ABA Finally Adopts Tougher Bar Passage Standards For Accreditation -- Well, Almost

Finally! The ABA tries to do something about the continued abysmal bar passage rates around the country.

Sad GradWe’ve documented in these pages the continued abysmal bar passage rates around the country. And, after being threatened with having its accreditation powers stripped by the Department of Education, the American Bar Association has taken action, by tightening up the bar passage requirements for accredited schools.

On Friday, the ABA’s Council of the Section of Legal Education and Admissions to the Bar passed the tightened standard, but the change hasn’t officially happened yet. The ABA’s House of Delegates must approve the measure, and the earliest time they can do that is in February at the midyear meeting. The earliest the rule change can go into effect is for the 2017 grads who sit for the July bar exam.

The new standard, if adopted, is designed to close loopholes and mandates a 75 percent bar passage rate two years after graduation, whereas the current rule mandates that passage rate over five years. As Law.com reports:

The new rule isn’t a dramatic change, but supporters say it closes several loopholes in the existing standard and makes it more straightforward. It mandates that at least 75 percent of a law school’s alumni pass the bar within two years of graduation—rather than the current five-year period. It also eliminates a provision allowing schools to meet the standard if its first-time bar pass rate is within 15 percent of the statewide average, and a provision enabling law schools to meet the standard based on data from only 70 percent of graduates.

That first-time provision makes little sense for states with just one or two law schools, and allows low-performing schools to meet the standard by dragging down the statewide average with high failure rates, critics said.

But despite the rhetoric about new standard, there may be a loophole to even this tighter rule that law schools are teeing up. As Rick Bales, former Dean of Ohio Northern Law School, notes:

Arizona Summit (formerly Phoenix Law School), the same school that paid its low-GPA graduates not to take the bar exam yet still had an overall July 2016 pass rate of 19.7%, has created a new requirement that each student with a GPA below 3.33 must pass the school’s mock bar exam as a prerequisite to graduating. Theoretically, Arizona Summit could set the mock-bar pass rate at 10%, meaning that only the top-10% would qualify to sit for a bar exam. That would virtually guarantee technical compliance with the ABA’s 75% rule. Meanwhile, 90% of the school’s students would have paid $136,062 in tuition (plus expenses, lost opportunity costs, etc.) for a degree that does not qualify them to sit for any bar.

So, unless a school is completely sure you’re going to pass the exam, they are able to stop students from taking the bar exam (by preventing them from graduating), thereby circumventing the actual point of the rule.

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But despite the obvious benefit of requiring a higher bar passage rate, the rule change has been met with criticism. Some feel the increased standard will unfairly impact minority students — in fact, a coalition of deans from law schools at historically black colleges and universities have expressed their opposition to the rule change. Though questions about bar passage rates have been linked to questions of diversity before, council members that voted for the rule change do not see the negative impact:

Council member Maureen O’Rourke, dean of Boston University School of Law, said the council would not take steps that hurt diversity, but the body has a responsibility to hold law schools accountable for the outcomes of their students. “Where can we be objective and have a way to get at schools that are a part of the problem, not part of the solution?”

This issue is one that needs to be foregrounded in discussions about the future of the profession. Because it certainly isn’t a benefit to students who take out $150,000+ in loans only to find themselves unprepared to to pass the bar exam. And that isn’t a plan to increase the diversity of the legal profession either.

Tighter Bar-Pass Rule Adopted by ABA Accrediting Body [Law.com]
The ABA 75% Bar Passage Rule: Dead On Arrival? [Law Deans on Legal Education Blog via Tax Prof Blog]


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Kathryn Rubino is an editor at Above the Law. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).