reduction to the cut score.

[anonymous]

"In 2016, the majority of students enrolled in ABA law schools were women a . . .This raises the question of whether the continued use of a standardized licensing exam with an artificially high passing score effectively and fairly measures minimum competence across all categories of examinees."

I definitely read this as saying that women were not as capable as men.

Then you said in a comment, "Standardized licensure exams should be validated to evaluate the population being currently tested. The bar exam score was essentially 'normed' on an all white, male cohort. That would fail any statistical validation for an exam that is expected to be measuring the minimum competency of current examinees."

Are you saying that women have a lower expected "minimum competency" than men?

[Sue]

'Standardized licensure exams should be validated to evaluate the population being currently tested.' No, they should be validated to evaluate the thing being tested--minimum competency to practice the law. This shouldn't change between 1950 and today. Thus your post is very sexist because it suggests that women can't do as well as men on the bar exam.

[AnonProf]

If I could offer a clarification. Psychometricians opine that exams should meet the following criteria: (a) validity, (b) reliability, and (c) fairness. These criteria are technical words of art, not general vernacular, and there are sophisticated statistical analyses to determine whether a test meets each standard.

The "fairness" criterion would be the applicable one here. Generally, this standard requires that a testing instrument should determine a result (here, minimum practice competency) equally with respect to culture, race, gender, etc. An exam written in 1950 for an all white-male cohort would undoubtedly unfairly exclude people who are non-white and/ or female from practice. As a result, that exam would be deemed unacceptable today.

However, the NCBE has worked diligently to ensure that the bar exam meets each standard of validity, reliability, and fairness. (And, I say this as an occasional critic of the NCBE). So, the 1950 exam's fairness (in the technical sense) now is not an issue, because the exam is completely different from what it was at that time.

Therefore, I think what President Winick might be conflating, is the separate topics of fairness (in the technical sense) and cut scores. The 1950s exam may have been the origin of the cut score, perhaps, but "fairness" pertains to the EXAM ITSELF and not the cut score applied after the exam. The cut scores are beholden more to the processes of equating and scaling, neither of which actually occurred in the 1950s.

This is my impression of the conversation, but I'll be happy to be corrected. (And, BTW, these comments should not be read as addressing the issue whether the cut scores are problematic w/r/t race, gender, etc.)

[Female Cali Bar Exam Taker]

Dean. Do you have evidence that women score lower on the California bar exam, or are you just assuming that we do?

[anon]

Dean

Please tell us: what percentage of total students do these categories *as you define them* of students represent in the student body of Monterey College of Law: blacks, Hispanics, and Asians?

Obviously, one who advocates the inferiority of these groups on objective measures (and thus the need for affirmative action, i.e., lowering the standards, to fill a need for "diversity") will have admitted a greater number of these groups than the "white males" you so blithely disparage and denigrate as racists.

OTOH, if in fact this is a faux concern of yours, used as a cloak to advance the interest of your own law school's graduates, and if those graduates will not appreciably influence the diversity of the California bar, then I think the public reading your posts should know how must YOU have done to advance diversity in YOUR law school.

As for the "woman" angle, how risible can the Dean's argument be? He must be including "white" women in his opprobrium and specious implicitly stated argument that some groups are inherently inferior, no?

[PaulB]

Female Calif Bar Exam Taker, actually there is evidence. Just looking at the results for first time test takers for the last three (2017-2019) July test dates, women had lower pass rates by 3.7 to 4.2 percentage points teach year than men. For the record, I don't think that such a modest difference tells us anything about either the relative abilities of women vs men as law school students and lawyers, or about any bias in the test. Those with axes to grind may feel differently.

https://www.calbar.ca.gov/Admissions/Law-School-Regulation/Exam-Statistics

[Lisa D.]

Winick not only is being sexist, he is exploiting discrimination against women for his own purposes. Men and women score the same on the bar exam. One time men score higher, the next time women do. To state that women do worse than men on the bar exam is false stereotyping.

But Winick is not making these claims to help women, he is doing this to help his own law school. He is just using false claims about women as an excuse so that he can get more students for his law school. The irony here is that the graduates of Winick's law school have an abysmal record on the bar exam. So there is something seriously wrong in California! Winick owes an apology to all women.

[anon]

Lisa

It's worse than just "getting more students."

For law schools like Monterey, getting and keeping accreditation is a key concern: as is having a plausible answer to the justifiable questions that applicants will ask about the bar pass rate.

The conflict of interest is so troubling here. The FL has a track record of allowing self interested members of academia to spin facts to their putative advantage: see, e.g., the "best time to go to law school" fiasco a few years ago, that has never been acknowledged. Surely, apologies are owed for that one to anyone who relied on the claims that were made on these pages.

I don't know about an apology here. But this Dean, at minimum, should have prefaced everything he said to make excuses to lower the bar with a disclosure of the efforts by HIS LAW SCHOOL to admit the groups whose abilities he impugns, and the results of those efforts.