Law Schools Miss the Mark on Bar Passage - Will the ABA Act?

I promised to provide a bar passage update when this year’s bar passage reports came out, and they are available.  You can access the individual school reports here. You can access the all-school compilations here at the ABA Statistics Page.

As a reminder, the ABA bar passage standard, Standard 316, requires that law schools attain an “Ultimate Bar Passage” (UBP) rate of 75% within two years of graduation.  The most recent reported results are for the class of 2019, the graduates of which had until the July 2021 bar exam to pass the bar.   So far, the ABA has found only three schools to be out of compliance with Standard 316, so let’s start by reviewing the results at those schools.

Let’s start with Western Michigan University Thomas Cooley School of Law.  In a recent column, I predicted that the class of 2019 would fall short of the 75% UBP standard because the first-time pass rate for that class was 35.8%.  Sure enough, the UBP for the class of 2019 was 59.51%.   And there is little sign of likely improvement in the near future, as WMU reported that the first-time par pass rate for the class of 2021 was just 37.91% -- roughly half the 73.05% ABA weighted first time average pass rate for the jurisdictions where Western Michigan students took the bar exam.

Western Michigan has now been out of compliance continuously since the new standard was announced.  (The Standard went into effect in 2019 for the class of 2017, after two years of tracking UBP rates.)  For the entire time that UBP rates have been tracked, WMU has fallen well short of the UBP Standard: class of 2015 - 69.75%, class of 2016 - 69.0%, class of 2017 - 66.0%, class of 2018 - 62.3% and now, the class of 2019 - the lowest yet at 59.51%.

Western Michigan Thomas Cooley was already formally found out of compliance with Standard 316 by the ABA at its May 2020 meeting and ordered to report back in 2021.   But the ABA has been curiously silent about WMU since.   It is not clear what, if anything, the ABA has actually done to Western Michigan for its non-compliance.  But surely, if Standard 316 is to be anything other than a complete joke, the ABA must do something now. 

Golden Gate University School of Law was found out of compliance in November 2021, after the class of 2018 fell short with a 57.50% UBP.  For the class of 2019, they have once again fallen short, with a UBP of 67%.  Disturbingly, their first-time pass rate for 2021 was just 35.07% - even though California has lowered the cut score to pass the bar.  For 2021, Golden Gate’s first-time rate fell from an already abysmal 44.07% in 2020 and is lower than the first-time pass rate for the class of 2019 (at 43.88%) which failed to make it to 75%.  So, there is no reasonable prospect of Golden Gate meeting the UBP Standard anytime soon.

Western New England was also found out of compliance with Standard 316 by the ABA at its November 2021 meeting.  But in February 2022, the ABA found the school to be back in compliance.  The question is – why?  According to the Western New England’s most recent bar pass report, the class of 2019 fell short of the UBP Standard at 74%.  This was admittedly close, but still below the required minimum. And the class of 2021 had a first-time pass rate of 55.07%, 22.77% below the weighted ABA average, and down 8% from the school’s 2020 first-time pass rate.  The class of 2019 had a first-time pass rate of 63.83% and still didn’t make it to 75%, so there is certainly no guarantee that the class of 2021 will make it.  The ABA should reconsider its decision to find Western New England back in compliance. 

Another school in trouble is University of District of Columbia.  UDC barely made the UBP for the class of 2018 at 75.38%.  But for the class of 2019, they fell well short at 60%.  Perhaps more concerning, their 2021 first-time pass rate was only 32.5%, down from a relatively robust 64.2% in 2020.  This means UDC will probably make the UBP standard for the class of 2020, but likely won't make it for the class of 2021.   UDC's uneven performance should engender some kind of response from the ABA.

Another school that the ABA should take a close look at, and which probably should be found out of compliance, is Appalachian. Appalachian was pretty close with the class of 2019, with a UBP of 73.33%, but their 2021 first-time pass rate was just 33.96%, down from a dismal 41.18% first-time pass rate in 2020, which was down from 48.00% in 2019.  (Appalachian did make the UBP for the class of 2018, but had only 27 graduates that year.)  Appalachian is clearly going in the wrong direction, and their admitted student numbers suggest that problems will continue, as Appalachian has been one of the 3 least selective law schools in the country in recent years.

