A number of law deans have recently weighed in on proposed changes to the ABA’s standards for bar passage outcomes that law schools would (if the proposals are enacted) need to satisfy to remain accredited. The proposal requires at least 75% of the students from each law school’s graduating class who take a bar exam to pass within two years of the date of graduation. (Graduates who don’t take a bar within two years because, for example, they pursue graduate study, are not counted in the denominator.)
Some deans, like Dan Rodriguez of Northwestern Pritzker and Craig Boise of Syracuse, have argued in favor of the proposal – which is simpler and more rigorous than the current requirements — asserting that “when academic support cannot raise a substantial percentage of the students admitted to a law school to a level of preparation sufficient to permit them to pass the bar, that school should be held accountable.” Other deans disagree; some law deans at historically black colleges and universities (HCBUs) have opposed the measure, expressing worry about the effect the new rules would have on schools that graduate a high percentage of students of color, who historically have had lower bar pass rates. And Austen Parrish of Indiana recently published a long essay in which he explained his hope the ABA House of Delegates will reject what he calls an “elitist and patronizing view of tomorrow’s lawyers.”
Dean Parrish’s essay helpfully frames the debate. His biggest objection appears to be that the proposed standard is paternalistic. As he observes: “no one is forcing students to enroll. . . . [Advocates of the proposal assume] that those who believe enrolling in [schools with low pass rates] will improve their lot in life are naïve, that neither they nor their families can be trusted to make sound decisions. . . . [R]arely have we been so openly paternalistic as to suggest the ABA should make this decision for them. . . . [This is particularly unjustifiable given that] there’s never been greater transparency and more data to help would-be students make informed choices.”
Stand With Survivors: Legal Tools To Make A Real Difference This DVAM
Enhance your legal skills to advocate for survivors of intimate partner violence.
While I find Dean Parrish’s discussion on this key issue to be thoughtful, I think it does not fully take account of the forces that have brought us to where we are, with extremely low pass rates at many schools, and angst about the financial and other implications of a large number of unlicensed graduates. In circumstances where major financial investments (and surely a legal education is one) are at stake, some modest level of paternalism ought not to be rejected out of hand. For example, under Securities and Exchange Commission rules, certain high-stakes investments are not available to an investor unless she or he demonstrates a certain level of financial experience and sophistication; we don’t simply allow any “willing” investor to spend a large amount of money on complicated offerings as long as the offerors are providing some information.
Moreover, and more fundamentally, given the extent to which law school debt is underwritten by the federal and state governments – i.e., the public – we should not view the decision to attend law school as one affecting solely the student and the law school. Indeed, we should remember that the ABA accreditation authority exists largely by virtue of federal Department of Education’s delegation; the federal government and the states have both regulatory and financial interests in the health of legal education.
Finally, although the bar-pass issue might conceivably be addressed more through required disclosures and less through outcome mandates, we should acknowledge that the bar-passage disclosures that are required today are in some respects pretty minimal. Law schools don’t have to disclose their pass rates in all states. And the data they do have to disclose isn’t required to be posted on their websites until about 18 months after the summer bar exams themselves — the data from the July 2016 test isn’t required to be posted until December 2017 — such that would-be students may often have access only to data that is not current. On top of that, some state bars, like California, appear to be cutting back on the school-by-school data they themselves post. (Here is more discussion on that issue.) And we should also remember that the data that must be disclosed is not particularly finely grained; law schools need post only aggregate bar pass data, not data broken down by entering LSAT score, college GPA, graduating law school rank, race, etc. And if this specific kind of data were in fact required to be disclosed, then law school diversity might be adversely affected, which is one of the things that Parrish and other critics of the ABA proposal reasonably and legitimately worry about. So disclosure might not be a panacea in this realm.
There remain some forceful concerns about the ABA’s proposal. As the deans of the HBCUs point out, we should at least have a clear sense (perhaps through additional empirical work) of the size of the likely impact this change would have on the racial makeup of law school classes. Moreover, as Dean Parrish observes, we must deal with the fact that the new rule will have much harsher effects in a few states – like California – that have low bar pass rates, not because exam takers in those states are less prepared, but because those states have (for protectionist or other questionable reasons) a much higher threshold required for passing. (I think that over time widespread adoption of the Uniform Bar Exam should cause pass rates throughout the country to move closer together – more on that in a later column – but this year illustrates the wide range among states. Even among two “difficult-bar-exam” jurisdictions, California and New York, the first-time pass rate among ABA-in-state-school graduates was very different – 62% and 83%.)
3 Ways Lawyers Are Finding New Efficiencies With AI
Those who’ve adopted legal-specific systems are seeing big benefits.
Finally, as Dean Parrish rightly suggests, we should pay attention to the reality that the bar exam itself is not a particularly good measure of legal aptitude or promise. Dean Parrish apparently thinks that when ABA accreditation standards take bar passage seriously, this affirms and dignifies an exam not worthy of much respect. My own take is: (1) that the bar exam in many states is actually moving, albeit perhaps too slowly, in the right direction (with inclusion of a performance-exam component); (2), that, as long as the bar exam exists as a barrier to entry into the profession, law schools need to make sure the vast majority of their graduates can pass (and schools should be addressing this matter whether or not they are worried about accreditation); and (3) that perhaps if the new accreditation standard is adopted and threatens the accreditation of a large number of well-established law schools, the resulting consequences and political pressure will lead states to improve the exam itself and the way it is graded. So the ABA taking the bar exam seriously may be a step towards states looking more carefully at it as well.
Vikram Amar is the Dean of the University of Illinois College of Law, where he also serves the Iwan Foundation Professor of Law. His primary fields of teaching and study are constitutional law, federal courts, and civil and criminal procedure. A fuller bio and CV can be found at https://www.law.illinois.edu/faculty/profile/VikramAmar, and he can be reached at [email protected].