High-level implications: California Supreme Court reduces bar exam cut score from 144 to 139

Whew! A long time coming with a lot of implications about the ever-present debate about the “right” cut score. Here’s a few (ed.: hardly!) thoughts that come to mind.

First, California had the second-highest cut score (144), behind Delaware’s 145. (Even accounting for non-scaled score jurisdictions, it’s still probably the second toughest bar in the country). Lowering it 139 puts it behind Alaska (140) and Virginia (140)… and that’s it. So… from the second-toughest to the fourth-toughest.

California has basically permanently had a cut score of 144—it’s modified its scoring over the year, but this has been approximately the same over iterations of the test. Which is to say, lowering to 139 is a big change after several decades! (And I should add, still higher than the range of 133 to 136 proposed by many of California’s law deans in 2017.)

A recent standard-setting study suggested the cut score should remain roughly the same, consistent with historical studies in California, but it left open the possibility of a range of possible scores within an acceptable range. At the lower end, approximately two standard errors below the median recommended cut score of 143.9 (i.e., almost the same as the 144 existing cut score!) from the standard setting study, was a cut score of 139, consistent with a proposal from the state bar. This is the figure the California Supreme Court adopted.

So this 139 is not out of nowhere—it’s consistent within the range (admittedly, at the bottom of the range!) of options from the 2017 study. And it’s possible that score could change as the bar continues to examine the cut score in the future—but this will be a “permanent” change (i.e., not for this administration of the bar, like Oregon). I suppose one could chalk this up to a coronavirus-related change, but it is far more than that.

Second, it’s worth noting that despite being a relatively high cut score, California test-takers are typically more able than most test-takers, and the reduction will translate into significantly more attorneys. On the July 2018 bar exam, for instance, the mean scaled score was 142.8 compared to the national average of 141.1. Given that scores tend to follow a bell curve, this reduction in the cut score will sweep in a significant number of passers. For instance, a simulated cut score for the July 2016 bar exam of 139 increased the overall pass rate from 43.3% to 52.1%, with almost 800 new passers (many of these repeaters). It would also yield a 40% increase in the Black passing rate, 26.1% increase in the Hispanic passing rate, a 23.5% increase in the Asian passing rate, and 17.6% increase in the White passing rate.

Third, all else being equal, we would expect this particular cohort of attorneys admitted to the California bar (i.e., admitted with a score of between 139 and 143.9) to have an ultimate career attorney discipline rate of around 10% or so. All else being equal. It might be there won’t be the resources to discipline so many new attorneys (unless there’s increased funding). And California is also simultaneously (and rightly!) looking at proposals to improve concerns about attorney discipline. We’ll see if this affect ultimate career discipline rates.

This isn’t to say lowering the cut score is the wrong choice—it’s just to say that with any choice there will be tradeoffs. 90% of those attorneys won’t be disciplined over the course of their career, for instance (and one could ask whether discipline rates are the best or only measure of attorney competence, or whether discipline captures all harm to the public). And maybe better surveillance will minimize the risk to the public. Time will tell. (Sadly, it appears California hasn’t yet investigated with precision the relationship between bar exam scores and discipline—maybe it will now.)

Fourth, I can’t help but wonder if the reduction comes at a time as California has been losing ABA-accredited law schools at a sharp rate. The collapse in bar passage scores has particularly hit California schools. California has lost three ABA-accredited law schools in three years: Whittier in 2017, followed by La Verne and Thomas Jefferson, both of which became California-accredited schools in recent months. California nearly lost a fourth ABA-accredited school as Western State found a last-minute institution that saved it. I wondered back in 2016 if California would move in this direction to save schools. Maybe it’s a reason. I admit, it’s not in the letter and likely would never be publicly identified. But it’s certainly something that will help the remaining law schools.

Fifth, what will this mean for California law schools? To shamelessly borrow from an earlier post speculating on what would happen if the cut score were lowered to 139:

At least some law schools will admit larger classes. To the extent law schools were reluctant to admit larger classes because of concerns about bar passage rates, those schools will be more inclined to admit larger student bodies. Of course, there are still other reasons that schools may not increase their class sizes, or at least not substantially—they are concerned about their LSAT and UGPA medians for USNWR rankings purposes, they may be worried about finding meaningful legal employment for a larger number of graduates, and so on. But, at least one barrier in the admissions calculus has been partially removed.

