ABA Mandates Bar Passage Rates

The American Bar Association has imposed a new standard for accreditation.

Under the new rule, over a five-year period (1) 75% of a school's graduates must have passed the bar, or (2) the school's annual first-time bar passage rate in state(s) in which at least 70% of its graduates take the bar must not be more than 15 percentage points below the average first-time bar passage rate in that state(s) for at least three of the years.

Fewer than ten accredited law school in the nation fail to meet that standard (the second part is the only part that matters, no state in the country has a 90% or higher first time bar passage rate).

Some numbers (which its authors admit are imperfect and don't track the ABA standard) can be found here.

According to the ABA itself there are 195 ABA accredited law schools offering a first professional degree, including one, Widener, with two campuses.

Eight of those have only provisional approval:

Charleston School of Law
Faulkner University Thomas Goode Jones School of Law
Florida A&M University College of Law
University of LaVerne College of Law
Liberty University School of Law
John Marshall Law School (Atlanta)
Phoenix School of Law
Western State University College of Law

One of those, Whittier Law School in Costa Mesa, California is currently on probation.

Whitter is also one of the worst in the nation when it comes to bar passage rates. On the July 2005 and February 2006 bar exams, Whittier had a 39.3% bar passage rate, compared to 62% for California as a whole. On top of that, one commentator has claimed that it has 50% attribution in the first year of law school, and experiences roughly two-thirds attribution by the time that students reached the bar exam. Thus, apparently only about 13% of entering Whitter Law School students pass the bar exam in California (the exam most of its students take) the first time around.

Other schools below the threshold in July 2005-February 2006 were Southern University Law Center, in Louisiana; the University of D.C.; Thomas Jefferson in California; Golden Gate in California; St. Thomas in Florida; and Texas Southern. Another seven met the standard in that year but were within five percentage points of the cutoff. Three of those schools (Southern University Law Center, St. Thomas and Texas Southern) are majority minority. Several more have very large minority student bodies compared to other law schools.

The impact of the closure of a school like Southern University Law Center, which seems most imperilled by the plan has the potential to be great as indicated by this blurb from its website:

The Law Center has contributed to the education of more than 90 percent of the African-American attorneys in the state of Louisiana. Graduates make up approximately seven percent of the Louisiana Legislature and more than 40 hold judicial offices at the local, state, and national level.

Looking at an average over the past five years from this source (which is different from, but a reasonable approximation of, the impact of the ABA standard) the schools that don't meet it (or come close) are as follows, keeping in mind that better than -15% for three of five years is the applicable standard:

1 Southern University -32.6%
2 U. of the District of Columbia -29.8%
3 Texas Southern University -24.17%
4 Whittier Law School -21.6%
5 Golden Gate University -19.86%
6 Regent University -18.54%
7 Thomas Jefferson -17.68%
8 St. Thomas University -15.72%
9 Thomas M. Cooley -15.28%
10 Western New England -14.08%

Details review of data suggest that the three out of five rule might spare a couple of schools near the margins.

Often the affirmative action debate involves schools at the elite level, where the question is how prestigious an institution as student will be able to attend when there is little doubt that a sufficiently persistent student will get into law school somewhere. This accreditation standard, in contrast, is likely to have a great impact on students, a large share of whom are minorities, who are unlikely to be admitted to law school at all, if not admitted to these schools.

This doesn't mean that the standard is a bad one. Virtually none of the students who ultimately flunk the bar exam are receiving merit scholarships, and those students are the ones most hurt by poor instruction in a school with a low bar passage rate.

More often, low bar passage rates are a product of generous admissions standards rather than poor instruction. But, this is unfair also. With or without a need based scholarship, it is grossly unfair to take a student's money and time on a pursuit that is extremely likely to ultimately be a waste of time because the state bar examiners won't admit that person to the practice of law. A law degree is a quintessentially pre-professional degree and there are better ways to learn about the law if you aren't going to be a practicing lawyer.

Schools with low bar passage rates will respond in one of several ways: (1) they will tighten admissions standards, (2) they will develop bar exam prepatory instruction and counseling, or (3) they will lose their accreditation (which denies their graduates a chance to even take the bar exam in all but a few states -- California being the most notable one to allow one to sit without an accredited law degree). In many cases, tightening admissions standards will so reduce enrollment that the school will go out of business anyway.

