As you may know, the ABA voted to send the 301-6 proposal to the House of Delegates in LA this February. Despite the overwhelming opposition to the proposal, they are attempting to send the measure to the consent agenda. Please see the email below. We are about to engage in a very aggressive campaign against the ABA for these measures. See the message below forwarded by our National Chair Eddie L. Koen, Jr.
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The enrollment of African Americans and Mexican Americans are at an eleven year low. The proposed standard 301-6 will make the situtation worse by putting the accreditation of three of the five historically Black law schools in jeopardy and by indirectly encouraging law schools to raise admission standards which will have a disproportionately negative impact on people of color.
On Friday, January 4th, the Standards and Review Committee voted to send 301(6) with no substantive change to the Council on Legal Education. (See Appendix A) The Council is expected approve it without any significant change and to place it on the American Bar Association (ABA) consent calendar and for the House of Delegates to vote on it without debate.
ACTION REQUESTED
First, we should object to 301(6) being on the consent calendar because it will be voted on without debate. We want the interpretation debated in the House. To have it removed from the consent calendar and debated, we need a delegate to object. If you know someone who is a delegate to the ABA House of Delegate please educate them about this issue and ask them to object to 301(6) being on the consent calendar.
Second, we need many delegates to argue that the interpretation be sent back to Council requesting an interpretation that is multi-factor of which bar passage is just one and asking any interpretation that focuses on outcomes also include a method assessing quality in light of the schooll's mission as required by Department of Education regulation 34 CFR 602.16. Again educate the delegates from your state or organization about this issue and ask them argue on the floor to send Interpretation back to the Council.
WHEN
IMMEDIATELY
The Council Meets on February 9th-10th and it is expected to be voted on Feb 11th at ABA House of Delegates.
WHY
The interpretation if recommended would draw a bright-line rule on bar passage. A school must have a bar passage rate that is 75% of the combined jurisdictions or within 15 points of its state bar passage rate. The interpretation is not being presented as a consumer protection but as a measure of quality.
If implemented 301(6) will have a significant dexterous impact on racial and ethnic diversity. Initially, at least 3 of the five Historically Black Law Schools will be impacted and of the other schools many have a history providing access to the profession for minorities and students from poor background. In the short run, schools may attempt to change their admission standards hoping to increase their bar passage by getting better standardized test-takers. Any increase in admission standards will have a disproportionately negative impact on Blacks, Hispanics and Native Americans.
However, even without reference to the impact on diversity, bar passage alone is an inappropriate standard for the measure of quality of a school. Law schools unlike other professional schools pride itself on NOT teaching to the bar. Law schools, unlike other professional schools, do not test to the bar; that is they do use the same testing format as the bar. Law schools unlike other professional schools do not provide frequent testing or feedback. The Bar examination tests very limited skills and law schools have a responsibility to teach a broad range of skills. Finally, the bar examination has not been proven to have any significant relationship to the competent practice of law. In fact, it does not test the student on the specific law of the state but on a sort of generic common law. This is particularly true of the multistate bar examination and multistate performance examination which many states require. Thus, even after passing the bar a lawyer would still need to learn the law of the state. Finally, states bar passage goal is changed based on reasons external to the law schools: the desire to limit or increase entry to the bar. Schools in states with a number of law schools or where people want to move to tend to have on average lower bar passage rates than states which have few schools or people do not desire to move to.
Second, even if one accepts the bar examination as the sole measure of quality there are many external reasons why law students may not pass the bar that are related to the quality of the school. Some students have poor standardized test-taking skills as evidenced by their lower than average LSAT and law school does nothing to change that. Some students suffer from stereotype threat and law school does nothing to change that. Finally, many students have to work during the bar review and consequently have insufficient time to prepare for the exam. In fact, numerous studies have document that there are many factors related to bar passage.
Third, as measure of quality, Interpretation 301(6) is both over-inclusive and under-inclusive. It is over-inclusive because it does not recognize that schools should be providing added value to its students through the quality of the education. Some schools that have low LSAT may be adding significant added value given the predicted performance of the students they admit. For instance, five of seven schools' who failed both prongs of interpretation 301(6) lower LSAT score below 150. Thus, if the school's bar passage rate is 60% but it's predicted bar passage rate is 30%; it should not be argued that the quality of the education is substandard. On the other hand, Interpretation 301(6) is underinclusive. It does not catch schools that are providing little added value. No school whose lower LSAT was 160 or above failed either of the two prongs. These schools are not necessarily providing added value. For instance, if a school's bar passage rate is 89% but it's predicted bar passage rate is 95% than the school is adding little added value to the student it is admitting and it can be argued that its education is substandard. What bar passage rates tell us is that schools who admit students who do poorly on standardized test will do poorly on the bar exam and vice versa.
Another problem with a school's bar passage rate is that it is significantly dependent on the school's geographic location. There is no national standard for bar passage and states have wildly different approaches. For instance, Wisconsin schools would be completely exempted from interpretation 301(6) because they have a diploma admission to the bar based on graduation from a Wisconsin law school. That is, graduates of Wisconsin schools do not have to take the bar. On the other hand schools that are located in states where the state has set a relatively low bar passage rate are much more likely to have difficulty meeting the standard. For instance, using 2007 data, of the seven schools that failed both first and second prong of the interpretation only 1 was located in a state with an overall bar passage rate under 80%, although 3 of the seven schools were located in California which has a state average of 60%. Similarly, schools are affected based on whether their students choose to practice in a state with a low average bar passage rate or a high bar passage. The standard implies that students who take the bar in California (62%, New Hampshire (64%); Nevada (64%); West Virginia (68%) and Louisiana (70%) come from poorer quality schools than students who take the bar in New Mexico (91%); Montana (91%), Oklahoma (90%), North Dakota (90%) or Utah (90%).
Similarly, schools that are located in states with only 1 or two schools are not at risk. In fact, (2007) of the seven schools that failed to meet both the first and second prong none were in jurisdictions where the school was the only school where the majority of a schools test-taker(?). Based on the proposed interpretation, a person would have to believe that students from Louisiana (4 schools), Maryland (5 schools), Florida (9 schools), Texas (9 schools) and California (19 schools) come from some poorer quality schools than students from Idaho, Maine, Montana, North Dakota, New Mexico, South Carolina and South Dakota since none of the schools in these states failed to meet the interpretation and all the states have only 1 law school.
Finally, the other problem with the bar passage as a measure of quality is that the examination is scored by norm-reference rather than criterion reference. Criterion reference is based on setting criteria, articulating the criteria and then testing the criteria - everyone who meets the criteria passes. Norm-reference is based on grading based on the performance of others. So if the norm is 75% bar passage rate, than whether or not a particular individual passes depends not on their performance but on whether 26% of the test-takers performed better. It is impossible to have100% bar passage rate under norm-reference. Thus, it is impossible for both students and schools to know what they need to do to assure a certain bar passage rate on a consistent basis.
CONCLUSION
What is needed is multi-facet outcome analysis that reflects the broad range of knowledge and skills needed to be a beginning lawyer. If Bar passage is to be a factor it should be only one factor. The Council is positioning itself to adopt and forward to the ABA House of Delegate and educationally unsound policy. The House of Delegates should defeat the proposal with specific instructions to adopt a multi-factor outcomes approach which considers a school's mission. Such an approach will be entirely consistent with DOE regulation which requires quality to be measure in light of the school's mission and which recognizes that state licensing is but one of the factors to be considered.
Vernellia Randall
Professor of LawUniversity of Dayton
Board Chair and Founder
The JD Project
http://thejdproject.org/
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