ABA Commission on Future of the Profession & ABA Vote on Bar Passage Proposal

During the midyear meeting of the the American Bar Association  (ABA) held last week in Miami, several issues were considered which relate to legal education.  I will discuss two of those issues here: the creation of the Commission on the Future of Legal Education and the proposed changes to accreditation standards concerning bar passage requirements.

First, the ABA Board of Governors created a new ABA “Commission on the Future of Legal Education”, which will become operational in August.  Championed by incoming president, Hilarie Bass, the creation of the Commission was just one component of a proposal  to restructure the power and responsibilities afforded the Section of Legal Education and Admissions to the Bar . President-elect Bass believes that the ABA’s “lack of response to the constant barrage of grievances about our system of legal education is undoubtedly impacting membership and also preventing top students from entering law school.” Bass cites “low bar passage rates, excessive law student debt, the depressed job market for new lawyers and the lack of value that employers place on the capabilities of recent law graduates” as reasons to restructure.  Although the Board of Governors voted to create the commission, it did not “sign off on the extensive slate of responsibilities that the commission would have under the original proposal from ABA president-elect Hilarie Bass.

Earlier this month, Karen Sloan’s February 1st article in the National Law Journal helpfully outlined the arguments for and against the Bass proposal, including suggestions that the proposal was made too precipitously.  Sloan also notes those who  applauded the need for reform quoting SALT co-president Denise Roy about the need for reform in legal education and bar licensing,

Ms. Bass’s proposal promises to do just that, and SALT supports the effort. Of course, its success will depend on naming a commission whose members are high­quality creative experts who will consider a wide range of views from both within and outside the academy.”

Clinical Legal Education Association co-presidents Beth Schwartz and C.Benjie Louis agreed that there are challenges with the current structure and are also quoted in the February 1st article:

The Council has often ignored the comments of members of the law school community when considering changes in ABA accreditation standards.  The Council also has failed to provide leadership or a forum for discussing the challenges and opportunities of legal education and bar licensing.”

This past Tuesday, those of us who are members of the Section on Legal Education and Admission to the Bar, received an e-mail from the Chair Greg Murphy reporting  that

“the ABA Board of Governors passed a motion last week authorizing the creation of a new ABA Commission on the Future of Legal Education, which will become operational in August. The Board did not address President-Elect Bass’s proposal to change the name of the Section of Legal Education and Admissions to the Bar, the functions of the Section, or the funding of the Commission on the Future of Legal Education. I have invited President-Elect Bass to come to the Council’s March meeting where these matters will be the subject of collaborative discussion. The members of the Section and other stakeholders will be kept advised, as appropriate.”

So, stay tuned!

The second issue important to legal education concerned the ABA House of Delegates vote on proposed revisions to Standard 316 concerning bar passage.  The revisions would eliminate the old more nuanced standard and replace it with the following ultimatum:

Standard 316. BAR PASSAGE At least 75 percent of a law school’s graduates in a calendar year who sat for a bar examination must have passed a bar examination administered within two years of their date of graduation.

Proponents and opponents of this proposed revision make good points. For example, consider Law School Transparency’s view that the present toothless standard (no school has ever been found to be out of compliance with 316) has permitted many schools to exploit students by enrolling some with LSAT numbers that predict failure. Equally persuasive are the views of those, such as the National Black Law Students Association  and SALT who oppose the revision on grounds that the proposal failed to address racial inequities in the law school admissions process and legal education.  In the ABA law Journal, Stephanie Francis Ward described data submitted for the initial hearing in March of 2016 by William Patton, a professor emeritus at Whittier Law School, which found that 33.4 percent of black students in California and 29.8 percent of the state’s Hispanic law students attend the five ABA-accredited law schools that would be most at risk of violating the proposed revision.

Meanwhile, CLEA called its nationwide membership  to action to oppose the proposed revision by  contacting their individual state delegates to the House.  CLEA’s formal statement in opposition acknowledges the ABA’s responsibility to discourage predatory practices but also emphasizes the need for more understanding of the diversity consequences.  The CLEA and SALT  opposition also makes crucial points about the danger of our using the current bar exam as the gatekeeper for the profession. As the SALT comment notes, “we continue to have fundamental concerns about the limitations of the current system of licensing lawyers through the bar exam and the unfortunate ways in which Standard 316 affects law school admissions and pedagogy.

