For the first time in 30 years, the California Supreme Court is considering changing the passing score for its infamously difficult bar examination. California has the nation’s second highest bar exam pass score (1440) and one of the lowest pass rates (43% in July 2016).
The pass rate for the July 2016 Bar Examination was the lowest in 32 years. In response, the deans of California’s law schools have demanded that the pass score be lowered, claiming that there are no good reasons to keep it so high. They proposed lowering the pass score to match the national average and claim that lowering the pass score will improve access to justice in underserved areas and improve diversity in the profession.
However, the California State Bar’s Committee of Bar Examiners voted 13-1 to keep the current pass score claiming that more data is needed including some that are currently underway. The California State Bar’s Board of Trustees voted 6-5 to propose three pass scores to the Court. One is to maintain the current score of 1440. Another option would be to lower the test score to 1414. The final option would be to lower it further to 1390. The national average pass score is between 1330 and 1360.
How Is the “Right” Pass Score Determined?
The basic purpose of the bar examination is to test knowledge of the law, the ability to spot issues and apply the law to facts. The proper pass score is determined by a number of factors, such as consulting with psychometricians, reviewing national trends, and comparing the current exam’s difficulty with previous examinations.
However, licensing pass scores have been artificially lowered in response to a strong social need. For example, New York has recently lowered its pass score for teacher certification in response to a predicted teacher shortage. The rationale for this is that they will be easily hired and will learn on the job as employers have a strong incentive to train and retain them.
But there are many things that the bar examination cannot test. It cannot predict whether someone will be successful in the profession, or be subject to discipline. It cannot predict whether a lawyer will act responsibly or use the law to his advantage at the expense of his clients and the public. The exam cannot test a lawyer’s temperament or integrity.
The Exam Pass Score Should Stay the Same for Now
The timing and motivation for the proposed reduction are suspect, as law schools are the primary advocates. In recent years, fewer people applied to law school due to many having poor post-graduate employment outcomes. As a result, many law schools have admitted students with lower GPAs and LSAT scores to maintain their tuition revenue.
Lowering the pass scores will not solve the employment problem for new graduates. Just last year, the bar examination has changed from a three-day format to two, a move many believe makes the exam easier. In response, there has been an increase in applications to take the examination from repeat takers and lawyers from other states. The lower pass score and resulting higher pass rate will only make it harder for new law school graduates to find jobs because of the increased competition.
This could result in many unemployed law school graduates accepting jobs with disreputable firms that generally pay very low, do not provide adequate training, overload them with cases, and, in some cases, subject them to disciplinary action. Some will take these jobs because they do not know better. Others will do it because they have no other choice.
Furthermore, because of the lack of available quality jobs for recent graduates, they will be forced to set up their own practices. This causes a problem, as these well-meaning but inexperienced attorneys will have limited resources to serve their clients. Mentors can only do so much, as they have their own practices to run. New graduates may also be searching for jobs, and once they are hired by someone else, they may have to terminate contracts with their clients, forcing them to look for new attorneys.
Rural Attorneys are Needed, but This Won’t Fix That
In many parts of California, there is no shortage of attorneys in the private sector, the government, and public service. While there is a need for attorneys in rural areas, this is a problem that plagues the entire nation, even in states with lower pass scores than California’s.
If law schools truly are committed to serving underserved rural communities, there are a number of things they can do instead of lobbying for lower pass scores. They can offer scholarships, interest-free loans, or loan repayment assistance to those who pledge to serve rural communities for a number of years.
Or existing ABA-approved law schools can set up satellite campuses in these rural areas, and law students can take classes taught by local judges or practicing attorneys or take internships with them. As the cost of living is cheaper in these areas, the savings can be passed on to students who opt to study at these satellite campuses and plan to practice in the area after being admitted to the bar. Or they can share resources with non-ABA accredited schools to accomplish the same goals.
They can petition governments, bar associations, and private donors to provide seed money to fund these types of initiatives. They can also petition the federal government to expand the Public Service Loan Forgiveness program to include solo or small firm attorneys who choose to practice in rural or underserved areas.
Lowering the Pass Score Won’t Fix Access to Justice Either
Finally, while lowering the pass score would increase the number of people admitted to practice, including people of color, there is no proof that those with lower scores will assist the underserved, another argument raised in favor of cutting the pass score. Attorneys of color, for example, are more likely to serve their ethnic communities and become leaders and role models to future generations.
The better option would be to encourage people to achieve their maximum career potential. Those who achieve financial success can be encouraged to donate to legal aid programs that serve low-income and minority communities. And others who want to make a career change can lateral to small firm practice or public interest that can benefit from their experience and connections.
The California Supreme Court’s decision to lower the bar examination pass score is likely to be followed by other states. As many of the claims for and against lowering the exam pass score are speculative, further studies are needed. But in the meantime, the bar exam pass score should not be changed, as there are more effective ways to improve diversity and help underserved communities.
This article has been submitted to the California Supreme Court. The Court is currently seeking public comments on whether the bar exam pass score should be lowered.