Posted April 26, 2017 9:35 AM
Updated May 1, 2017 10:08 AM

Setting the bar for law schools: A national debate

Daniel B. Rodriguez
Michael J. Kaufman
Harold Krent
Darby Dickerson
By Lauren P. Duncan
Law Bulletin staff writer

The Illinois bar exam pass rate dipped to 69 percent in 2016, the third consecutive year of tumbling numbers. A few of the terms law school deans used to classify the situation included a “phenomenon,” a “disturbing trend” and a “really complicated and multifaceted issue.”

None had a cure-all answer to remedy the apparent decline in law school graduates’ performances on the Illinois exam, but all agreed on one thing: Something needs to change.

Whether that change should take place within the schools or within the bar exam process itself is a question that has been debated at the national level. At an American Bar Association House of Delegates meeting in February, the 589-member group discussed — and ultimately rejected — a proposal to tighten law schools’ accreditation standards. The proposal included requiring that at least 75 percent of their graduates who take the bar must pass the exam within two years of graduating.

The current admission rule, called Standard 316, is written so schools must achieve the 75 percent bar pass rate, but they have five years to do it.

The proposal to tighten Standard 316 came from the Council of the ABA Section of Legal Education and Admissions to the Bar in response to issues affecting law schools and their graduates since the height of the Great Recession.

Those issues, which include increased student debt, drops in applications and lower LSAT scores of admitted students, have created a “perfect storm” in legal education today, Utah Supreme Court Justice Christine M. Durham, a member of the council, told the ABA’s House of Delegates.

“To the extent that schools have been squeezed between these dropping numbers and their needs to maintain the financial bottom line, some have opted to admit students who are at significant risk of never qualifying for a license to practice law. The ABA’s accreditation body and its own accrediting entity at the U.S. Department of Education have been increasingly aware of the serious consumer protection issues raised by these circumstances. That is, a growing number of students with massive debt who after the completion of three years of education cannot pass a bar exam within a reasonable time after graduation,” she said at the February meeting.

The council’s move to get strict didn’t appear out of thin air; the U.S. Department of Education’s National Advisory Committee on Institutional Quality and Integrity recommended last year that the ABA be stripped of its ability to accredit new schools for one year based on concerns over poor student achievement and other issues involving schools’ performances in recent years.

The ABA council has the ultimate say in changing Standard 316. The council first voted to approve of the rule change last October. After February’s divided debate, it could go back to the drawing board. The council plans to reconsider the rule change at a June meeting.

Deans speak out

A few of Illinois’ law school deans say any sweeping accreditation change should come after further review, not as an immediate reaction to either the nation’s shifting scores or the discussion in several states — including Illinois, potentially — about adopting the Uniform Bar Examination.

One of several concerns that have surfaced is how the lack of uniformity in bar exams and bar pass rates around the country would affect the ABA proposal. How does a national accrediting body tighten a standard involving a passage percentage when each state’s definition of “the bar” differs?

Northwestern Pritzker School of Law Dean Daniel B. Rodriguez ultimately supports tightening the ABA’s accreditation process, but thinks more time is needed before implementing the revised standard.

In September, Rodriguez and Syracuse University College of Law Dean Craig M. Boise co-wrote an opinion column in the National Law Journal in support of the council’s proposed rule change.

Two months later, the California Bar Exam results were released, showing 43 percent of those who took the exam last July passed — a 32-year low in the Golden State.

This shook, but ultimately did not change, Rodriguez’s stance on the issue.

“The California bar results came out … and they rocked everybody’s world. They were very low and there was a great amount of hand-wringing and concern,” Rodriguez said.

Rodriguez chairs the 14-member Association of American Law Schools dean steering committee, which acts as a sounding board for law schools. Just before the ABA’s House of Delegates met in February, the steering committee asked the ABA group to withdraw or reconsider the proposal.

Their request, Rodriguez said, was signed by more than 100 law school deans.

Despite asking for a pause to answer all the questions posed by many deans, Rodriguez emphasized that he still supports tightening the standard.

“I stand by my original op-ed without equivocation,” he said. “I believe that the proposed standard, while … it’s not a panacea, it is a step in the right direction.”

“It’s a step in the right direction in terms of accountability that schools have toward their students and the public. I think it’s incumbent upon us as law schools to make sure that we’re preparing students for the profession, and that’s impossible to do if we’re not sending adequate numbers of successful students to pass the bar. It’s a standard that [Boise] and I are quite confident that law schools can meet and if they’re not meeting them, they really have to ask themselves the hard questions.”

