What Will The ABA Do To Restore Trust In Law Schools?

What are the 6 loopholes law schools use to get away with poor bar exam results?

On Friday, the Council for ABA Section of Legal Education and Admissions to the Bar meets in Atlanta. My organization will ask the Council to address trends in law school admissions and retention policies. We already asked the Council to instruct the Accreditation Committee to enforce the non-exploitation standard based on the plain text of Standard 501(b). Now we are asking that the Council reignite the Standard 316 revision process.

At the Standards Review Committee‘s last meeting, the committee indicated that it will wait on the Council for further instructions on the minimum bar passage standard, Standard 316. The Council should instruct the SRC to submit a revised Standard 316 after its February meeting. After the Council’s March meeting it should put the revised Standard out for notice and comment so that it may approve it during the June 2016 meeting. If the ABA starts the process now, we can easily have a real bar passage standard by August 2016.

But what’s wrong with Standard 316?

Standard 316 requires schools to pass one of two tests. A school passes the first test with an “ultimate bar passage rate” of 75% over the last five years. A school passes the second test with a “first-time bar passage rate” that is within 15% of the state average.

The tests sound simple, but are riddled with loopholes that allow very low performing law schools to remain in compliance. More than a handful of current and former ABA Section of Legal Education insiders have remarked privately that the Standard is unenforceable.

Loopholes
Loophole #1
The ultimate bar passage rate allows a graduate five years of failing the bar exam before the school is credited with the graduate’s failure. According to the LSAC National Longitudinal Bar Passage Study, 99.9% of people who pass the bar exam have done so by the fourth attempt. After three attempts, the figure is 99.3%. Allowing up to ten attempts is unreasonably generous.

Result: Due to a built-in two-year extension to come into compliance, a school that makes exploitative choices in 2015 will not be held accountable (in the best case scenario) until 2025 or later.

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Loophole #2
Schools can cherry pick the bar passage rate data reported for accreditation purposes. Under both tests, a school must report bar passage results from as many jurisdictions as necessary to account for at least 70% of its graduates, starting with the jurisdiction in which the highest number of graduates took the bar exam and proceeding in descending order of frequency. However, once 70% is achieved, a school may choose to report (or not report) any state-by-state outcomes it wants. That is not what the ABA instructs schools to do during its data policy trainings, but reasonable daylight exists for schools to manipulate.

Result: A school can report a higher first-time or cumulative bar passage rate than it knows its graduates achieved.

Loophole #3
Staying within 15% of the statewide average is not a meaningful signal of success when the state average drops due to lower admission standards across the board. Consider the example of Southern University Law Center. For 2013, the school’s first-time pass rate in Louisiana was 46.6%, 12.1% less than the state’s first-time pass rate of 58.7%. Under the ABA Standards, SULC exceeds the minimum standard even though less than half of its graduates passed the bar.

Result: A low-performing school remains in compliance because its peers also perform poorly.

Loophole #4
A low-performing school can skew the state-wide average such that the school ends up within 15% of the state average. For example, Florida Coastal‘s July 2014 bar passage rate was 58%, within 15% of the state average of 71.8%. The state average is 73.2% if we exclude Florida Coastal’s poor performance, which puts it 15.2% below the state average.

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Result: A low-performing school benefits from its own bar failures.

Loophole #5
There are 14 states that have only one ABA-approved law school. These schools will not fail the second test because there are no other schools to increase or decrease the state average. Imagine that a new law school opens in Alaska and has a first-time bar passage rate of 25%. Assuming the new school produces a sizable number of the test-takers in the state, the school remains in compliance with Standard 316.

Result: It’s nearly a mathematical certainty that 14 schools cannot fail the minimum bar passage standard.

Loophole #6
Law schools are permitted to exclude (PDF pg. 197) certain bar-takers when calculating the ultimate bar passage rate. If a graduate fails the bar exam in July 2013, but does not take the bar exam again by July 2014, that graduate’s failing performance will never count.

Result: Schools benefit from discouraged graduates or those that fail the bar exam and cannot afford to study full-time after the first failure.

A New Standard 316
LST’s suggestion is not novel. Indeed, we suggest that the SRC propose and Council adopt a version of Standard 316 discussed by the SRC as recently as 2014. Under the revision, accredited schools must, within two years of graduation, achieve an 85% bar passage rate among graduates who take the bar exam. Enhancing the standard in this way allows a graduate to take the bar four times—ample time to obtain near statistical certainty that the graduate will never pass the bar and assess if the school adequately educates its students. The new Standard would eliminate the first-time bar passage rate test, although a strong argument can be made in favor of setting a minimum first-time rate too.

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Currently, the ABA does not consider a school that is compliant with Standard 316 to be out of compliance with Standard 501(b). Again, that reading of Standard 501(b) is not supported by the text. But even if it were, the impossible-to-fail Standard 316 dooms any attempt by the ABA to stop some law schools from engaging in exploitative admission and retention practices.

The Council can address these issues swiftly on Friday. Doing so would prove to many skeptics that the ABA is serious about holding law schools accountable. The ABA needs to in order to regain the public’s trust and to meet its accreditation obligations.


Kyle McEntee is the executive director of Law School Transparency, a 501(c)(3) nonprofit with a mission to make entry to the legal profession more transparent, affordable, and fair. LST publishes the LST Reports and produces I Am The Law, a podcast about law jobs. You can follow him on Twitter @kpmcentee and@LSTupdates.