Higher-ranked law schools may begin admitting more students that recently historically matriculated to lower-ranked law schools. That is, a new kind of competition may begin. In light of the thought mentioned above, it may not simply be that schools admit larger classes; they may be grabbing applicants who would have attended lower-ranked schools. This would exert downward pressure on lower-ranked schools in the event that competition for their prospective students increased.

Higher-ranked law schools may see improved racial diversity profiles among incoming classes, potentially at the expense of lower-ranked schools. This is good news for highly-ranked schools and students from racially diverse backgrounds. The lower score will tend to benefit racial minorities, as the data has shown that minorities fail the bar at higher rates. So highly-ranked schools can admit more diverse student bodies with greater confidence of their success. Of course, this will exert downward pressure on lower-ranked schools, who may see their diversity applicant pools dwindle or face pools of applicants with worse predictors than in past years.

Law schools will experience more price sensitivity from prospective law students. That is, the value of the law degree should decline in California, as the volume of attorneys increases and the price for lawyers drops. That should, in turn, make law students more skeptical of the existing value proposition of a law degree. Law schools that have relied on high tuition prices have benefited from the high bar exam cut score, because opportunities for attorneys have been relatively scarce; the drop in cut score will dilute the value of the degree and perhaps require some cost-cutting at law schools. This is not to say that an artificial constriction on the supply of lawyers is a good thing because it props up costs (in my personal view, I think it's quite a bad thing); but, it is to say that lowering the score will have the effect of making cost-sensitivity an increasing possibility.

California-accredited law schools will have opportunities to thrive. San Joaquin, for instance, would have a projected bar pass rate of 50% in 2017 if the cut score were lowered from 144 to 139. Lincoln Sacramento would have a projected bar pass rate of 47%. These exceed some ABA-accredited schools and start to look quite attractive to prospective law students. That’s particularly true given the tuition at these institutions, which is about half the typical ABA-accredited law school.

Negative impact in USNWR for elite schools, and positive impact in USNWR for more marginal schools. This category may not be immediately obvious to observers considering bar exam pass rates. That is, some might ask, wouldn't higher bar exam passing rates improve a school's USNWR profile? Not necessarily--particularly not if the overall passing rate increases.

USNWR measures bar pass rate not in absolute terms but in relative terms--the margin between a school's first-time passing rate in a jurisdiction and that jurisdiction's overall pass rates. If School A has a passing rate of 90% and School B 75%, showing some gap that's only part of the story: School A had a 90% rate in a jurisdiction with an overall rate of 60%, which means it actually did quite well; but School B had a 75% rate in a jurisdiction with an overall rate of 80%, which means it actually did poorly. USNWR measures that relative performance.

So if School A sees its passing rate increase to 93%, but the jurisdiction's overall passing rate increases to 85%, that's bad for School A in USNWR terms--its ability to outshine others in the jurisdiction has dwindled. In a state as large as California and with such a relatively low first-time overall passing rate, this gives elite schools an opportunity to shine.

Stanford, for instance, boasted a 91% first-time bar passage rate in a jurisdiction with a 56.3% first-time pass rate in July 2017, a 1.62 ratio. If the bar pass cut score is dropped to 139, the bar projects a first-time pass rate of 64.5%. Even if its pass rate increases to a projected 96%, its ratio drops to 1.49, a 0.12-point drop. The same holds true for institutions like USC (-0.08), UCLA (-0.03), and Berkeley (-0.06). These are just one (very small!) factor in the USNWR ratings, and these figures are ultimately normalized and compared with other institutions nationally, but it will marginally hurt each of these schools as an institution in the rankings--even though it might benefit a (relatively) small cohort of graduates from these institutions each year taking the bar exam.

In contrast, schools that have had below-average bar exam performance would see a significant increase—some of them in my projections moving up 0.2 points in their ratios or even more. If the school is in the unranked tier, it might help get the school into the rankings; if they are ranked lower, it might help them move up the rankings, an added benefit to their graduates passing the bar at higher rates. And it might help increase the employment rates of these schools.

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In short, this is a huge relief to many test-takers, and in particular to many repeaters who were close on a previous administration. It should result in thousands of new attorneys entering California in short order. The effects? Well, good for law schools in the short term, and good for recent graduates. For everything else, we’ll have to wait and see.