The State Bar of California recently announced that the pass rate for the July 2016 California bar exam was 43%. This is a multi-decade low, and has affected virtually every law school in California. Even among ABA-accredited law schools' first time takers, the passage rate was only 62%. Particularly hard hit was UC Hastings, which apparently had a 51% passage rate.
Hastings Dean David Faigman reportedly took to email and wrote a letter to the UC Hastings Community in which he laid the blame on the State Bar. He expressed "incredulity" at the "shameful" and "unconscionable" conduct of the Bar. His sentiments were echoed the next day by Above the Law's resident luminary Joe Patrice, in a characteristically thoughtful response that invited the State Bar to go copulate with itself (in different, more colorful words).
But what "shameful conduct" is Dean Faigman referring to? The California bar exam is scaled to the Multistate Bar Exam and is equated to have a consistent difficulty over time. The scoring system has been the same since 1987, as reported by actual experts here. So what exactly is the shameful conduct that the State Bar has engaged in? Does a consistent passing score of 144 (scaled to the MBE) over decades suddenly become unconscionable simply because the bar passage rate has been declining in the last few years?
I understand why Dean Faigman reacts emotionally about the results; I do too. The declining bar passage rates are challenging for all of us because we all know many students who suffered the heartbreaking disappointment and very real financial hardship of failing the bar. It is true that California has the second most difficult bar in the country, and passage rates are lower than in most other states, despite California having a better-than-average pool of examinees. It is possible, therefore, that a more lenient passing score is warranted. But as for the decline in the passage rate, it's not the State Bar that is responsible, as the State Bar has maintained the same passing score for decades. So who is to blame?
There are really only three inputs into the bar passage rate: the (1) effort and ability of students that law schools admit into the 1L class, (2) the education the students receive in law school/bar review, and (3) luck. None of these is the fault of the State Bar, and the third one is not the fault of anybody. The first two (admissions and education) are the fault of the law school.
The primary reason that bar passage rates are declining is not because of the conduct of the State Bar, but because of the conduct of law schools. Law schools are admitting less and less qualified students in an effort to bolster their bottom lines. And why do their bottom lines need to be bolstered? Because they have too many faculty relative to student demand for the schools, and are either reluctant or unable to reduce the size of the faculty to "right size" the law school relative to present demand for the JD.
The blame for the current crisis lies squarely on the bloated tenured faculties of American law schools. In every institution, ineffective faculty members continue to collect a paycheck for decades after their "sell by" date has come and gone. Many faculty members at many institutions should have never been hired to teach law in the first place. But the instinctive response of most affinity groups is to circle the wagons when danger appears, and that is exactly what has happened in law schools.
Deans and University Presidents need to take decisive action to cull the herd of law professors, allowing them to decrease the size of law schools and increase the quality of students admitted and the education those students receive. Once that is done, we can (and should) have a conversation about the cartel mentality that the State Bar of California (and many others) have. I, for one, would strongly support taking action to prevent state bars from acting in protectionist ways that are designed to limit competition. But law schools need to deal with their own cartel system--the perverted way in which tenure works--before laying blame on others.