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Summary: Why are bar passage rates at historic lows? Surprisingly (or possibly not) much has to do with the law schools themselves.
Some might be disheartened while others might not care one wit that bar passage rates are at an all-time low.
The question is why are the passage rates at all-time lows?
Keep reading to find out.
Passage rates for the bar examine have been plummeting for some time now. This can speak to a combination of issues which range from poorly prepared law students who in some cases really should not be taking the bar, to law school curriculums that fail to instruct law students on the bar in general.
Needless to say, the bar is a tough and demanding exam that needs to be approached with strong commitment and seriousness. Few individuals, if any, just breeze through the bae exam.
In fact, these days, more prospective lawyers fail the bar exam than pass it, bringing to light even more pressure on those who attempt the exam a second and third or more time.
Add to the fact that law firms have started to frown on those who take more than three “sits” to take and pass the bar, and it’s easy to understand the paralyzing pressure this brings on recently graduated law students.
The Wall Street Journal states that only 40.7% of recent legal students passed the most recent bar exam. And to be honest, to legal experts, that figure is simply pathetic.
If a law school can’t prepare three-quarters of its graduates who take the bar exam to pass, it shouldn’t exist.
That is the view of the American Bar Association’s accreditation council, which is renewing a push to toughen requirements in the face of historically low passage rates for attorney-licensing exams.
The ABA group retreated from an earlier attempt after detractors said it would hurt schools with larger enrollments of minority students and those in states with more difficult exams.
While proposals to meet a 75% bar-pass rate are back on the table, critics of law schools continue to mount.
“If a school can’t get enough of its students to have a high enough pass rate, then there’s a problem,” said Barry Currier, the ABA’s managing director of accreditation and legal education.
To that end, it’s no wonder the percentage of law-school graduates passing the bar exam has plummeted in recent years, alarming legal educators and consumer advocates.
The National Score
Nationally, the average score on a key multichoice section used by most states fell in 2018 to a low not seen in decades.
That led to lower pass rates across states such as Florida, where the first-time test taker rate fell just over 4 percentage points to 67.2% on last July’s test.
In Texas, 73.4% of first-time takers passed last July, down 4.5 percentage points from 2017 but higher than in 2015. Some states have seen similar upticks, but that’s just “some.”
As can be imagined, declines have been especially acute in California, which administers one of the nation’s most difficult tests.
The state said in November that only 40.7% of test takers passed the most recent bar exam, which represents the fifth straight year where more prospective lawyers failed the bar than passed it.
Among first-time test takers who graduated from nationally accredited California schools, 63.8% passed.
Of course, many blame the trend to weaker-credentialed students who were admitted to fill seats in law schools following the last economic downturn, which has some truth to the claim.
Others blame the tests themselves or changes in the way students learn.
Regardless, casting aspersions do not the problem solve. The bar passage rates are lousy, and that pretty much sums up the issue at hand.
New proposals to solve an increasing problem.
Justifiably law schools have been put on the hook for the recent epic fails by graduated students on the bar exam.
To rectify this issue, the proposed new ABA standard would require 75% of a given school’s test takers to pass the bar within two years of graduation, or that school will risk losing accreditation.
An ABA analysis of 2015 graduates identified 19 schools that wouldn’t have met the new threshold that year.
Of course, while current rules essentially aim for the 75% benchmark, they do include several loopholes, including allowing schools to come within 15 percentage points of a state’s first-time taker pass rate.
But does that help the focus of these failures, namely the recently graduated law student?
“One size doesn’t fit all with law schools,” said Klint Alexander, the dean of University of Wyoming College of Law, who opposes the new rule.
The small law school graduates around 75 students a year, leaving it more susceptible to swings in passage rates, Alexander states.
At least 90% of graduates from 2015, 2016 and 2017 passed the bar within two years, according to the school.
The tougher scrutiny comes as the price of law school is rising, leaving many graduates who fail the exam with six-figure debt loads unable to practice law.
Mr. Currier said the mandate of the ABA council that oversees accreditation is to protect consumers—not keep law schools open.
