Proposed Change to Bar Pass Accreditation Standard

This post alerts readers to a proposed change in the bar pass accreditation standard and questions that change raises.  It also asks whether the proposed accreditation standard change opens the door to a bigger discussion about the need for a licensing exam that better reflects the competencies needed to practice law.

Proposed Change

A proposed change to ABA Standard 316, the bar accreditation pass rate standard, is out for notice and comment. The proposed change simplifies the standard to a single criteria: “At least 75% of a school’s students who sit for a bar exam must pass an exam within two years of graduation.”

The proposed standard eliminates the current provision that accounts for the significant variations in states’ overall bar pass rates. Currently, schools are in compliance with Standard 316 if “in three of the last five years, a school’s first time bar passage rate is no more than 15 points below the average first-time bar passage rates for graduates of ABA approved law schools taking the bar exam in those same jurisdictions.”

Questions The Proposed Change Raises

A recent Society of American Law Teachers comment letter provides an in-depth exploration of numerous unanswered questions the proposed accreditation standard change raises.  Those questions include:  1. its impact on schools in states with historically low bar pass rates; 2. its impact on schools in states which recently have adopted the UBE that are in the process of adjusting their curriculum to conform to the UBE; and 3. its potential impact on access to legal education if the proposed change causes schools to rely even more heavily on LSAT scores in their admissions process. These questions suggest a need for more information before adopting this proposed Standard.

Others who want to comment on the proposed change have until July 29 to do so.

Proposed Standard Prompts Questions About the Exam

Schools clearly have an obligation to ensure their students are able to obtain a law license and accreditation standards must ensure schools meet that obligation.  That said, this proposed standard change should open the door to discussions about the bar exam itself.

Why do we have an exam that requires memorization of thousands of legal rules, many of which may be inapplicable in an examinee’s own jurisdiction?  Does an examinee’s ability to read, issue spot, analyze and answer two hundred multiple choice questions in 360 minutes [allowing less than two minutes per question] really demonstrate that person’s minimum competence to practice law?    Is an exam that tests a wide range of doctrinal areas but only a few lawyering skills, and that tests lawyering skills in ways largely unrelated to law practice, the best way to  protect the public from incompetent lawyers?

As the SALT comment notes, many states “have attempted to address the disconnect between the bar exam and law practice with alternative licensing requirements designed to ensure newly licensed lawyers possess a broader range of competencies than those tested by bar exams.”   To better protect the public from incompetent newly licensed lawyers, some states have added pro bono work or experiential learning and practice requirements. These additional requirements may help remedy bar exam inadequacies but they also  create additional hurdles for future lawyers, present regulatory and administrative challenges for state licensing agencies, and create a wide range of issues for schools with a national student body.

At the same time there is a push for national uniformity in law licensing via the Uniform Bar Exam [UBE],  we see an array of state licensing requirements.   If we had a bar exam that actually measured minimum competence to practice law, would states need to develop individualized supplementary licensing mechanisms?

A Time For Change?

The NCBE has engaged in a concerted campaign to push states to adopt the UBE.  What would happen if the tables turned and states pressured the NCBE to develop a test that better measured competence to practice law? What would happen if some entrepreneur developed a superior law licensing exam and threatened the NCBE’s virtual monopoly over the law licensing process? Would we then have a test that more accurately reflected and assessed the skills lawyers need?

If there is a demand, a product appears. That certainly is what we saw in the rapid changes to legal education models brought on by public demand.

As colleagues and I wrote about in a recent article, many legal educators and scholars have developed a range of assessments that measure a much wider range of lawyering skills than is currently tested on bar exams.  Why isn’t the NCBE working with those people to develop a better bar exam?

While legal educators adapt what and how we teach to help prepare students for the existing bar exam, we also should be questioning the validity of that exam.  Discussions about the proposed amendments to Standard 316 provide an opportunity to push for much needed changes to the bar exam.

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