Law School Deans Ask California to Apply New Bar Exam Passing Scores Retroactively

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

(CN) — In the wake of the California Supreme Court’s sudden decision to lower the bar exam’s minimum passing score, law school graduates and deans are now asking that the lower score to be applied to graduates who took the exam in February.

The court announced last week a decision to lower the minimum passing score from 1440 to 1390. It also ordered the State Bar to prepare to administer an online exam on Oct. 5-6 and directed the agency to develop a temporary provisional licensure program, under which graduates can practice specified areas of law under the supervision of a licensed attorney.

In a letter sent to the high court Thursday night, a group of 19 law school deans said they all knew of graduates who took the bar in February and would have passed, as their scores fell within the 1390 to 1440 range.

“They did well enough on the most recent exam administration to be considered eligible to practice law by the recently announced standard, but must now maneuver the profound uncertainties swirling around the October exam, and must also do so without the provisional licensing opportunity,” the deans wrote. 

Their letter also said that the timing of new scores affected people of color in greater proportion. 

“In addition, we know that this pandemic is having disproportionate effects on communities of color as well as disparate socioeconomic effects. It is therefore reasonable to believe that a number of those taking the bar exam again in October, including many candidates of color, have been disproportionately impacted by the pandemic and its effects,” they wrote. 

“The costs for these graduates of having to take the bar yet again in the midst of this exceptionally challenging moment are clear; what genuine benefit to the public is achieved from putting them through that process, given that they received a score of 139 or better just a few months ago?”

The letter was conceived by UC Hastings professor and legal ethics expert Richard Zitrin, who chairs the Bar Association of San Francisco’s minority scholarship program. While Zitrin is not a signatory to the letter, he broached the idea with UC Hastings Dean David Faigman, who is one of the 19 deans who signed it.

In an interview Friday, Zitrin said he was concerned about the unfairness and inconsistent application of the new score, particularly for low income students and students of color.

“I talked to several professor friends of mine and we all know people of color who would have passed in February 2020 but for the fact that the higher cut score was applied,” he said. “I have a scholarship student who graduated and took the February 2020 exam and got over 1400 but less than 1439.”

The deans’ letter follows two separate petitions from law school graduates, one asking that the new minimum score be extended as far back as July 2017, when the exam was first administered over two days rather than the traditional three.

The other petition asks the court to consider applying the new score retroactively to 2017, but also makes a strong argument for February 2020. 

“We’re being forced to take the bar exam again even though we just proved we’re competent to practice,” said Evan Miller, a 2019 graduate of the Santa Clara University School of Law. His February 2020 grade would have been high enough to pass had the new score applied to him. 

Miller has spent nearly a week drafting his petition which currently has roughly 300 signatures. It lays out extensive arguments for retroactivity, including the adverse impact of the Covid-19 pandemic on the grading process for the February bar, where normally in-person discussions about essays were suddenly moved online.

“The lockdown orders in March had a huge effect on the grading process of the essays,” he said. “That’s a really important process where they are having constructive conversations about how they’ll be grading our essays. At the last minute they were doing it on Zoom. If there was ambiguity, then people who were within re-grading range would have benefited from a more consistent process.”

Zitrin shares Miller’s sentiments. 

“It’s certainly a possibility that shelter-in-place because of Covid could affect the grading process because I know of people who have been exam graders. They meet and talk and discuss and debate, and while you can still do that virtually, to a certain extent we’re all handicapped in the work we’re all doing.”

The deans’ letter also hesitates to characterize the application of the newly-lowered score to February as retroactive, since the low pass rate likely contributed to the court’s decision. 

“This was the last bar exam which at least in part caused the court to lower the score,” Zitrin said. “If the February exam were in any way the impetus for the court to make the change, it should apply to that exam.”

With multiple letters and petitions before the high court, all that’s left now to do is wait.

Zitrin, who has filed multiple letters with the court in the past on attorney ethics rules, said he has no expectations as to what the court will do.

“Of course for students it’s very frustrating,” he said. “The court doesn’t comment on those things and it never has. We’re not going to find out what effect the letter has until the court does something.”

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