Good Idea To Lower Standards For Passing California Bar In The Name Of Diversity?

Posted on August 22, 2017 by Luke Ford

Ben Kurtz writes:

I recently saw a message from the California bar to its attorney members concerning the passing score standard for the bar exam. The goodthinkers in that state have been very concerned that the pass rate (that is, the fraction of test-takers who actually pass) has been going down substantially in recent years. Accordingly, they want to lower the standards for admission to the profession.

As lawyers say, res ipsa loquitur, so I’ll simply reproduce large sections of the message below:

Dear California Attorneys:

As you are probably aware, the bar exam pass rates in California have experienced a continuing trend of decline in recent years. In response to this decline, the State Bar initiated a series of studies to evaluate the bar exam, including its pass line (also known as cut score) and content of the exam. … [T]wo options were presented to the Committee of Bar Examiners for consideration and subsequently issued for comment: 1) keep the current cut score of 1440; 2) reduce it to 1414 as an interim cut score, pending the conclusion of the other studies being conducted.

If a cut score of 1414 were applied to the July 2016 bar exam, the pass rate would have increased from 43 to 47 percent. If the option of reducing the cut score to 1414 were adopted, it could also be applied to the July 2017 bar exam. The study findings and recommendations have been published to solicit public comment until August 25…

In addition to the public comment period that is currently underway, we are seeking additional feedback through this survey… In addition to your views about the cut score and other policy considerations, we are also seeking demographic and other background information to provide appropriate context for your responses. …

The referenced lawyer’s survey, by the way, reads as follows:

Standard Setting Study Regarding Bar Exam Cut Score
1. Select the option below that best represents your view about the cut score for the California bar exam:
Keep the current cut score of 1440
Lower the cut score to 1414
Lower the cut score further below the recommended option of 1414
Other:
2. The following statements are often considered relevant factors in determining an appropriate bar exam cut score. Please rate the importance you assign to each of the statements from 1 (not important at all) to 10 (very important).
a. Declining bar exam pass rates in California
b. The burden of student loan debt for law-school graduates unable to find gainful employment after failing the bar exam
c. The fact that the cut score in California is the second highest in the nation
d. Increasing diversity of attorneys from different backgrounds
e. Increasing access to legal services for underserved populations
f. Maintaining the integrity of the profession
g. Protecting the interest of the public from potentially unqualified attorneys

Please tell us a little bit about yourself.

3. What year were you admitted to the Bar?
4. Select the type of law school that you graduated from
5. How many times did you take the California bar exam before you passed?
Once
Twice
Three or More Times
6. Which of the following best describes your current employment status?
Solo Practice
Small to Medium Firm (<100 Attorneys) Large Firm (>=100 Attorneys)
Nonprofit
Government
Corporate In-house
Retired
Other
7. What is your gender identity?
Male
Female
Other
8. What is your race/ethnicity identity? (Select all that apply.)
American Indian or Alaska Native
Asian
Black or African American
Hispanic or Latino
Native Hawaiian or other Pacific Islander
White
Some other race
9. Select the county where you are currently employed (or where you were employed prior to retirement).

No doubt, those intrepid bar association investigators will find that preserving integrity and competency — what I had always thought law licensing was for — is a strong preference of Evil White Men, and therefore the last thing that the bar association of a progressive state of California should seek to uphold.

After all, those two values were literally the last two items on the list of considerations, sitting after — of course — the all-important, nearly religious value of “increasing diversity of attorneys from different backgrounds.”

Remember: Diversity is our strength. That’s why we have to lower our standards.

Comments at Steve Sailer:

* Unsurprisingly, the data are fairly well modeled with black performance being 1 SD below white performance (predicted black pass rate: 25%) and Hispanics being 0.5 SDs below whites (predicted Hispanic pass rate: 44%).

* Law schools are having trouble recruiting, so have lowered admissions standards to stay open. That, in turn means they grant diplomas to many more people who have trouble passing the bar, which in turn threatens their marketing and their accreditation.

They should have trouble recruiting. The ratio of working practitioners to professional school graduation cohorts is variable but clusters these days around 22.5. That for the legal profession is 15. Its difficult to find a profession of any size where that ratio is lower. (That ratio for divinity schools and seminaries is quite low – around 3.5 – but it’s quite normal among divinity students to have no intention of seeking out a position as a f/t clergyman).

The problem, really, is the bloat in law schools. What needs to happen to law faculties is what happened to Chrysler between 1979 and 1985: about 1/3 of the workforce needs to be cut. And, no, people with comfortable bourgeois jobs with a certain amount of cachet don’t want that to happen.

* Here’s a perspective from a Los Angeles judge on lowering the pass score (tl; dr: his experience is that the standards are already too low):

The California Bar already made the decision starting last month to cut the length of the exam by one day (from three days to two).

Part of the issue I think is that law schools have increasingly been accepting and graduating marginal candidates. For a few years at the depth of the recession, there was a glut of law school applications and so schools were marginally more selective (to the extent that they weren’t practicing affirmative action under one name or another). There’s been a sharp crash since, leading to closures (e.g., Whittier Law School), and, presumably, a fall in the caliber of the candidate pool.

One other background event that might be relevant as well is that California’s court system since the recession has been severely affected by budget cuts, leading to bureaucratic lassitude, significant delays in cases getting heard, and widespread adoption of poorly-documented and understood “local local” rules and policies in many counties and courthouses that nobody really knows how to navigate (and that can change from clerk to clerk). There actually are cases “rotting in the courts” as a result. That’s a budgeting and bureaucratic problem, not a problem caused by a shortage of (dumber) lawyers, but it can be blamed on the latter.

* Anybody who thinks we need to lower the bar exam standards should spend a Monday morning in the high grade misdemeanor arraignment hearing just to get a glimpse of how horrible and downright stupid some of these attorneys at the bottom of the barrel really are. Now imagine them with an even lower bar to practice law.

About Luke Ford

I've written five books (see Amazon.com). My work has been covered in the New York Times, the Los Angeles Times, and on 60 Minutes. I teach Alexander Technique in Beverly Hills (Alexander90210.com).
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