LOS ANGELES (CN) – The State Bar of California voted narrowly to send the Golden State’s highest court a range of options regarding potential changes to the minimum score necessary to pass the bar exam.
The 6-5 vote offers little clarity on whether the minimum or “cut” score will be changed as the state bar’s board of trustees deferred to the California Supreme Court, which has ultimate authority over the matter.
And the state bar’s deference means that fierce advocates on both sides – those who advocate for reducing the cut score to increase passage rates and those who want to maintain the current high standards in the state’s legal profession – will likely be disappointed.
“It’s not our job to set the bar rate,” board president James Fox said during the nearly 2-hour deliberations, adding that any adjustment to cut scores is solely the prerogative of the state Supreme Court. “We are merely supplying the justification for the court to come to what it considers to be the appropriate solution to the problem.”
That justification came in the form of a study and a staff recommendation that found three options – maintaining the cut score at 144 or lowering it to either 141 or 139 – would all fall within a range the study authors feel confident will protect the public by ensuring lawyers have minimum legal competence.
California has the second highest cut score in the nation, behind only Delaware. The national median score is 135.
State Supreme Court Chief Justice Tani Cantil-Sakauye tasked the state bar with conducting a study on the possible effects of altering the cut score after a consortium of law school deans from around the state complained the passage rates for the bar exam were too low. The deans said this hurts their mission and leaves the state ill-equipped to meet the demand for legal services.
The passing rate for this year’s February exam dipped below 35 percent, the lowest for a spring sitting in eight years.
Not everyone on the board was in favor of deferring to the Supreme Court. Some board members said it’s the duty of the state bar not just to present the court with options, but also to make an affirmative declaration in favor of a particular option.
“I’ll be voting against the staff recommendation because I believe we need to give the court a recommendation,” said trustee Richard Ramirez, adding that he thought the cut score should be reduced. Four other trustees joined Ramirez in voting against the recommendations.
Much of the public comment in advance of the vote favored reducing the cut score, although there was not consensus.
Several commenters referenced social justice issues, like access to justice and diversity in the legal profession as a major reason for reducing the cut score.
“If you lower the cut score you get an increase in diversity in the profession,” said Bridget Gramme, administrative director for the Center for Public Interest Law. “This is significant especially in the absence of any evidence that the public will be harmed.”
Indeed, the study showed little to no relationship between lower cut scores and an increase in malpractice or attorney-discipline cases.
But some cast doubt on whether lowering the cut score is a panacea for increasing diversity in a profession that sorely lacks it.
“Lowering the cut score is not the right way to promote diversity in the profession,” said Karen Goodman, chair of the Committee of Bar Examiners, a separate entity from the state bar that regulates law schools.
The bar examiners previously voted 13 to 1 against lowering the score, Goodman told the trustees during the meeting.
However, several law school deans from some of the smaller law schools in the state told the board that they represent a more diverse population and their students are being unfairly kept out of practicing law in California, often resorting to fleeing the state for other pastures with a more reasonable path toward entering the bar.
“We have a long history of providing access and opportunity to underrepresented groups,” said Anthony Niedwiecki, dean of Golden Gate University School of Law.
State bar trustee Renee LeBran said she was very sensitive to issues of diversity in the legal profession but said more studies are needed to determine why passage rates in underrepresented groups tend to be lower.
She cited studies that showed the SATs had unconscious biases that favored white male students and pondered whether the same could be true – hinting that it could be the test and not the score that is responsible for declining passage rates.
LaBran also said the board should wait until the results from the July bar exam are in before moving forward with a recommendation, given that July’s exam was changed from a one-day to two-day format.
“We are missing a huge data point in that the test has undergone its biggest change in years,” she said.
Nevertheless, other board members said the California Supreme Court gave a specific timeline for the state bar’s recommendation to invest the process with a certain urgency.
“We’ve done as much as we could do,” said the bar’s executive director Elizabeth Rindskopf Parker.
Ultimately, a vote was taken that punts a final decision to the state Supreme Court.
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