ABA Punts on Tighter Bar-Pass Rates for Law Schools

Law schools won’t have to comply with stricter bar-passage requirements – at least for the time being – after the ABA yet again delayed action on the issue.

In February, the Section of Legal Education and Admissions deferred action on a proposal that would require accredited schools to show that three-quarters of its law grads pass the bar exam within 24 months after graduating.

This is the third time the ABA has either voted down or punted on the long-simmering and highly-controversial issue.

“The proposal, which has been under consideration for years, would require 75 percent of a school’s bar takers to pass within two years of graduation, rather than the five years allowed under the current Standard 316,” writes Lyle Moran in the ABA Journal.

In addition to shortening the time period for 75 percent compliance, the revisions to Standard 316 would:

• Eliminate the option for schools to comply if their first-time bar pass rates are within 15 percentage points of the average in their jurisdiction; and

• Require schools to make their “best effort” to report the bar results of all graduates, rather than for only 70 percent of a graduating class.

Supporters of the proposal say it would make law schools more accountable while providing consumer protection for prospective students.

Opponents fear a stricter standard would adversely impact diversity in the profession and would hurt schools in states like California that have high cut scores on their bar exams.

A History of Inaction

ABA-approved law schools are overwhelmingly performing better than the revised standard, says Barry Currier, the ABA’s managing director of accreditation and legal education. Graduates from accredited schools pass the bar examination at a rate approaching 90 percent in the two years following their graduation.

“For 2015 law graduates, 19 of 202 ABA-accredited schools did not have bar-pass rates in compliance with the proposed new standard,” reports the ABA Journal. “No school is known to have been out of compliance with the current version of Standard 316.”

Even so, the ABA House of Delegates has rejected the new standard twice before, primarily because of concerns over diversity.

“The notion that the council doesn’t care about diversity in the profession is just not the case,” says Maureen A. O’Rourke, the council’s immediate past chair and former dean at Boston University School of Law. “But perception matters, and there seems to be that perception.”

O’Rourke suggested council members and ABA staff draft a guidance memo detailing how the ABA would enforce a revised Standard 316 prior to the council’s May 16-18 meeting in Chicago. She said the memo “should make clear that no school could use efforts to comply with the bar passage standard as an excuse not to enroll a diverse class.”

Increased Scrutiny of Non-JD Programs

The ABA council also voted to look into regulating non-JD programs, which have proliferated in recent years. There are 750 non-JD programs at ABA law schools, and more than 18,000 students enrolled in them. That constitutes more than 14 percent of all students at those schools.

Currently, the ABA only reviews whether the programs “negatively interfere” with a school’s JD program. If there is no negative interference, the ABA “acquiesces” in allowing a law school to launch non-JD offerings.

“There is absolutely zero review of the quality of those programs,” Currier told the council. “To an extent, we are one bad news story away from this being another real problem for legal education.”

What do you say? Should law schools have stricter standards for reporting bar-passage rates?