Assessing the effect of the ABA's new ultimate bar passage requirement

The ABA, after years of wrestling with the idea, finally approved a requirement that ”at least 75% of a law school’s graduates who sat for a bar exam must pass within two years of graduation.” Here’s a Q&A on some of the likely effect—at least, answering questions I’ve thought about for the last few years!

How many law schools could face accreditation risks?

There are several ways of looking at this question. You can look at all of the law schools’ ultimate bar passage rates for 2015 and 2016, but the rule only formally takes effect for the Class of 2017 (that is, bar passage attempts through 2019). We can look to past law school activity, which gives us a good starting place. But we can also be skeptical of these lists for several reasons—we should anticipate law school behavior will change, and so on.

Let’s start with the schools likely in the most dire shape: 7 of them. While the proposal undoubtedly may impact far more, I decided to look at schools that failed to meet the standard in both 2015 and 2016; and I pulled out schools that were already closing, schools in Puerto Rico (we could see Puerto Rico move from 3 schools to 1 school, or perhaps 0 schools, in short order), and schools that appeared on a list due to data reporting errors. Finally, I removed South Dakota, which saw its bar passage rate drop when the bar exam cut score was raised, but that cut score has been lowered and it appears to be in good shape.

  1L Class Size 2018 Attrition Bar Cut score
2012 2018 Delta
Atl's John Marshall 181 108 -40.3% 9.0% GA 135
Barry 293 255 -13.0% 3.0% FL 136
UDC 125 64 -48.8% 2.8% DC 133
Florida Coastal 580 60 -89.7% 3.3% FL 136
Golden Gate 227 237 4.4% 3.1% CA 144
New England 450 185 -58.9% 0.8% MA 135
Cooley 897 541 -39.7% 2.3% MI/FL 135/136

These schools represent just about 3% of law schools and just over 3% of 1Ls in 2018.

Undoubtedly, other law schools that are at or near the cutoff that are probably going to be watching their admissions, retention, and bar preparation more closely, but these are, I think, the ones most likely to face a direct effect.

Will law schools institute more selective admissions procedures?

It could be. For the most at-risk law schools, however, it’s not clear they can be much more selective absent significant financial investment (which they may lack). The alternative is for the most at-risk schools to shrink their class sizes. But some (not all) have had dramatic cuts already, as seen above. If schools can sustain bigger cuts, they may do so—but it’s not clear how sustainable that is.

For schools not directly affected but facing the heat of the new standard, they may have to begin reconsidering admissions strategies that value chasing USNWR rankings over selecting a higher quality incoming class.

Will law schools increase the number of academic dismissals?

It’s possible. From the chart above, most of these schools have fairly low dismissal rates. There’s room for higher non-transfer (academic + “other”) attrition. But ABA Standard 501(b) requires “law school shall only admit applicants who appear capable of satisfactorily completing its program of legal education and being admitted to the bar,” and Interpretation 501-3 provides, “A law school having a cumulative non-transfer attrition rate above 20 percent for a class creates a rebuttable presumption that the law school is not in compliance with the Standard.” So schools can increase dismissals, but not too much.

Will this proposal disproportionately affect schools in California, HBCUs, or for-profit schools?

Despite the fact that California has one of the highest cut scores at 144, only one school failed to meet the standard in both 2015 and 2016 (while another, not listed, is closing). California law school graduates typically score much higher on the bar exam than test-takers nationwide. A 75% pass rate within two years of graduation is therefore fairly attainable, even as first-time bar pass rates remain low. But even in California, the overall first-time pass rate among graduates of California’s ABA-accredited law schools in July 2018 was 64%, meaning many schools exceed 75% on the first attempt, and many more quickly cross 75% on students’ second attempt. That said, several California law schools failed to meet the standard in at least one of 2015 or 2016.

Only one HBCU law school is on the list. (Another missed the cutoff in 1 of 2 years.) Two for-profit law schools are in the list (others have closed recently as their numbers dwindle).

Perhaps unsurprisingly, most of the at-risk schools are in jurisdictions with relatively higher cut scores (135 and up). (The median bar exam cut score is around 133-135 in most jurisdictions.)