“I feel like I know enough to feel reasonably confident that if the ABA were to go ahead with this new proposal, it would be a positive change in the accreditation rules for legal education,” he said.

According to an analysis by the National Conference of Bar Examiners, 0.7 percent of law school graduates in 2010 took the bar exam more than four times, which is the maximum number of times a graduate can possibly take a semiannual test within a two-year period. The data showed of the 30,228 students who graduated law school that year, only 221 ended up taking the exam five or more times.

In response to those statistics, Rodriguez said he doesn’t think the rule change would have a major effect on many law schools.

“There’s a way of looking at that proposal and seeing it as punitive … there must be another hidden motive here and that is to wipe out a bunch of law schools,” Rodriguez said. “I don’t believe that’s the case, I don’t see evidence that’s the case, and frankly the statistics that I’ve seen about law schools and law graduates meeting requirements of the 75 percent over a couple of administrations [of the test] are pretty good.”

Rodriguez emphasized he doesn’t think the ABA’s accreditation proposal should be the only change that’s made to addressing the challenges facing schools, although he supports it.

“Frankly, I think we need to do a lot more too. No one, I think believes, including the ABA section, that this is like a magic bullet. You increase the standard and the next thing you know the key problems of adequate education, accessibility, affordability are solved,” Rodriguez said. “No one believes that. We have a lot of work to do, and a lot of that work is going to be done within the law schools themselves, we’ve got to take a look in the mirror and figure out the best way to grapple with those problems.”

Loyola University Chicago School of Law Dean Michael J. Kaufman is one of many deans concerned about the rule. He cited pushback from several other law school leaders regarding how the rule would affect access to legal education for different minority groups as well as analysis over whether it would make much of a difference in the accreditation process as to why he thinks the rule was opposed by so many leaders.

“My concern is that it missed the mark. The intent, I think, is to encourage law schools to make sure that they don’t admit people to law school who cannot pass the bar,” Kaufman said. “That is a laudable intent, but the law schools are very good, through their admissions teams … at balancing out those factors in a very effective way.”

IIT Chicago-Kent College of Law Dean Harold J. Krent, who is an ex-officio member of the Illinois Board of Admissions to the Bar, also has reservations about the ABA council’s proposal.

“The weight placed on the bar passage result I think is too strong,” Krent said. “I think if we keep the bar exam as it is, the 75 percent rate … should be an indicator or at most raise a presumption that there’s a problem, but it shouldn’t be definitive because the bar exam differs in different states. It’s much harder in some than in others in terms of the pass rate, so it seems like a very inexact and arbitrary way to make a blanket statement.”

Darby Dickerson, dean of The John Marshall Law School, joined the school in January after serving as dean at Texas Tech University School of Law and Stetson University College of Law in Gulfport, Fla. She supports the ABA’s proposal, but called it “a fractured issue.”

One reason she supports changing the rule is because it would eliminate some of the other language within the existing rule and replace it with a more simplified, clear-cut regulation, she said.

Dickerson also said she supports the rule change because of the data that shows most students take the exam within two years of graduating. Additionally, Dickerson said she thinks there are still ways for schools that fail to meet the 75 percent to take remedial steps to become ABA compliant.

Her support for the proposal comes despite that fact that The John Marshall Law School could be affected by such a rule change if its scores don’t improve. Last July, the school’s first-time pass rate was 65 percent, and the previous year it was 73 percent after nearly 10 years of pass scores above the 80 and 90 percent mark.

“Even with the downturn here, that’s one administration. I am fully confident that in a two-year period if not a shorter period of time we would achieve that 75 percent, so I’m not scared of that number,” she said.

At the same time, Dickerson said she agrees with the many other deans that the ABA should “hit pause” on the proposal for a year in response, in part, to California’s low pass rate.

Following the poor performance of last year’s graduates, California lawmakers and law school deans asked the state’s Supreme Court to lower the state’s cut score. In March, the court declined to do so.

California is just one example of a state that’s seen a downturn in its bar pass rates. Several other states have seen year-over-year declines in recent years, while some have seen their scores climb. Meanwhile, others in the middle have varied significantly from year to year. For example, Vermont’s overall pass rate dropped from 67 percent in 2014 to 50 percent in 2015, only to climb back up again to 65 percent in 2016.

Dickerson said the fluctuations in bar pass rates, cut scores and the exams themselves all factor into a broader concern of why the bar varies across state lines.

