LOS ANGELES (CN) – The State Bar of California on Monday voted to release a study that proposes lowering the minimum passing score for the bar exam by three points, from 144 to 141.
California currently has one of the highest required passing scores in the nation, second only to Delaware. But passage rates have dropped drastically over the last eight years, to an historically abysmal low of 43 percent in July 2016. This past February it got worse: only 34.5 percent of applicants passed.
The study comes as the California Supreme Court decided to strip the state bar’s Committee of Bar Examiners of its authority to set the minimum passing score. The bar has until Dec. 1 to submit its recommendations to the high court, which will decide what the exam’s passing score, or “cut score,” will ultimately be.
That minimum score will be retroactively applied to this year’s July exam. A state bar memo to the committee says the lower score could raise the rate of passage by 8 percent.
In February, Chief Justice Tani Cantil-Sakauye sent the bar a letter directing it to study all issues affecting passage rates and determine whether Californians are actually better served by maintaining the 144 cut score. Another study on the content of the exam itself is still ongoing, according to a state bar representative.
"The State Bar has responded to the court's direction to support the development of an important study to determine the appropriate cut score. The process has been as thorough, diligent, and inclusive as possible, given tight time constraints, for potential application to the July 2017 Bar Exam," state bar executive director Elizabeth Parker said in a statement Monday.
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. Notably, the panel’s report actually validated the 144 minimum score, despite declining passage rates.
The bar will hold two public hearings on the study next month, and a formal vote on the study’s recommendations will be held in early September.
At a meeting of the Committee of Bar Examiners on Monday, law school deans lined up against the current score. Greg Brandes former dean of Concord Law School in Los Angeles, said the bar exam isn’t a realistic measure of real-world law practice.
“The bar exam is a somewhat imperfect measure. We know that it tests only a few of the things a lawyer might get into. And it forces you to take essay questions on subjects you would never take a practical matter on because you don’t know anything about it. In that sense and in others, it’s an unrealistic examination because it forces the applicant into things they would never do,” Brandes said. “As long as the applicant knows they shouldn’t take that case if they’re not competent and doesn’t, they won’t have that problem in the real world.”
He added, “In a sense, the bar exam tests whether you can take the plane off the ground but it doesn’t test whether you can land it.”
Dean Gilbert Holmes of the University of La Verne College of Law in Ontario, California, said the exam’s high cut score and low passage rate can be summed up in one word: prestige.
“People love to say they passed the bar the first time in California. It’s meaningful because it’s graded so hard,” Holmes said. “But is that really important?”
Holmes was one of 20 law school deans who sent the Supreme Court a letter this year asking it to step in to lower California’s bar exam scoring method.
On Monday, Holmes said, “What’s been missing in the conversation for me is the real question of access and diversity. The bar exam is a standardized test and it’s been shown over the years that standardized tests disfavor people of color and people with low socioeconomic backgrounds. The gap shows up in third grade. So why are we continuing to perpetuate that gap?”
Trustee Janet Brewer urged caution in moving ahead so quickly with the lower score.
“I am vehemently opposed to the idea of lowering the cut score on an interim basis,” she said. “Although we don’t subscribe to the Hippocratic oath of first do no harm, I think it is an important consideration. I want to know that people can land the plane and fly the plane in addition to being able to take off in the plane.
“I don't think we need to hurry to impose this lower score until we really understand whether or not the additional people that pass have the ability to practice law at least minimally competently.”
Brewer also said applying the lower score retroactively seemed unreasonable.
“I think we are putting the Supreme Court, which as the ultimate decision-making responsibility for deciding what the cut score should be, in an untenable position of potentially having to make decisions before they have gotten all the information on which they need to make that decision. Why the rush to do it for the July bar?”
The committee voted 9-4 to send the study’s proposed options out for public comment.
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