Where Are We Now, and Where Do We Go from Here?
By Cassandra Sneed Ogden, Esq., and E. Christopher Johnson Jr., Esq.
In the spring of 2008, the American Bar Association (ABA) House of Delegates approved Interpretation 301-6, the bar passage standard for law schools (the Bar Passage Standard). For many observers, this development was the culmination of yet another milestone in the long journey toward achieving diversity in the legal profession. That said, the saga of the Bar Passage Standard had less to do with increasing diversity, but instead preventing further erosion of diversity at a critical point in the educational pipeline—the nation's law schools.
Providing context for this exploration of the Bar Passage Standard requires a review of the state of diversity in legal education. Data obtained from the ABA Section on Legal Education and Admission to the Bar (the Section) shows that African American enrollment in law school has remained unchanged since 1995. One reason for this, as shown by data obtained from the Law School Admissions Council (LSAC), is that 62% of the African Americans that apply to ABA-approved law schools are not accepted, or “shut-out.” In comparison, Mexican Americans (not Hispanics as a whole) have a shut-out rate of 47%, and Caucasians have a shut-out rate of 34%.
To address this, many diversity advocates have contributed over the years to “pipeline” initiatives that address this issue by working with children in inner-city school districts to help them become lawyers. One of the first efforts in this area was the Council on Legal Education Opportunity (CLEO). Since 1968, CLEO has prepared students from diverse backgrounds to become members of the legal profession, and has helped more than 7,000 minority and disadvantaged students to enter the profession. (For more information on CLEO, please see the “Association Focus” section [pp. 68 – 70] of the November/December 2008 issue of Diversity & the Bar® ).
Despite these and other accomplishments of the last 40 years, lawyers of color currently represent only 10% of practitioners in the profession. With that in mind, it is easy to see why proponents of diversity were concerned when initial versions of the Bar Passage Standard appeared to represent a retreat from—and not advancement of—diversity in American law schools.
Unintended Consequences
One criterion that every law school must satisfy in order to earn and maintain its ABA accreditation involves the minimum percentage of its graduates who pass the bar. If a law school fails to meet this standard, its accreditation could be in jeopardy; graduates of a school that loses its accreditation cannot sit for the bar in a number of jurisdictions.
In December 2006, the Department of Education (DOE) issued a finding that suggested that the Section might have applied inconsistent bar-passage standards when evaluating law schools. In response, the Section promised to adopt a standard for bar passage (following a public comment period) that was “transparent and consistent” by August 2007. In their haste to craft the specific language required by the DOE, the Section failed to adequately consider the ultimate impact of a “bright-line” benchmark on minority enrollment in law schools. The controversy that ensued resulted in months of comments, lobbying, and debates between the Section and an ad hoc drafting group (Ad Hoc Group).1
Prior to the DOE finding, a 60% passage rate had long been the accepted minimum for first-time bar passage. At its February 2007 meeting, the Section raised that benchmark to 70%. In May 2007, the Section's Standards Review Committee (SRC) held a public hearing, at which more than 20 representatives from across the country spoke out against the proposed change. Despite the opposition expressed at the hearing, the committee subsequently adopted a three-part “85/70/10” measure with which a law school should comply: (1) cumulative bar passage rate of 85% after three examination attempts; (2) first-time bar passage rate of 70%; or (3) first-time bar passage rate within 10 points of the average rate of ABA-approved law schools in the same state.
The LSAC's National Longitudinal Bar Passage Study, conducted in 1998, found that the first-time passage rate for African American students was about 61.4%. Although the passage percentage increased to 77.63% after several attempts, both scores fall below the benchmarks proposed by the committee. Furthermore, the average first-time bar passage rate in California from February 1997 through July 2006 was 59.9% for all examinees, well below the recommended 70% benchmark; at least half of all ABA-approved law schools in that state would be in jeopardy if the interpretation was imposed. In addition, by some estimates, more than 30 law schools—including several well-known historically black colleges and universities, and others that have historically provided access to students of color—would also have failed to meet this standard. Another potential consequence of the measure was that schools would be less likely to accept the application of a student who, in their view, was less likely to be able to pass the bar on the first attempt.
After extensive discussion, the Ad Hoc Group and the Section agreed on a more reasonable bar passage standard. In addition, the Minority Caucus of the ABA House of Delegates (Minority Caucus), along with seven past presidents of the ABA, supported the position of the Ad Hoc Group that the Section develop and adopt a new standard in which bar passage serves as only one of several outcome measures that it will use to determine, in light of each school's mission, compliance with student achievement requirements. This collaborative effort resulted in a final revision of the Bar Passage Standard that was approved by the House of Delegates at the ABA Mid-Year Meeting in February 2008.
