On Thursday a number of California law deans wrote pieces in the Daily Journal criticizing the State Bar of California over the abysmally low bar passage rates some of their schools achieved on the July 2016 exam. Many of the deans' perspectives displayed a profound lack of understanding of how the bar exam works and even ventured into conspiracy theories, leading them to place the blame where it doesn't belong. Sadly, not of them pointed the finger where the blame actually belongs, which is with the deans and their faculties themselves. This is an illustration of the psychological defense mechanism called denial.
The reason that the 2016 pass rate declined so much is that deans, faculties, and to some extent parent universities are not willing to downsize faculty and class size adequately to meet the current lower demand for the JD degree, as I wrote previously. The deans didn't mention a word about this in their blame shifting exercise. I could spend days knocking down all the incorrect information disseminated by these deans, so I had to pick a few of the most egregiously uninformed comments to discuss.
1. Multiple deans suggested moving to the Uniform Bar Exam (UBE) as a solution to the low pass rate. To quote the esurance commercial, "That's not how any of this works." I am personally in favor of adopting the UBE for increased portability of scores. But adopting the UBE will make no difference in the pass rate, because it does not require a particular passing score. The California passing score is based on the national Multistate Bar Exam (MBE), which is already uniform and directly comparable across the states. So although I think adopting the UBE makes sense, deans suggesting this as an answer to the low passing rate just don't know how the bar exam works. You would need to change the passing score.
2. Multiple deans suggested that the bar exam doesn't test the right skills for practice. That may well be correct, but the deans should be a little careful about their claims. That's because the bar measures almost exactly the same skills as law school grades do. I am certain that if the deans ran a correlation of their students' GPAs against the students bar scores, they would find a very high correlation, probably in excess of .5 to .6 as is common. So if the bar exam is not measuring the skills that are important for practice, it is doubtful that law school grades are measuring them either. That doesn't mean the criticism isn't valid, but it does mean that law school grades should be reevaluated before the bar exam should. This is especially true because the bar exam is a binary measure of "minimal competence," and most people eventually pass, whereas law school grades are used as a ranking mechanism.
3. Multiple deans suggested that the State Bar is "silently" changing the grading of the exam, or that the grading is not transparent. In reality, the California bar exam's grading has been the same since 1987, and is perfectly transparent to anyone who bothers to read the technical reports on the exam. The way in which the California bar exam is scaled to the national MBE scores is a standard technique well known to anyone who chooses to inquire. The reason California's pass rate was low is because California examinees, although above average in their MBE performance on a national scale, fell below the MBE score cutoff that has been in place in California since 1987. To suggest that pass rates fell because the California exam was graded differently this year is simply false. Indeed, even if the California portion of the exam had been graded more harshly this year, it wouldn't matter for the pass rate because the California-specific scores are scaled to the MBE. All the deans needed to do was to consult with one of us who actually understands the bar exam to avoid making this blunder (ruse?)
Essentially, the deans seem to be arguing that the State Bar should have proactively and unilaterally reduced the required passing score that has been in place since 1987 because the deans started admitting less qualified students in 2011. Isn't it instead the deans' responsibility to enroll a class that can pass the bar in the state where their law schools are located?
To be clear, I am personally deeply skeptical of the value of the bar exam. In part, that is because law school grades correlate so well with bar passage that the bar exam adds very little to what is already on a student's transcript (once you have taken into account the competitiveness of the law school). I favor adoption of the UBE and portability of scores, and I think the bar exam fails to test important aspects of the skills new lawyers need. Finally, I have already argued that the ABA's across-the-board 75% bar passage rate requirement makes little sense in a state like California. So I identify with many of the concerns and agree with many of the reforms suggested by the deans, but for reasons unrelated to this year's pass rate.
But let's be honest here. The deans are passing the buck for the failures they and their faculties have created. Trying to shift the blame from the deans' failures to make hard decisions about tenured faculty toward the State Bar isn't productive. The reason bar pass rates have declined in recent years (in most states) is that law schools are filling their classes with students with lower and lower "predictors" (LSAT and GPA), and lower-ranked schools are losing their better students in the transfer market. Contrary to what some of the deans assert, even declines of a couple points in the LSAT median and a couple tenths of a point on GPA medians have significant effects on the quality of the incoming class and bar pass rates. The schools keep packing in less qualified students because they have too many tenured faculty salaries to pay relative to current applicant demand. This is especially a problem in the Baby Boomer demographic bracket because of its large size.
The reason California has a low pass rate is because the required passing score is so high, and perhaps we should lower the passing score. But the reason why passing rates have declined is because of the actions taken by deans and faculties in law schools, not because of any change to the passing score or any other any action by the State Bar. The decision to allow admission standards to slump over the last several years is what produced this predictable change in bar pass rates. The solution is simple if the resolve is there: decrease law school expenses through accelerated faculty attrition. Once that's done, I would welcome a conversation about bringing the California bar exam's difficulty in line with that of other states.