“The council can’t just sit back and allow schools with a significant failure rate to continue to exist,” he states.
To that point, schools have reacted to the ABA scrutiny and falling passage rates by tweaking curriculum to include more bar-prep courses and trying to intervene early if students appear likely to fail.
A study of bar-passage predictors among University of Cincinnati College of Law students found that “students who take more rigorous upper-level bar courses are more likely to pass the bar,” said Amy Farley, one of the lead researchers.
Stephen Ferruolo, dean of University of San Diego’s law school, said students in their final year now often have to choose between taking courses that will help them on the test and those more aligned with their future career goals, a choice he said is unfortunate.
“Are we educating lawyers who have the kind of skills to be able to compete in the marketplace, or are we educating lawyers to have the skills to pass a bar exam?” Ferruolo asks.
When the ABA council first proposed the bar-pass rule in 2016, minority lawyer associations, law-school deans and professors sent the agency letters in opposition.
Many said the rule would have a disproportionate impact on schools with large minority populations, which traditionally don’t do as well on the bar exam.
Some states, including Idaho, Nevada, Montana and Oregon, have sought to improve their bar-pass rates in recent years by lowering the score required to pass.
And the highest court in California, where it is notoriously difficult to pass the bar, has considered a similar move but in 2017 decided after months of debate not to make the test easier, this in lieu of California law school deans continual pressure on the bear state to lower the passing score.
To that end, the State Bar of California released a report that analyzes the falling passing rates.
It concluded that while weakening credentials of incoming students and performance in law school accounted for up to half of the decline, the rest stemmed from “unexplained factors.”
Really? Unexplained factors?
So why are these failures really happening?
According to Law.com, Law Dean Thomas Geu didn’t worry too much in 2014 when the percentage of J.D. graduates at his school who passed the July bar exam on the first try dropped by about 20 percent.
The pass rate at the University of South Dakota, which he’d led since 2011, fluctuated from time to time, so the decrease to 70 percent seemed like a temporary blip that would quickly correct itself.
But Geu realized he had a serious problem on his hands the following year, when that first-time South Dakota pass rate dropped another 20 percentage points, landing in the 50s.
Geu found himself among scores of law deans across the country suddenly grappling with significant drops in bar pass rates, even when he didn’t fully understand why they had fallen in the first place.
The rate at his school bottomed out on the July 2017 exam, when just 46 percent passed the exam on their first attempt—roughly half the rate from four years earlier.
“From a dean’s standpoint, there is no greater tragedy than someone coming to law school—wanting to practice law—and not passing the bar,” he said.
South Dakota is hardly the only law school struggling to bring up its bar pass rates.
Pass rates in many of the country’s largest jurisdictions have plummeted over the past five years, arguably replacing shrinking enrollment as legal education’s single biggest challenge.
The falloff has been national in scope. The average score on the Multistate Bar Exam—the multiple choice portion of the test—sank to a 34-year low on the July 2018 administration, according to the National Conference of Bar Examiners.
As mentioned, in California, the overall pass rate fell from 56 percent in July 2013 to 41 percent last July.
Texas took a hit when its pass rate declined from 81 percent to 65 percent over that time period.
And then New York’s passage rate fell from 69 percent to 63 percent, while Florida’s July 2018 pass rate was 67 percent—10 percentage points lower than five years earlier.
In the meantime, Pennsylvania’s July pass rate was 6 percentage points lower.
The Law.com article analyzed the bar pass rates reported by schools to the American Bar Association between 2013 and 2017—the 2018 weren’t yet available – and found that 42 out of 203 ABA-accredited law schools saw their pass rate fall anywhere from 10 to 20 percent. Thirty-five schools had pass-rate declines of more than 20 percent in those four years.
The law schools will invariably suffer.
While their circumstances vary somewhat, most of those schools with pass-rate declines larger than 20 percent have experienced significant drops in their enrollment and applicants, as well as difficulties in helping graduates find legal jobs—making for a toxic stew of challenges.
The cause of the decline is multifaceted, but it’s clear that waning demand for a law degree has played a key role.