Overall, Standard 316 seems to be working and attainable.  Of the 193 schools in the continental United States reporting, all but 7 made the 75% UBP standard.  The two schools that failed, in addition to the five mentioned above, were Ave Maria at 67.21% (last year UBP: 83.58%, 2021 first-time rate: 63%), and Vermont Law School at 67.54% (last year UBP: 82.84%, 2021 first-time rate: 59% ).  Both of these schools should be able to self-correct.  No other law school was below 77%.  

KUDOS: The overall UBP was 91.17% up from 89.99% last year.  26% law schools were at 97.5% or higher.    Law schools outperforming their peers include Belmont at 100%, Campbell at 98.13%, Liberty at 98.04%, Ohio Northern at 97.87%, and Georgia State at 97.85%.    

CONCLUSION:  The burning question for the ABA is this:  Does Standard 316 have any teeth?  So far, there do not seem to be any real repercussions for being out of compliance.  I, for one, consider this to be unacceptable.   At a minimum, the ABA must take firm and decisive action against Western Michigan and Golden Gate for their persistent non-compliance.  Standard 316 is easy to meet if law schools practice sound admissions policies and provide a decent legal education.  A law school that can't meet this minimal standard does not deserve to be ABA-accredited.  

 

Comments

[anon]

And, let's not forget to look at attrition rates.

Let's look, for example, at the GOLDEN GATE UNIVERSITY - 2021 Standard 509 Information Report, at Academic Attrition 2020-2021, JD1, Black or African American, %: 33.3!

(David, this seems like the report must be in error or perhaps I am reading the report wrong? It just can't be this stunning a result.)

David, does such a result, if accurate, support a claim, if GGU were to make such a claim, that the law school is affording an "opportunity" to attend law school that is not otherwise afforded by other reputable law schools in the Bay Area?

Given the combination of the attrition rates and bar passage rates, how should regulators observe the sort of "opportunity" afforded here?

Specifically, should any law school be permitted to collect tuition where students' "opportunity" provided is assessed objectively in these terms? Is not discontinuing eligibility for federally backed student loans really the LEAST a true regulator would suggest?

And, as I've asked in the past, can you please comment on how the ABA should evaluate a law school that was previously found to be so far out of compliance that probation was imposed (i.e., a second offender)?

[PaulB]

Given that the ABA now says that a standardized test should not be required for law school admission, why not go the next step and say that requiring a bar exam to practice law is racist due to disparate impact on underrepresented minorities? That'll solve all your problems.

[David Frakt]

Anon - Re: Golden Gate Black/African American academic attrition. You are correct that 3 of 9 African American 1L students were subject to academic attrition in 2020-1. These numbers are so small that I don't think we can draw any major conclusions from them. I note that only 7 African American students matriculated in this year's class out of a class of 150. However, Golden Gate does admit large numbers of minority students overall - 80 out of 138 students that provided information about their race were designated as "People of Color".

Law schools at the bottom of the pecking order always struggle to get qualified African American students because higher ranking schools practicing affirmative action will admit, and in many cases, offer significant scholarships to, African American students with credentials in the range that lower ranking schools are trying to attract.

Because virtually all law schools admit African American, Hispanic, American Indian, Alaskan Native and Pacific Islanders with lower entrance credentials than White and Asian students, attrition rates are typically much higher for these minority groups than for White and Asian students. Bar passage rates are also typically much lower. (see my next comment) And please don't call me a racist for simply stating facts. I am not suggesting that members of ethnic or racial minority groups are any less capable. I am simply noting that lower academic credentials lead to higher attrition rates and lower bar passage rates. Minority students with good academic credentials tend to do just fine.

[David Frakt]

I am very concerned about the misguided effort to remove standardized tests from the law school admissions process. You are quite right to note that bar passage rates for several minority groups are routinely lower than they are for White bar takers. If you look at this year's bar passage statistics from the ABA broken down by race https://www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/statistics/2022/2022-bpq-national-summary-data-race-ethnicity-gender-fin.pdf you will find that white students in 2021 had a first time bar pass rate of 85% while Black students were at 61%, Hispanic students at 72%, Asian students at 79%, Native American at 70% and Hawaiian at 47%. For Ultimate Bar Passage from 2019, White Students were at 94%, Black students at 81%, Hispanic students at 87%, Asian Students at 89%, Native American at 89% and Hawaiian at 83%. For first time takers in 2020, White students were at 88%, Black students at 66%, Hispanic students at 76%, Asian students at 80%, and Native American and Hawaiian at 78%. For UBP from 2018, White Students were at 93%, Black students at 79%, Hispanic at 84%, Asian at 88%, Native American at 86% and Hawaiian at 71%. (Note - the small numbers of Native American and Hawaiian students lead to significant swings in the percentages from year to year)

[anon]

David

The point is this: don't call yourself an "opportunity" school if "These numbers are so small that I don't think we can draw any major conclusions from them. I note that only 7 African American students matriculated in this year's class out of a class of 150."

