SAN FRANCISCO (CN) – The bar exam is a poor measure of a lawyer’s competence, law school deans told California State Bar officials on Tuesday at a public comment session regarding whether to adopt a lower passing score.
“We’re testing academic things but they don’t go to the matters that actually cause lawyers to do things that harm the public – things like failing to follow through on matters, mishandling money, not keeping clients adequately informed,” said Greg Brandes, former dean of Concord Law School in Los Angeles. “If you listed all the top 25 things that a person is disciplined for, very few of the items on that list would have any connection to the bar exam.
“The bar exam as it’s presently constituted is a poor instrument for actually engaging in public protection.”
Brandes was one of several educators who urged the bar to lower the minimum passing score, currently the second highest in the nation at 144 out of 200.
In February, California Supreme Court Chief Justice Tani Cantil-Sakauye sent the bar a letter directing it to study all issues affecting passage rates, which have steadily declined over the last eight years.
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.
But law school deans urged the bar on Tuesday to consider lowering the passing score to at least 139 points, arguing that a high cut score cannot predict whether an applicant is minimally competent to practice law.
Dean Barbieri, dean of John F. Kennedy School of Law, was among these.
“I don’t understand 1,440. It’s a statistical number, it’s one standard deviation which bears no relationship to minimum competence,” he said, referring to the old 2,000-point scale from the 1980s that is equivalent to today’s score of 144.
He added, “If you went to a 139 I’m very confident that you would not find a whole batch of incompetent people entering the profession.”
Barbieri was a bar exam grader from 1982 to 2000. From 2001 to 2010, he served as director of examinations for the state bar and developed essay questions for the exam.
According to Barbieri, those who score 139 and take the test several times will ultimately pass.
“As the dean of a law school, I work with all of our students who are not successful on the examination and I see errors. It’s not that they don’t know the law, it’s that they’re making errors based on the presentation.”
He said selective answers that appear on the bar website, which he used to be responsible for selecting, “do a terrible, terrible disservice to people studying for the bar exam.”
Law schools and students studying for the exam look at those answers, he said, and tell themselves they need to pattern their own answers after them.
“People try to mimic those and there’s no way in the world they can,” Barbieri said.
Anthony Niedwiecki, who recently became dean of Golden Gate University School of Law, said law schools have become so consumed with bar passage rates that they offer whole classes devoted to passing the exam.
“With California scores so out of sync with other states, California schools are required to spend more time teaching students how to take the bar exam instead of providing them the essential skills and opportunity to engage with clients in real practice,” he said.
At the University of New Hampshire, he noted, law students can be selected for a Daniel Webster fellowship where they take a number of practice-oriented classes like alternative dispute resolution and trial advocacy. They’re also required to take six credits in a clinic or supervised externship and complete an exam in each course. At the end of the fellowship, a state bar examiner examines the student’s portfolio.
“Upon graduation and clearance of character and fitness, the student becomes a member of state bar,” he said.
Niedwiecki pointed to a 2015 study of program graduates and students who only took the bar exam.
“Unsurprisingly, the students in the program outperformed significantly lawyers who simply took the bar exam,” he said. “I know many employers out there who would rather hire those who have had hours working with clients on real client matters instead of those who just simply pass the bar exam with a very high cut score, especially when there’s absolutely no evidence out there that the lawyers in the other 48 states that have cut scores below California’s are less prepared.”
David Faigman, dean of the University of California, Hastings College of the Law, said California should consider going even lower than 139.
“California should use either a comparable state score such as New York’s 133 or the median of all states in the country, which is 135. Neither may be perfect cut score, but in the meantime California should not continue to be such an extreme outlier,” he said.
“Doing something because everyone else is doing it may not be the best basis for action, but when the lives and careers of so many students are at stake it’s a whole lot better than departing from what everyone else does for no reason whatsoever.”
The state bar is accepting online public comments until Aug. 25. On Aug. 31, its Committee of Bar Examiners will vote on whether to recommend a lower cut score. The bar’s full board of trustees will then vote on whether to submit the recommendation to the state Supreme Court on Sept. 6.
Though Tuesday’s session was packed with educators, students also lined up to comment.
Linda Martin, who called the proposed lower score “a Band-Aid” on the larger problem of equity in education, took several attempts to pass the exam while also working a full-time job. She eventually passed, but said she had to study in the wee hours of the morning while caring for her one-year old child.
“I was no smarter the last time I took the bar exam than the first time,” she said through tears.