Photo by Richard Harrison (Flickr/Creative Commons)
Photo by Richard Harrison (Flickr/Creative Commons)

New Bar Passage Rates Could Set ABA Up for a Fight

Law schools face no shortage of challenges today, and the American Bar Association may have just created a new one.

On Monday, the ABA asked for comment on a proposed change to Standard 316, which sets the bar passage rates law schools must maintain to be accredited. Under the proposal, law schools would need to show a 75 percent bar passage rate within two years — rather than the current five-year standard.

The new proposals, which includes other changes, aren’t yet finalized. After the feedback period, the rule would still need to be approved by the Council of the ABA’s Section of Legal Education and Admissions, and then the ABA House of Delegates, which meets twice a year in February and August.

Benjamin Barton, who studies the legal profession at the University of Tennessee and writes for Big Law Business, said the proposed changes were “an aggressive, heartening move” by the ABA.

“My concern has been that the ABA wouldn’t have the spine to dis-accredit any schools because of antitrust concerns,” Barton said, explaining that changes to quantitative standards, like bar passage rates, leave the ABA more vulnerable to an argument that they’re simply looking at the numbers and choosing which schools to box out.

Barry Currier, managing director of the ABA’s legal education section, said the change is an attempt to improve and simplify the rule — presently, the rule governing bar admissions is over 700 words; the proposed rule is a single sentence — and not about putting the screws to struggling law schools.

“Some people say, ‘You’re not serious if you don’t set a standard that causes trouble for some schools.’ But the discussion should be about appropriate passage rates, not whether five or 50 schools would have trouble,” Currier said.

“Nobody’s in the business of trying to play Jack Welch and make sure you fire 10 percent of your people every year to make sure your organization’s better,” he added.

The change to rules could put new pressure on law schools to report on more of their students’ bar passage rates. Under current standards, schools must report on 70 percent of their graduates’ bar passage rates each year. The new rule does not name any new standards, but a supporting document filed with the rule change by ABA staff suggests schools should be reporting on “as many as possible” of their students.

Another proposed change could have a major affect on law schools located in states where bar passage rates have traditionally been lower than the national average, such as New York and California. Under current standards, schools can still gain accreditation even if they don’t meet the 75 percent bar passage rate as long as their bar passage rate is within 15 points of the statewide average. That loophole no longer exists.

Many of the schools that could suffer under tougher requirements have higher proportions of minority students, according to Brian Leiter, a professor at the University of Chicago Law School.

“It puts the ABA in a bit of a pickle,” he said. “They’re officially on record requiring law schools to meet certain expectations in terms of diversity. If the new rule penalizes diverse schools, they’re gonna hear about it.”

Leiter suggested that in response to the tougher requirements, some schools will turn their programs into “three-year bar review courses.”

“Those on the margin will simply adjust their curriculum,” he said. “And I bet bar passage rates will go up. You can teach a lot of people to pass a bar exam if you work on it for three years.”

Kyle McEntee, executive director and co-founder of Law School Transparency, an advocacy group for legal education reforms, said schools aren’t doing minority or any other students a favor if they give them a law degree but they can’t pass the bar and find a job.

Although McEntee has previously called for an 85 percent passage rate standard, and called a 75 percent rate “bare minimum,” he applauded the proposed change.

“The ABA is doing a good job of stepping up,” said McEntee. “They’re taking seriously their role as people who protect society at large. That’s role of an accreditor in the U.S.”

But he said he also expects significant pushback on the proposal.

“The fight will be during the notice and comment period,” said McEntee. “The question will be whether the Council has the stomach to go against a lot of people who are going to be really upset.”

For more legal resources, visit Bloomberg Law.

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