Will state bars lower their cut scores in response?

It’s possible. Several state bars (like South Dakota as mentioned above) have lowered their cut scores in recent years when bar passage rates dropped. If states like California and Florida look at the risk of losing accredited law schools under the new proposal, they may lower their cut scores, as I suggested back in 2016. If the state bar views it as important to protect their in-state law schools, they may choose the tradeoff of lowering cut scores (or they may add it to their calculus about what the score should be). Of course, lowering cut scores may have downsides, too, but that’s another matter….

Could schools encourage their graduate to take an “easier” bar or skip the bar exam altogether?

It’s possible. But discouraging students from taking the bar exam strikes me as an unrealistic proposition—there’s little incentive for a JD not to at least try, and the law school has few mechanisms except maybe pleading with students not to take the bar.

Taking an “easier” bar is a likelier proposition, but, again, if students are dead set on taking a “hard” bar, there is little school can do—a student who wants to practice in California not Alabama may simply be unpersuadable. The rise of the Uniform Bar Exam, however, makes this a much more promising possibility for some. A school worried about graduate passing the Oregon (137) or Colorado (138) could encourage the graduate to sit for the North Dakota (130) bar—all are the UBE, after all. If the student passes the ND bar, great! If they pass, and get a high enough score to waive into OR or CO, all the better! The only downside is convincing the student to go sit in ND for the bar exam if they don’t want to, and potentially pay for two state bar admissions if they pass, but schools might find modest funds to offset those costs.

Additionally, schools might find additional resources to subsidize students who fail the bar to retake it. Taking the bar is an expensive proposition, and students may be discouraged after a failure (or two, or three) from retaking it. To prevent those students from dropping off, schools might increasingly subsidize repeat efforts. That’s good for graduates, if it happens.

Will law schools invest in bar prep courses or change their curriculum?

Assuredly yes. But that’s not the right question [ed.: who’s writing these questions!]. Instead, will those actually help any students? The answer, in all likelihood, is no.

First, schools likely have been implementing bar passage improvement programs for several years, given that bar passage rates have been in decline for several years. But the sad evidence is that, so far, they don’t appear to be improving bar passage results. Worse, a recent California bar study specifically examining programs at several law schools found no relationship between bar prep programs at law schools and bar passage results.

Schools might be tempted to tweak their curriculum—require more bar-related courses or expand coverage of content in the first year—but that, too, seems unhelpful. There’s no evidence that performance in a given substantive law school course relates to performance on that topic on the bar exam.

Undoubtedly, the response for many law schools will be, “Don’t just stand there, do something!” But it remains highly contested, in my view, about whether the “do something” will lead to improvement.

All in all, is the new standard a good thing?

Well, maybe? (A great answer of an academic, I know.) Tightening admissions and increasing academic dismissals certainly improve the likelihood that graduates ultimately pass the bar exam, which puts them in compliance with the standard. But it is only a likelihood—schools may not take risks on certain bands of students who might ultimately succeed even if their predictors don’t show it. Then again, if massive debt loads, an uncertain job market for marginal law school graduates, and still a high risk of failure are put into the equation, maybe we want more risk-averse decisionmaking at law schools.

That said, I continue to wonder about why the ABA is accrediting law schools as it increasingly obsesses over bar passage rates. Barry Currier has written to defend that we ought to require a bar exam and that ABA law school accreditation standards should have a bar passage standard. But it’s not clear to me why bar passage is tied in most jurisdictions to attending an ABA-accredited school. And it strikes me that if the ABA is insisting that good law schools are (among other things) the ones where most of the graduates pass the bar exam, it’s not clear that ABA accreditation is doing much value-added except telling us what the bar exam is already telling us.

What’s the bottom line here?

Oh, I digress. In short, I think a few law schools will face intense pressure in the short-term future, and a few may close. Many others will consider some structural changes in admissions and retention practices (which should improve rates), and curricular and bar prep changes (which likely won’t improve rates), to the extent those schools can afford to do so. But I won’t expect anything too dire. While it’s safe to say that 30 or so law schools have something to worry about, a much smaller number are facing existential threats to their schools.