From 2010 to 2016, the national applicant pool shrank 36 percent—in part due to a contraction in the entry-level legal job market and newfound attention on jobless law grads with staggering amounts of student debt. As a result, the falloff in applicants with high LSAT scores was particularly steep.
Because of legal education’s declining popularity, schools have needed to reach deeper into their applicant pools to fill out their classes, or they were forced to reduce the number of new students they enrolled, both options of which have led to no win situations across many of the nation’s law schools, this even as many campuses employed a combination of both strategies.
The upshot, questionable as it is of being an “upshot” is that incoming law students on the whole had lower LSAT scores and undergraduate grades than their predecessors—a trend that has only begun to reverse. (The number of law school applicants was up 7 percent last fall, marking the first significant increase in eight years.)
For example, the median LSAT score of South Dakota’s incoming students fell from 150 to 147 between 2011 and 2015, correlating to the period when bar exam pass rate began to slide.
A recent study commissioned by the State Bar of California concluded that the declining credentials of law students account for up to 50 percent of the state’s falling pass rates.
But Kellye Testy, president of the Law School Admission Council, said there’s much more at play.
She suspects the falling pass rates are the results of a combination of factors, the most obvious being the lower credentials of incoming students. The declining quality of public education—meaning an erosion of the reading and writing foundations children develop in elementary and high schools—may also be a contributor, Testy suggests.
Moreover, the evolving way that law is taught may explain why today’s law graduates are struggling more on the bar exam, states Testy, whose organization develops the LSAT.
Professors now put less emphasis on memorizing rules and have backed off on some of the high-pressure tactics—like the Socratic method—that historically dominated the legal classroom.
“The way we used to teach wasn’t as good for caring for the student, but it made sure you could take a closed-book exam,” Testy explains.
For those unfamiliar with the Socratic method of teaching law, according to Law School Tool Box.com, the Socratic method originated in ancient Greece. In its modern law school incarnation, it is a system of questioning designed to elicit answers that lead to insight or a conclusion. Through Socratic dialogue, the professor challenges a student's premises, assumptions, and understanding of the law.
“You knew the doctrine,” Testy states. “It was much more like a bar exam, in some ways. Today, when you go into a classroom, it’s all PowerPoint. The teachers give them an outline, the students are on computers. There’s a different student approach and a different faculty approach.”
The fact that so many law school graduates now take bar preparation courses online rather than in person is another avenue worth examining for a potential correlation to falling pass rates, explains Judith Gundersen, president of the National Conference of Bar Examiners.
“You used to have to go to a lecture and show up every day,” she says. “Now so much of it is online. People are wondering whether that’s changing how people prepare, because there just isn’t that communal aspect where, ‘I have to prepare in case I get called on.’”
The single-largest decline among all schools has been at Arizona Summit Law School, which closed its doors in August amid accreditation problems. It posted a 69 percent pass rate in 2013, which plunged to less than 27 percent in 2017.
Also, among the 20 steepest declines are the soon-to-close Whittier Law School and Valparaiso University School of Law. Thomas Jefferson School of Law, which is fighting for survival amid accreditation problems and shrinking enrollment, is also among the schools with the biggest decline in its bar pass rate.
The correlation between falling pass rates and school closures illustrate just how important bar passage—and graduate employment—are to a law school’s viability.
“That’s a death spiral for a school, if the students start to not be able to become credentialed in the field,” Testy explains.
Law.com’s analysis of bar-pass data also shows that roughly a quarter of schools have a higher first-time pass rate in 2017 than in 2013, so there are some bright spots.
Geu, at South Dakota, is optimistic that his school will be part of that modest upward trend.
He plans to leave his deanship at the end of the academic year amid promising signs on the bar exam front.
The school’s in-state first-time bar pass rate rose from 46 percent in 2017 to 82 percent last July—an improvement of 36 percentage points over the previous year.
“I am not going to cry victory in my last year of deanship because we happened to go up in our first-time South Dakota pass rate last year,” Geu says. “But I believe we’ve turned the corner.”
Let’s hope that the case for the 236 other ABA approved and non-approved law schools in the United States.
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