Passing Threshold for California Bar Exam Lowered, but It Won’t Be Retroactive

(CN) — The California Supreme Court finalized plans Monday to permanently lower the passing score for the state bar exam and has decided the new passing threshold will not be applied retroactively.

After a lengthy and hotly contested debate, California’s highest court officially laid to rest a myriad of issues over how and when law students can take the exam every lawyer must pass before being admitted to their state bar.

Chief among them is California’s finalization of the changes to the lowest score a student must reach to pass the test. While California’s required minimum score was previously 1440, the second-highest minimum passing score in the nation behind Delaware, that minimum score will now be 50 points lower at 1390.

The new threshold, however, comes with one crucial caveat.

While the new score change is permanent and will apply to all California bar exams moving forward, the new change will not apply retroactively to previous test takers despite a wave of petitions from law school graduates, deans and legislators asking for the standards to apply to those who took the bar exam in February 2020.

The petitioners claimed  students who would have passed under the new threshold should be held to the new standards in the interest of fairness, with the letter noting the uncertainty of the current times and the dismaying nature of coming so close to a passing score.

“For these students, the near miss is surely demoralizing enough,” one letter signed by a series of law professors stated. “When coupled by the extended period between exams, the uncertainty of how an online exam will work, and the foreshortened time between the October results and the possibility of having to take the exam yet again in February 2021, this is likely to be exceptionally demoralizing.”

Some even sought to apply the lower threshold going back five years.

Mark Stone, California Assembly Judiciary Committee Chair, said in a letter that if the newly lowered passing threshold is enough for law students today, then there is no good reason why the standard is not be good enough for those who took the bar exam in recent years.

“If a 1390 passing score supports minimum competency to practice law today, it certainly did so in the past,” Stone wrote. “Moreover, scores in the last five years are recent enough to ensure that applicants will still retain much of the knowledge they demonstrated on the exam.”

But the California Supreme Court disagreed. According to Monday’s order, the court is not aware of any jurisdiction in the nation — except one — that has lowered the bar exam’s minimum passing score and applied that decision retroactively. The Montana Supreme Court did so four years ago, but California’s justices noted the circumstances between then and now are much too different to compare.

“Although the Supreme Court of Montana in 2016 made its decision to lower the passing score retroactive to 2013 examinees, that determination was designed to offset the effect of that court’s 2013 decision to increase the passing score,” according to a letter attached to Monday’s ruling directed to the State Bar of California Board of Trustees. “No similar circumstances are present here.”

On top of the lower passing threshold, the court confirmed Monday that law students will also be able to take their bar examinations online this year. In an effort to adapt testing needs to the ongoing Covid-19 pandemic, the exam will be conducted online Oct. 5-6, with the court strongly urging law schools to help provide their students with the resources and space needed to complete the test.

California is not the only state in the nation to move the critical exam for prospective lawyers online. At least 25 other jurisdictions around the United States have also ordered that their state bar exams administered online.

A series of other states have also taken measures to accommodate law students during a pandemic, such as a recent decision by the Georgia Supreme Court to allow those already licensed in other states to practice law in Georgia on a provisional basis.

The letter by the court to the State Bar Board of Trustees noted the court appreciates the board’s efforts during this time and that more judicial orders on how to proceed going forward will be issued after the October exams.

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