Law Schools

The California Bar Exam Pass Score Should Remain The Second Highest In The Land

Lowering California’s pass score will not solve the fundamental problem of unemployment and underemployment for law school grads.

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Last week, I was invited to be a guest on KPCC’s Airtalk radio show along with Jennifer Mnookin, Dean of UCLA School of Law, to debate whether the California bar exam’s pass score should be changed. Dean Mnookin, along with the two other law school deans recently wrote an op-ed for the Los Angeles Times arguing that the pass score should be lowered. I was going to argue that it should stay the same.

Unfortunately, our chat was cut short due to the station’s coverage of President Trump’s press conference that came shortly after we began our segment. But at least we were able to give our opening statements. Dean Mnookin said that California’s pass score should be lowered because there is zero evidence that California’s high bar exam score produces better lawyers. I argued that the deans’ motivation for lowering the pass score was mainly financial.

Is California’s pass score unjustifiably high? California’s 144 pass score is the second highest in the country, next to Delaware. While most states have lower pass scores, some limit the number of times you can take the bar exam before being banned permanently or requiring special permission to take the exam again.

The deans point to New York, where they claim the legal work is comparably sophisticated, yet the state has a lower pass score of 133. What makes California so much better to justify a higher pass score? It’s not the weather. But this difference may ultimately be irrelevant.

First of all, New York and California take different bar exams which means it could be possible that a New York’s 133 passing score could be equivalent to or very close to California’s 144 passing score. The California State Bar prepares its own exams while New York uses the Uniform Bar Examination. While both exams require the MBE multiple-choice section, the essay questions are different. Comparing the difficulty of essay questions is challenging because it will depend on a lot of factors such as the number of issues to be spotted, whether the facts were articulated clearly, the grader’s preferences and expertise (or lack of it), what the call of the question is, etc. It’s like trying to compare whether the Lakers or the Knicks have the better defense. Reasonable people will have differing opinions.

But let’s assume both exams are equally difficult and it’s simply easier to pass the exam in New York. Lowering the pass score will almost guarantee that more people will be admitted as lawyers. But will that improve post-graduation employment? The deans’ op-ed article states that for the still unemployed, finding work becomes far harder if they don’t pass the bar exam. That wording suggests that finding work is hard as it is.

Oh, and of course there is the magic solution: starting your own practice. As the cheerleaders and marketers will say, if you network, say your prayers, eat your vitamins, and pay for our boot-camp seminar, one day you will have a successful seven-figure practice while working two hours per week or something like that.

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The problem is until you reach the mountaintop, you need clients, preferably those who can pay. And in the beginning, you are going to accept any case you can get. And that’s when all of those subjects you studied for the bar exam might somehow come in handy. Sure, some of the rules you learned are not the law in your state. But at least you will have a foundational understanding that can help you when you do your legal research.

The deans also argue that the bar exam is a test designed for the paper-and-pencil generation inflicted on the smartphone generation. I find this argument odd because I don’t know any lawyers who use their iPhones to draft and e-file a motion containing 280 characters or less to their local courthouse’s Facebook page. Maybe if the lawyers threatened to give the courthouse a bad Yelp review, they will look into it.

Finally, Dean Mnookin got the last word and pointed to a study by Dr. Roger Bolus which indicated that 20-50 percent of the decline in bar passage rates were due to applicants’ lower undergraduate GPA/LSAT scores. However, the study also stated that the lack of individual student performance data limited the ability of the study to identify a causal connection between changes in applicant abilities and bar exam passage rates. In-depth analysis of possible causal linkages will depend on the collection of detailed student performance data from law schools.

Will law schools provide this more detailed data? I wouldn’t count on it. Only 11 California law schools participated in this study, excluding the usual suspects. Also, law schools are notorious for not disclosing information that is not in their best interest. Some of us may remember when a startup non-profit called Law School Transparency asked every ABA accredited law school to provide detailed post-graduate employment information. The law schools ignored their request, in the hopes that they would go away.

A more recent study from the California State Bar stated that unexamined factors could have caused the decrease in the bar exam passage rates.

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So the TL;DR answer to a one-year, multi-report study on this issue is somewhere between “It Depends” and “We Don’t Know.”

Wonderful.

However, there is some good news. Professor Jerry Organ recently analyzed the Fall 2018 law school entering class profiles. He found that while law school enrollment has been increasing, the vast majority of law schools, with a focus on improving entering class profile, chose to take fewer students than they might have. Professor Organ concludes that by looking at the overall “strength” of the class based on median LSAT, this would appear to be the strongest entering class since 2012. This indicates that bar exam passage rates will improve in three years.

So I think the California Supreme Court did the right thing by not lowering the bar exam pass score and they do not need to. When the Court asked for public comment on the issue, I sent a letter arguing why lowering the pass score would do more harm than good. While multiple studies show that only 20-50 percent of the lower bar passage rates is due to lower GPA and LSAT scores, the study is based on incomplete information. But there is no denying that three years after law schools started admitting students with lower credentials, bar passage rates began to decline nationwide, even in states with lower pass scores than California’s.

Lowering California’s pass score to the national average will not solve the fundamental problem of unemployment and underemployment facing some law school graduates, even in a good economy. With entering credentials improving last fall, changing the pass score or conducting another study on this issue may not be necessary after all. Perhaps it is better to just wait and see what happens.

Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at sachimalbe@excite.com. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.

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