SACRAMENTO, Calif. (CN) – California lawmakers sent a letter to the chief justice of the California Supreme Court asking her to consider reducing the score required to pass the state bar exam.
Members of the Assembly Judiciary Committee urged Chief Justice Tani Cantil-Sakauye to address the “crisis” by temporarily lowering the minimum score required to pass the bar, called the cut score, while further exploring the relationship between the score and its impact on the quality of jurisprudence in the state.
“The cut score lacks a policy basis and its continued effect is causing actual harm to Californians across the state,” wrote the eight California legislators, including committee chair Mark Stone.
The legislators, who heard testimony from various luminaries in California’s legal community, said the problems caused by the arbitrarily high cut score include acting as a deterrent to prospective legal professionals, increased anxiety for law school graduates, a shift in law school curriculum with more professors teaching toward the test and an overall effect of fewer lawyers able to meet demand for the state’s legal services.
“Legal aid must turn away indigent clients because there aren’t enough attorneys, exacerbating the problem of underrepresented litigants in the legal system,” the committee wrote in the letter.
California holds the second highest cut score in the nation – second only to Delaware – at 1,440 points, which was implemented in 1986 and has since remained unchanged.
Much of the recent clamor surrounding the cut score came after the California State Bar announced that 62 percent of first-time takers from American Bar Association-accredited law schools passed the July 2016 bar exam.
“It is simply unacceptable and unconscionable that 38 percent of graduates from law schools that meet the accreditation standards of the ABA are now deemed not to have the minimum competence to practice law in California,” San Diego School of Law Dean Stephen Ferruolo wrote in a letter that appeared in the San Francisco Daily Journal.
Between 2007 and 2014, the national pass rate for first-time takers was 85 percent. California’s was significantly lower at 77 percent, according to the National Conference of Bar Examiners.
Cantil-Sakauye sent a letter to California State Bar president James Fox and its executive director Elizabeth Parker on Tuesday in which she agreed to take a look at the problem. But she noted fluctuations in the passage rate over the 30-year period in which the cut score has remained the same may mean other factors account for the recent dip in passage rates.
“It is unclear whether the July 2016 pass rate, a 30-year low, constitutes evidence that the cut score needs to be lowered,” she wrote.
Critics of the request to lower the passing threshold say a high score is necessary to ensure that those who practice law have a fundamental competency necessary to function in the highly complex and societally critical arena of the law.
But law schools have a vested interest in lowering the cut score to assure prospective students who fork over enormous sums to attend their schools will meet their long-term professional and financial goals.
Indeed, in its letter to Cantil-Sakauye, the legislators say that a low passage rate damages “the reputation of California’s law schools … making it difficult to attract the most qualified prospective applicants.”
And in a paper published for the committee hearing into the cut score matter, the authors argue the purpose of a bar exam is to determine that someone has the minimum competency necessary to practice law.
California’s system instead acts as an unnecessarily high barrier for those seeking to enter the legal profession – with potential ramifications for people of color, the authors argue.
Additionally, they say the economic cost to those forced to retake the exam can be “financially devastating.”
“In 2016, around 1,461 applicants were unsuccessful on the bar exam on their first attempt,” the paper states. “If these applicants sat for the exam again, they would have to spend at least $1.16 million just for the fee to retake the exam.”
This also results in about $43 million in lost earnings according to the paper, which impacts the California economy and tax revenue, the authors say.
Cantil-Sakauye urged the state bar to launch an investigation exploring the many factors responsible for the recent low pass rate and to submit a report no later than December.
While the legislators were heartened by this step, they want the chief justice to temporarily lower the score until the investigation and report are complete.
A spokesman for the California Supreme Court declined to comment.
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