SAN FRANCISCO (CN) – The California State Bar’s committee of bar examiners voted Thursday to recommend that the state Supreme Court keep the bar exam minimum passing score at 144.
The committee voted 13-1, with one abstention, to maintain the status quo at least until more studies on the exam are finished.
What the minimum passing score should be has been hotly debated over the past year, as passage rates fell to an historic low of 43 percent in July 2016.
In the past month, the state bar has been flooded with public comments on both sides of the issue. More than 34,000 attorneys responded to the agency’s survey. A staff report on the results noted that 80 percent of attorneys are opposed to lowering the score, while more than 90 percent of bar exam takers favor lowering it.
Some attorneys focused on the mental fortitude of todays’ exam takers.
“To me, the declining pass rate seems to be more of a millennial problem (I say this as a millennial),” one commenter said. “Students don't want to work hard for anything, they expect it to be given to them. If they're not willing to put in the work, they should not be admitted as lawyers.”
Another commenter said the state’s high cut score should be a point of pride.
“That California's cut score is the second highest in the nation is something to be proud of, not something to be concerned about,” the person wrote. “I have interacted with attorneys from many other states using lower cut scores. I may be biased, but I believe that in general, California attorneys are better educated and more competent than attorneys elsewhere.”
One attorney said they didn’t see how a lower passing score would improve the quality of attorneys in California.
“In my 15 years of practicing law, I have observed too many attorneys who lack minimal competence. It is unclear to me how lowering the cut score to allow people to practice law, who otherwise have not been able to pass, will HELP society,” the attorney said.
And still another said the exam is a poor predictor of minimum competence to practice law.
“The bar exam does a poor job determining who is actually fit to practice law,” the commenter said. “If the exam were more relevant and better tailored to determine minimal competence, then the set cut score would be much more important and should not be lowered below what California thinks is a competent threshold. However, the bar exam as it is now does not test true competence to practice law.”
In February, California Supreme Court Chief Justice Tani Cantil-Sakauye directed the bar to study all issues affecting passage rates and determine whether Californians are actually better served by maintaining the 144 cut score. The bar hired educational-assessment expert Chad Buckendahl to run the study, which took place over two days in May. The study’s panel, comprising 20 practicing attorneys, recommended either no change to the current cut score or to adopt an interim passing score of 141.
Law school deans have argued the score should be even lower, recommending at a Law School Council meeting Wednesday that it be dropped to as low as the nationwide median of 135.
For the bar examiners committee, it didn’t make sense to forge ahead with a lower score without the benefit of the results of other studies – one on the content of the exam and whether it’s testing the right things, and another law school performance, both of which are still in the works. The content validity study won’t be complete until October, and the law school test doesn’t have an official completion date.
“I don’t have any understanding of an ETA on that,” said committee chair Karen Goodman. “My understanding is we only have four schools in the entire state that agreed to participate. That’s a huge issue that feels like an elephant in the room.”
Committee member Sandhya Ramadas added, “My thought is that we don’t have enough data yet,” referring to the two studies. “I think we really need those before we can make a decision.”
Committee member Lee Wallach urged the committee not to rush into anything.
“I have yet to hear any data that suggests that we should change this cut score not only permanently but definitely not interim,” he said. “Once you go there, you’re not going to go back. So let’s get it right the first time. There really seems to be no rush.”
The bar’s board of trustees will vote on its own proposal to the Supreme Court at its annual meeting on Sept. 6, after considering both the committee of bar examiners’ vote and the Law School Council’s recommendation.
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