California Committee Backs Retroactivity for Lowered Cut Score on Bar Exam

The California Supreme Court building in San Francisco. (Courthouse News photo / Maria Dinzeo)

SACRAMENTO, Calif. (CN) — California Democrats lined up Wednesday behind a resolution that seeks a retroactively lowered passing score on the state bar exam going back as far as July 2015.

“As a branch of government, this is the best statement we can make saying, ‘Please look at this because we have a pool of highly qualified individuals who could be attorneys,’” said Assemblyman Mark Stone, a Democrat representing Monterey who chairs the body’s Judiciary Committee.

Stone, who is himself a lawyer, called the exam a “stress test” that doesn’t really measure someone’s competence to practice law. 

Legislators and law school deans have been pushing for years for California to lower its bar exam cut score, calling it a barrier for people of color looking to enter the legal profession. The ongoing debate has been exacerbated by the Covid-19 pandemic, spurring calls for the state Supreme Court, which oversees the state bar, to enact diploma privilege that would let graduates practice law without having passed the exam. 

The court rejected this idea last month, deciding instead to move the exam online and delay it until Oct. 5-6. It also permanently lowered the threshold passing score from 1440 to 1390 for this year forward, but declined to make it retroactive

Stone questioned whether the California bar exam will happen in October, given technical problems other states have had in administering a remote exam. “A lot of the online bar exams across the country have been controversial, so we’re not sure it’s going to happen,” he said.

The resolution passed the Assembly Judiciary Committee by a 8-2 vote Wednesday, with Republican Assemblymen Jay Obernolte and Kevin Kiley voting no. 

Kiley, who represents Sacramento, said Stone’s proposal to go back five years “seems arbitrary.”

“What is your criteria for guiding what’s fair here? It seems to me what the fairest thing might be is simply to respect the elections of people when they made the decision to take the bar,” Kiley said.

But Stone said five years is the longest that bar exam results remain valid. While it is reasonable to assume the bar has adequate records going back five years, it might not, Stone added.

“That might be a challenge for them, and it may be something we need to look at, but is a reasonable ask of the bar given record limitations and how those processes work,” he said.

What Stone won’t concede, however, is that the system needs an overhaul.

“The whole thing is arbitrary,” he said. “The whole thing is not necessarily helpful in indicating who is going to be a good practitioner of law or not. This is a simple statement saying, ‘you have an easy release valve to a significant situation right here, why don’t you take it?’”

Republican Assemblyman James Gallagher of Yuba City declined to vote but said he thought applying the lower standard retroactively would be unfair to those who took the test multiple times and passed. “I think it sends a mixed message,” he said.

John Crittenden, senior counsel at Cooley LLP, testified on his own behalf on Wednesday, saying that, with the second-highest cut score in the nation, California all but guarantees that talented would-be lawyers will flee the state to practice in other jurisdictions.

One of those is his own son, who failed the California bar exam but passed the multistate test and was admitted to the bar in Oregon. He’s now a deputy district attorney trying complex felony cases.

Crittenden also teaches at the University of California, Los Angeles. He said one of his best students two years ago, the son of immigrants from Latin America and a first generation college student, fell short of passing the California bar exam and ended up practicing in Washington, D.C.

“Both of these attorneys received their undergraduate and law degrees from UCLA,” Crittenden said. “California educated them, yet other jurisdictions get the benefit of the educations we provided. Even with the recent adjustment our score is one of the highest in the country. Applying it retroactively would not harm the public but it would contribute to talent and diversity of California lawyers.” 

The resolution will go to the Assembly floor for a full vote before session ends on Aug. 31. 

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