Of course, no admissions criteria can perfectly predict bar exam passage or failure. But, while standardized test scores and undergraduate grades aren't perfect predictors of law school completion or bar exam passage, these measures are much better at predicting these narrow performances than they are at predicting things like economic success in the practice of law, or propensity to engage in malpractice once admitted to the practice of law.

A detailed eye ball examination of the admissions numbers suggests that the admissions cut off for a school that will meet the ABA standard needs to be in the vicinity of a 2.8 undergraduate GPA and 149 LSAT score (a score which is at roughly the 40th percentile for LSAT test takers) for something in the vicinity of 75% of it students.

Increases of 0.2 GPA points (from 2.73 to 2.94) and 5 LSAT points (from 145 to 150) for students in the 25th percentile at Regent University in recent years have translated into dramatic increases in bar passage rates from routinely below the proposed ABA standard to safely above it in the two years that have passed since tougher standards in admission have filtered through to students taking the bar exam.

At a school like Southern University, meeting that standard would probably mean reducing admissions by something on the order of 60-65% of the current student body, a dramatic step for a school that has 394 students. It already rejects 66%-78% of applicants each year, and there is no indication that large numbers of students with a better than 2.8 GPA and 149 LSAT (which would be in the top third of the entering class) are rejected.

The ABA standards, nationally, won't have a huge impact. Closing or significantly reducing enrollment at eight law schools, some on the small side already, out of 195 law schools nationally, won't change the world for most people. But, it will have a profound effect on law schools at three of the five historically black colleges currently accredited by the ABA, namely Southern University, University of District of Columbia, Texas Southern, requiring most to forfeit their accreditation, dramatically shrink their enrollments, or close their operations. Howard University's law school in the District of Columbia (arguably the Harvard of historically black colleges and universities), and North Carolina Central (which like the University of District of Columbia is now majority non-black), would likely not be directly impacted, but would need to pay much greater attention to bar passage rates and would likely receive considerable spill over enrollment from historically black college law schools that have closed.

UPDATE: Someone writing with regard to Texas Southern states that the 75% test applies to those who ultimately pass the bar exam, not to those who pass it the first time, meaning that it provides considerable leniency to schools where many make it into the bar on repeat test taking efforts (and this person further claims that Texas Southern meets the 75% tests, as I'm sure some of the other schools on the list do). I have no hard data on the ultimate passage rate from the schools listed above which failed to meet the 15% test in a recent five year sample, and thus, can't provide a clear answer as to how many of those schools are saved from loss of accreditation as a result.

Some of the ABA materials have comments on the ultimate passage rate and how the 75% figure was chosen:

In settling on an ultimate bar examination pass rate, the original proposal from the Standards Review Committee was 85% and the Council reduced it first to 80% and then to the current 75%. The 75% was ultimately decided upon after reviewing first-time pass rates for states; after reviewing the Law School Admissions Council national bar examination pass study (which involved 163 law schools with results from 50 jurisdictions); after reviewing the recently conducted New York bar examination study; and after consultation with law school deans, current and former members of the Accreditation Committee, Section staff, and many, many others interested in this matter.

In terms of first-time rates for states, a recent review of combined July 2006 and February 2007 results (the most recent data we have available), showed that 42 states had a FIRST TIME rate at or above 75%, so an ultimate pass rate of 75% would appear to be quite modest, certainly so in the case of 42 states. However, the assessment was far more detailed than a one-time review of state-wide rates. For example, in the LSAC study, the ultimate pass rate for all participants was 94.8%, for persons of color it was 84.7% and for Black/African American participants specifically, the eventual pass rate was 77.6%. The study showed that of the persons of color who ultimately passed, between 94 and 97 percent passed after one or two attempts, and 99 percent passed by the third attempt. In contrast, the proposed Interpretation provides for as many as nine attempts over a five-year period.

The recent New York study revealed similar results to those of the earlier LSAC study. It showed that in July 2005, first-time takers from ABA-approved law schools (excluding foreign educated LL.M. students), passed at a rate of 83%. After three takings the cumulative pass rate was 91.1%. When this review focused on race/ethnicity, the ultimate pass rate ranged from 93.4% for Caucasians to 75.1% for Black/African Americans. Further, if non-persisters are removed when considering ultimate bar examination pass rates over the three tests (July 2005, February 2006 and July 2006), the overall pass rate increases to 94.7% and the Black/African American group increases to 82.6%. So, the proposed ultimate bar examination pass rate of 75% over five years is nearly eight points below the Black/African American ultimate pass rate for three tests when non-persisters are excluded and nearly 20 points below the overall rate.