The Truth About the California Bar Exam

I wanted to reemphasize a point I made last year about the California bar exam.  The high cut score on the California bar exam doesn’t really prevent law school graduates from becoming California bar members.  But it does delay law school graduates from being able to practice law in California by forcing many students who would have passed in other jurisdictions on the first attempt to retake the exam.

The recently released Ultimate Bar Pass (UBP) statistics from the ABA reinforce this point.

In 2017 the national average first time bar passage rate for graduates of ABA accredited law schools in 2017 was 77%.  This average included California takers, where the state average for all ABA law school graduates was 66% (it was 67% from California ABA schools).  Graduates from the 18 currently ABA-Accredited law schools in California made up about 10% of all graduates nationally in 2017 (3523 of 34966).  Removing California from the equation, the national average for the remaining US jurisdictions in 2017 was 78%, so the California first-time pass rate for ABA grads was about 12% lower.  Fast forward two years, and the national UBP rate for the class of 2017 is 89.47%.  For the 18 remaining California ABA-Accredited law schools, the UBP for the class of 2017 was 88.24%.   So, in the end, the high cut score in California only prevents about 1.2% of ABA law school grads (12 out of every 1000) from getting their law license, as compared to the number who would likely pass if California had a cut score at the national average.  

So, the argument that the high California cut score is dramatically affecting diversity in the bar probably is not a very good one.  Almost all the minority graduates who would pass a bar exam in a state with an average cut score also eventually pass the California bar.  But that doesn’t mean that the high cut score doesn’t adversely affect minorities.

Minority law school graduates do have a much lower first-time pass rate that their white counterparts in California. To provide one fairly typical example, let’s look at the statistics from the July 2017 California bar exam.  On that administration of the exam, white grads from CA-ABA schools passed at 75.1%, while black students from the same schools passed at 48.9%, Hispanic students at 57.1%, and Asian at 69.7% and “other” minorities at 64.7%.  (These are the California State Bar’s racial/ethcnic reporting categories.)  That means that minority graduates disproportionately are forced to retake the bar, sometimes two or three times, before passing.  (Interestingly, the passing rate for repeaters is pretty similar for all racial/ethnic groups. For July 2017, white repeaters passed at 38.6%. black repeaters at 29.5%, Hispanic at 35.0%, Asian at 35.3% and Other at 38.7%).    Retaking the bar is an expensive proposition.  Aside from the cost of registering and possibly additional bar prep fees, there are huge opportunity costs in terms of lost income while waiting 6 months for each opportunity to retake the exam.   If we assume that minority graduates (and their families) are, on average, less financially well-off than their white counterparts -- a very safe assumption -- this means that the high cut score is disproportionately impacting those who can least afford it.

The theory behind the bar exam is that it is for consumer protection. The cut score is supposed to weed out those who are not competent to practice law.  But if the high cut score simply forces recent graduates to take the bar two or three times before ultimately passing, is it really accomplishing anything by way of consumer protection?   I don’t think so.  The bottom line is that the California Supreme Court absolutely should lower the cut score to at or near the national average, but not for the reasons that most people have argued.  Leaving it where it is is simply gratuitously cruel.

The following chart shows the 2017 first time and ultimate pass rates for the 18 remaining California ABA-Accredited Schools (Thomas Jefferson, Whittier and LaVerne are no longer reporting)

Bar Pass Outcomes for Calendar 2017 Graduates within Two Years of Graduation
				UBP	2017
School Name	2017 Graduates	2017 Takers	2017 Passers	% That Passed	first time pass %
Total	3523	3436	3032	88.24%	CA ABA Ave: 67%
STANFORD	194	182	181	99.45%	96.59%
UC BERKELEY	305	298	290	97.32%	91.19%
UCLA	350	348	332	95.40%	87.24%
USC	211	206	196	95.15%	88.85%
UC IRVINE	95	93	87	93.55%	80.00%
LOYOLA MARYMOUNT U-L.A.	293	286	265	92.66%	74.32%
UC DAVIS	165	160	148	92.50%	77.02%
SAN DIEGO, U OF	201	194	173	89.18%	77.36%
SANTA CLARA U	134	131	116	88.55%	76.97%
CHAPMAN U	144	144	125	86.81%	63.88%
PEPPERDINE U	215	209	176	84.21%	66.22%
UC HASTINGS	278	270	226	83.70%	60.59%
CAL WESTERN	194	191	155	81.15%	59.69%
MCGEORGE (PACIFIC U)	130	127	103	81.10%	62.20%
WESTERN STATE COLLEGE OF LAW	77	76	59	77.63%	58.66%
SOUTHWESTERN	292	286	221	77.27%	52.78%
SAN FRANCISCO, U	158	151	116	76.82%	52.05%
GOLDEN GATE U	87	84	63	75.00%	48.86%