Moving the goalposts of the California bar exam

I’m a member of the State Bar of Cali­fornia out of neces­sity. It’s the only way to be licensed as a lawyer in our state. But the State Bar doesn’t actu­ally exist to serve lawyers. Rather, its main purpose is to “protect[] the public through licensing, regu­la­tion and disci­pline of attor­neys.”

In recent years, however, the Cali­fornia State Auditor has issued a series of increas­ingly crit­ical reports about the State Bar, depicting it as an orga­ni­za­tion teetering between incom­pe­tent and corrupt.* In partic­ular, a report from June 2015 concluded that the State Bar “has not consis­tently fulfilled its mission to protect the public from errant attor­neys”. (You had one job, etc.)

Against that back­drop, this hardly seems like an oppor­tune time for the State Bar to be trying to lower the passing score of the Cali­fornia bar exam, which is its primary tool for protecting the public against incom­pe­tent attor­neys.

But indeed they are.

I encourage Cali­for­nians—lawyers or not—to partic­i­pate in the State Bar’s call for public comments about its proposal to lower the passing score of the Cali­fornia bar exam. The dead­line is August 25. The comment form is here, and a summary of the find­ings so far is here.

In 2016, Cali­fornia’s bar-passage rate was 40%, the nation’s lowest. There­fore, our bar exam seems tough rela­tive to other states. But Cali­fornia has some­thing other states don’t: a large set of law schools marketing them­selves to lower-performing students, including 42 (!) schools not accred­ited by the ABA. Of these, 20 are accred­ited only by the State Bar. The other 22 are completely unac­cred­ited. Grad­u­ates of these non-ABA schools can’t take the bar exam in other states, so it’s Cali­fornia or bust.

Though mostly bust. For instance, the LA Times found that nearly 90% of students drop out of unac­cred­ited schools before grad­u­a­tion, never even making it to the bar exam. (Of course, they still end up with gigantic law-school loans, like any other student.) Those who do grad­uate and take the bar exam tend to do poorly: in 2016, the bar-passage rate for grad­u­ates of non-ABA schools was 14%, compared to 49% for grad­u­ates of ABA schools. (Stats here.)

The great reces­sion has reduced bar-passage rates at every law school. Law-school appli­ca­tions have dramat­i­cally declined since 2008. But the number of law school seats in Cali­fornia has not like­wise contracted. (With one notable excep­tion.) There­fore, every law school has had to reach deeper into the appli­cant pool to fill those seats.

Higher-ranked schools have been able to survive this deeper-dipping without demol­ishing their bar-passage rates, because their students were already pretty good. Lower-tier schools, however, have seen their bar-passage rates decline more substan­tially. So for them, lowering the passing score of the bar exam is a lot more conse­quen­tial—maybe even exis­ten­tial. (See p.10 of the State Bar report.)

Taking this in, one view might be “perhaps this is a sign that these schools aren’t really providing much benefit to students or the public.” Another view, appar­ently, is “perhaps this is a sign that we need to move the goal­posts.”

Let’s not. As the State Bar itself concedes, lowering the passing score “is likely to increase the risk of harm to the public” by admit­ting a new tier of less qual­i­fied attor­neys. Bad news for everyone, except writers of lawyer jokes.

* The State Bar even made an enemy of former Gov. Schwarzenegger, who memo­rably inscribed a coded message in a letter declining to approve their budget bill in 2009.