We could spend some time on your "people of color" claims, but, the point is made.

With respect to the other issues raised you have, once again, ignored the relevance of a history of probation.

Because it takes so long for the ABA to take any action, have you no view of the weight that should be assigned to the fact that a law school has repeatedly been subject to this sort of quandry?

How many lives have been burdened with debt, occasioned by enticement to attend this law school while the ABA delays?

What conclusions should we draw from the fact that you have pointed out, in the past, that GGU has admitted classes that, if I am reading your posts correctly, according to your predictive measures, should have done better? Can you never draw any conclusions about the performance of a faculty; a shuffling of Deans who make promises to do better; a strong record of repeated failures?

Finally, are there not enough law schools in California to provide "opportunity"? You have answered this question: "higher ranking schools practicing affirmative action will admit, and in many cases, offer significant scholarships to, African American students with credentials in the range that lower ranking schools are trying to attract."

That's correct, David. Golden Gate University School of Law offers no "opportunity" that isn't available elsewhere: at a much lower risk.

People quibble about the relevance of the bar exam, but here is the bottom line: No pass, no practice. Take a look at the tuition GGU charges. Take a look at its website, and what it promises.

If the ABA has rules about all this, for what purpose? To pretend it is an "accreditation" agency?

[David Frakt]

I have called for the ABA to "take firm and decisive action against Western Michigan and Golden Gate for their persistent non-compliance." I advocated for an 85% Ultimate Bar Pass Standard and I still think that is where it should be. Given how lenient Standard 316 is, I certainly believe the Standard should be rigorously enforced. It does seem that Golden Gate is underperforming compared to some other schools which admit students with similar entrance credentials, but since I have no personal knowledge about the school, I am not going to speculate on the reasons for their underperformance. I agree that repeat failures to meet multiple standards would be an aggravating factor in considering appropriate sanctions.

[anon]

Thank you David.

It would appear to be reasonable that "three strikes" would be inappropriate for these types of violations.

In other words, let's consider hypothetical Law School. Law School goes on ABA probation. By way of certain "means" (that should be examined in detail) it manages to get itself off of that probation.

Then, Law School, within a relatively brief time, once again fails to meet even the "lenient ABA standard" as you describe it.

Suppose that Law School shuffles thru Deans, who promise to do better, and again utilizes "means" to scrape by, only to fall back into noncompliance when the heat appears to be off?

How many decades of this should the ABA approve? Again, for how long should the consequences on the many lives affected by borrowing money to pay tuition for the "opportunity" to attend a failing and failed institution of higher learning be disregarded?

What credence should be given to Law School, if it advances an argument that it is a "opportunity" law school, under these circumstances? What if the numbers don't lie?

Suppose there are more than enough opportunities to attend law schools in the same area that are not "underperforming compared to some other schools which admit students with similar entrance credentials" that actually admit students in need of special opportunity regularly and with far more promise of success?

What if Law School's actual contribution to
"opportunity" is de minimus, especially when compared with the consequences to some young people induced to go into debt to attend that law school?

Should Law School be allowed to maintain a web site that makes bold and brash claims about its greatness, under these circumstances?

Should the ABA be disempowered to hold so much sway over the control of federal student loan eligibility if its oversight is meaningless and without any effect? It is far past the point that the DOE should step in to examine the ABA oversight role.

[anon]

Reading the comments above, I just have one more question: David, are you aware of GGU's record of ABA "sanctions" (e.g., probation)? You say above:

"I agree that repeat failures to meet multiple standards would be an aggravating factor in considering appropriate sanctions."

That statement really is a bit vague, as it could be intended to refer to the present circumstances only.

As one who so assiduously follows these matters and comments so frequently thereon, it seems fair to ask this question, because I don't recall, in the many many threads and comments you have posted, that you have demonstrated awareness of the history of GGU and the ABA (this century, btw).

Please feel free to insult me and question my motives for asking, but I think this is a fair question, as I have asked you many times to answer it. GGU is a special case, IMHO, because of its record, and it is important, it seems to me, to make note of it, rather than ignoring it or minimizing its importance.