As adopted, the Bar Passage Standard offers several objective alternatives to law schools (regardless of whether provisionally or fully approved) for demonstrating compliance related to bar passage. Under the final standards, law schools must meet one of the following two benchmarks.
- Over a five-year period:
- 75% of the graduates who sat for the bar must have passed; or
- In at least three of the five years, 75% of the students who graduated in those years and sat for the bar must have passed.
- In at least three of the previous five calendar years, the school's first-time annual bar passage rate is no more than 15% less than the average first-time rate for graduates of ABA-approved law schools in the same jurisdiction.
If a law school fails to meet one of the requirements and cannot come into compliance within a two-year period, it may seek to extend the two-year period by providing evidence of its efforts to correct the deficiency, as delineated in detail in the Bar Passage Standard.
Under the Bar Passage Standard as modified, only a handful of law schools appear to be at risk of losing their accreditation. Nevertheless, many obstacles to maintaining a diverse pipeline to the legal profession continue to exist, and a great deal of improvement is necessary to ensure diversity in law school enrollment and graduation.
Suggested Improvements
The protracted negotiations that led to the revision and ultimate enactment of the Bar Passage Standard had another beneficial result: It focused the attention of a broader segment of the legal profession on some significant issues in legal education that complicate efforts by the ABA and others to make the legal profession more diverse. The authors encourage an examination of the following additional considerations for improving the pipeline.
- Decreasing Emphasis on the LSAT. The Law School Admission Test (LSAT) is viewed as a proxy for the bar exam; it is the only predictor, prior to law school, with regard to potential first-time success on the bar exam. An overemphasis on bar passage in the accreditation process runs the risk that admissions officers may focus inordinately on the LSAT scores of candidates—a development that would have a disparate impact on minority candidates (who, in many instances, score lower than their non-minority counterparts).
Furthermore, it is important to note that a student's LSAT performance has not been validated as a predictor of success as a lawyer. Rather, it has been only shown to predict success in the first year of law school. Moreover, ABA accreditation standards warn against over-reliance on the LSAT. Some schools, such as the University of Michigan, are attempting to limit the use of the LSAT for certain incoming students, and the Section continues to review the ongoing viability of the exam as an accreditation measure. 
Defining Outcome Measures. One significant issue in the debate of the Bar Passage Standard was whether the bar exam itself should be such a prominent criterion of the accreditation process. A review of the accreditation measures of many other professions (e.g., medicine, dentistry, architecture engineering, and pharmacy) showed that these professions did not rely heavily on passage rates of their respective equivalents of the bar exam in accreditation standards, and some do not consider the licensing exam at all. Rather, their accreditation processes consider other outcome measures of student achievement, such as performance in clinics, employment rate, evaluations from employers, and student evaluations.- Revising the Accreditation Standards. In addition to addressing the issue of incorporating outcome measures in the Accreditation Standards, the SRC is undertaking a mandated review of all of the accreditation standards. The SRC's membership includes lawyers whose expertise stem from the practice of law (rather than academia). They bring a different, practical-oriented perspective to the important work of this committee. This review is anticipated to take up to three years to complete; any new or revised standards suggested by this committee will have to be approved by the Section and reviewed by the ABA House of Delegates.
- Improving the Bar Passage Rate. In order to increase diversity in the legal profession, the minority passage rate on the bar exam must be increased. To support this objective, the Section has removed restrictions on law schools teaching bar preparation courses. Furthermore, in partnership with the LSAC, the Section hosted a Bar Passage Conference in the fall of 2008 where best practices for increasing bar passage were shared among law schools. Another related issue is that many law school graduates have difficulty paying for bar prep courses and living expenses while studying for the bar. A new coalition, called the Alliance for Legal Education, is working to ensure that graduating law students can obtain the funding they need for bar exam preparation through federally guaranteed student loans.
The debate over the Bar Passage Standard has awakened and enlivened the dialogue around the effects of legal education on diversity. MCCA remains committed to promoting an ongoing discussion of critical developments in widening the pipeline of minority candidates into the profession. DB
Note
1 This Ad Hoc Group was led by Bud Bakey, chair of CLEO; Joe Harbaugh, dean of Nova Southeastern School of Law; Chris Johnson, then-vice president and general counsel of GM North America; Rick Matasar, dean of New York Law School; John Nussbaumer, associate dean of Thomas M. Cooley Law School; and many other interested parties, including the National Bar Association and the Hispanic National Bar Association.
Cassandra Sneed Ogden, Esq., serves as the executive director of CLEO. Please see www.cleoscholars.org for more information.
E. Christopher Johnson Jr., Esq., is the director of the LL.M. program in corporate law and finance at the Thomas M. Cooley Law School in Auburn Hills, Mich. He recently retired from practice as vice president and general counsel of General Motors North America.
From the May/June 2009 issue of Diversity & The Bar®