The deans of California law schools are renewing their push for the California Supreme Court to lower the required passing score for the bar exam. Coming on the heels of a record-low pass rate in California, the California Supreme Court is likely to feel pressure to move to lower the score after it declined to do so last year.
The deans are asking a lot of the Supreme Court to change a passing score that has remained the same for over thirty years. This is especially the case as the deans still haven't fully owned up to the cause of the decline in the passing rate. The passing rate declined not because "the State Bar of California has done it again," as the deans put it, but because law schools have enrolled less and less qualified classes after the dip in demand that began after the financial crisis. The reason that law schools did this is simple--law schools needed tuition dollars to cover the expenses of too many faculty and staff members relative to student demand. The reason for that is that law schools have too many tenured faculty making them unable to respond to shifts in demand.
I repeat these facts over and over because many people falsely believe that the State Bar has changed something to cause the decline in the passing rate. It hasn't. Although it is true that California has the second-highest passing score in the nation, it has had that score for decades. Contrary to the deans' assertions the primary cause of the decline in the passing rate is attributable directly to law schools themselves. Most of the decline (although probably not all) was predictable based on past performance of students with comparable incoming predictors (LSAT, GPA, and other known predictors). Several law schools in California enroll classes of law students most of whom predictably have less than a 50% chance of passing the bar upon graduation.
An equally troubling aspect of the debate is that the proponents of lowering the score do not admit that there are any negative effects from a lower passing score. When a colleague and I wrote a paper conducting an analysis showing that lowering the bar pass score would increase the rate of attorney discipline in California, the lobbying on the other side still didn't acknowledge that there are both costs and benefits to any bar exam pass score. Our analysis does not indicate that the costs of lowering the score are too high. There are also benefits to lowering the score. It merely shows that there are costs, which the "lowering the bar" proponents have not even acknowledged.
Until law schools own up to these facts and put reforms in place, it's hard to see why the Supreme Court should lower the passing score. A decrease in the bar passing score will likely prompt law schools to loosen admissions criteria further, leading to even worse performance on the bar exam. Why won't the same "crisis" replicate itself at the new, lower bar score? To receive a bailout, the law schools will need to credibly commit that they won't simply repeat the same behavior creating a future crisis.
I have often been accused of favoring the status quo on the bar exam. I don't. I favor a reform of the entire law licensing process that would open up many areas of law practice to new entrants (such as non-lawyer owned tech-based firms). In particular, transactional lawyers (those who work on deals rather than lawsuits) should not be licensed by the current bar exam. But because that reform is farther off, the near-term solution is to address the cause of the problem (the broken law school financial model) rather than the symptom (low pass rates on the bar exam).