In my opinion, the bright-line test which the proposed revision creates would upend the balance of legal education in a harmful way. First, there should be a deeper exploration of the consequences to the diversity of law schools and  our profession before revising. This should be done in conjunction with those committed  to remedying the embarrassing  fact that our profession is so much whiter than other professions.   Our profession is almost 90% white and has decreased in diversity between  2000 and 2010 according to ABA lawyer demographics.  Second, this proposal is likely to be  harmful to the interest of current and prospective students in proper preparation for  current practice in the 21st century economy.  One glimpse at the detailed survey work of the Foundations for Practice project demonstrates the plethora of skills which legal employers in this economy desire and which the bar exam does not even begin to test.  Third, imposition of this standard now will likely harm future students and the development of innovation in law schools for those students.  This is a time when all of us entrusted with the professional development of lawyers need to be thinking strategically about what lawyers will be doing 10 to 40  years from now. We have to be concerned about what a  future in a reduced labor economy – with artificial intelligence infused throughout it – means for the role of lawyers and the development of law students.  Finally,  making a bright-line test for only one factor – bar passage rate – and not for employment rate, skills and clinical opportunities, or other significant indicators, will reify a bar licensing process that is deeply flawed.  

In short, I agree with the ABA House vote to send the proposal back to the Council of the Section on Legal Education and Admission to the Bar for more pondering.  There must be a better way to discourage predatory behaviors by certain law schools without potentially destroying much that is good and promising in legal education.

3 Responses

  1. I agree with you about Standard 316. I think the bar exam is a flawed way of testing competence to be a new lawyer, and it puts pressure on law schools to teach to this particular flawed test, detracting from critical aspects of educating prospective lawyers. A bright line 75% pass standard, ignoring the variations in passing scores and passing rates around the country, would lead to further emphasis on the bar exam over other measures of lawyer competence and make it harder to address the discriminatory impact of the test. There was substantial opposition to the proposed new rule and calls for more study, especially with respect to the discriminatory impact, but little attention was paid to that when the Council voted to send the proposal to the House of Delegates. I hope that the Council will now take the time to more fully study the effect of the proposed standard and consider how to address the problem (admitting and taking money from students who are not good candidates for eventually passing the bar) without doing damage to legal education or further solidifying the position of the flawed bar exam as the exclusive method of measuring competence for practice.

  2. I certainly agree with Mary and Carol that passage of a bar exam within two years is not a defensible criterion for evaluating the legitimacy of a law school. I may even be more libertarian as far as admitting students with nontraditional credentials is concerned: in light of the many qualities and attributes that can equip someone to become an excellent lawyer, I do not want to exclude certain potential students even if it may take them several years to pass our current bar exams with their truncated focus — as long as the would-be students are fully and emphatically informed of the additional years and funds they might have to invest in multiple attempts at the bar. It is not as if, absent this Standard, law schools would be insufficiently obsessed with bar passage rates, given their exaggerated role in USNWR rankings. I don’t think the ABA needs to reinforce this.

    However, rejection of Standard 316 leaves the question: what then _should_ be the outcome measures used to assess the performance of a law school? It is understandable why lawyers seize on bar exams. They all had to pass a traditional bar exam, perhaps even more antiquated than today’s; and nothing else was utilized to certify them to practice law. But although some great ideas for supplanting or supplementing the bar, like Kris Glen’s public service option, have been floated, we are far from having devised a coherent, comprehensive set of tools/techniques that will differentiate the relative caliber of law schools, at least in terms of “outcomes” — i.e., the quality of graduates.

    Roy Stuckey wrote about this in the original _Best Practices_ but the development of a quantifiable alternative to replace Standard 316 is still on the legal academy’s agenda.

  3. For states like Louisiana that do not use the MBE or the UBE, this rule may become even more difficult to respond and analyze the impact. Did anyone analyze how many successful attorneys currently practicing may have been excluded from the profession by such a rule?

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