“I really think the boards of bar examiners need to step back and make sure that what they’re measuring really is a minimum competence to practice law so that we are protecting the public from people who should not be practicing,” she said. “I would like to see a national discussion on why examiners have picked certain pass rates. In my mind it’s not the ABA’s 75 percent, it’s that across the country, that’s going to be widely different whether that’s easier or difficult to meet.”

Change, move or reinvent?

While the ABA is looking at revising its accreditation process, concerns among legal educators over bar exam pass rates do not solely focus on law school performances. On the opposite end of the spectrum, some deans have questioned the bar exam’s validity in today’s changing legal profession and whether it’s an adequate way of testing preparedness for practicing law.

Here’s how a few of Illinois’ law school deans weighed in on the question: Is the bar examine the best way to measure whether a law school graduate is fit for practice?

“I think the way in which the bar exam is administered and the way in which it’s configured gives many of us, maybe most of us, some real concern or skepticism that it does an adequate job,” Rodriguez said.

Krent holds a similar opinion.

“The bar is a very imperfect measure about who is fit to practice law. There are many different kinds of skills required for attorneys and the bar exams measure perhaps some of them but not close to all of them,” Krent said. “Do we need some kind of gatekeeping device? I kind of think if we have tight accreditation standards by a supervising entity such as the ABA, then that might suffice as a gatekeeping device. The other question is: Do we really need some kind of rite of passage to protect consumers? I’m not sure we do.”

Kaufman, who has researched and written about how people learn, said he thinks the current test could use some work. The Illinois exam combines writing and multiple choice sections in addition to the Multistate Performance Test portion, which requires test takers to demonstrate a “lawyering task” such as writing a letter to a client or a memorandum or brief.

“In the judgment of many educational professionals in and outside of law school, that examination is inauthentic, it does not really test the competencies and professional skills that are required of practicing attorneys,” Kaufman said of the exam as a whole.

If there is a move to change the bar exam to better serve as a safeguard to the public and to reflect students’ abilities, the question then becomes: How?

Rodriguez said he thinks the movement toward the Uniform Bar Exam is “definitely a good development” that could lead to future changes in examining graduates that are more seamless across state borders.

“If you travel around the world and talk to folks who are lawyers in different countries and try to explain to them why we have 50 different bars, every state has a different bar preparation, they think that’s the craziest thing they’ve ever heard,” Rodriguez said.

Rodriguez also said more thought should be given to possible ways of testing graduates’ proficiencies, but the possibilities as to how that could be administered run the gamut.

“I think that’s where really we need some very creative thought and innovation with the help of social scientists and statisticians and experienced lawyers,” he said. “We have a very horse-and-buggy kind of structure of testing efficiency in a world in which we know that practicing law means very different things than it used to be … I think adaptation definitely is long overdue.”

Krent likewise supports the move toward a uniform exam, which is very similar to Illinois’ bar exam. When it comes to tossing around ideas about how to further change the licensure process for attorneys, though, Krent recommended looking at Wisconsin as an example, which doesn’t require students who graduate from either of the state’s two law schools to take the bar exam at all to be licensed there.

Licensure in that case requires trusting the schools to adequately prepare students, which is a notion Krent said he can support.

“One alternative to the bar … is to rely more upon the schools to get it right,” Krent said.

Dickerson supports moving to the uniform exam, but she said any additional shift in how law graduates are examined would require a “change in mindset” among legal educators and bar examiners.

Dickerson cited the Daniel Webster Scholars Program out of the University of New Hampshire School of Law as one model that could be a guiding post for how to assess graduates. Students in the program must meet certain standards, including achieving a certain GPA, taking a list of mandated practical courses and creating a portfolio of work that’s reviewed by a bar examiner. Students who complete the program don’t have to take the traditional bar exam and are admitted to practice in New Hampshire the day before graduation.

While whether the bar exam process should be revised, and how to go about it, remains a divided debate among legal professionals, Dickerson said she ultimately thinks that most law schools are genuinely focused on admitting students who will have a chance to practice one day.

“We’re a law school of opportunity and something that we are constantly evaluating is, is this a person who can pass the bar exam? And our curriculum is set up so that we hope we catch early those who we were wrong about in the admissions decision … I don’t think any law school is taking in students who that school believes don’t have the ability to practice law, at least I hope not.”

“I can’t say that across the board, but the deans I’m familiar with, this is something they’re acutely aware of, concerned with, and I think the same is true of faculty,” she said.

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