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How the decline of bar exam passage rates impacts law students

Samuel Chang

Samuel M. Chang, the outgoing 14th Circuit Governor for the ABA Law Student Division, spoke at an event titled “Declining Passage Rates on the California Bar Exam: Possible Explanations and Impacts,” an informational hearing of the California State Assembly Judiciary Committee on Feb. 14.

Chang spoke during a panel titled “Possible Impacts of the Decline in Bar Passage Rates Upon Consumers and Different Sectors of the Legal Community” – its subtitle was “How Might the Decline of Bar Exam Passage Rates Impact Law Students, Legal Aid Providers, Consumers and the Public Interest?”

Here is a video of his remarks and a transcript:

Good morning.

Thank you for inviting me to speak today. My name is Samuel Chang. I am a second-year law student, the student body president of UC Hastings, and a student director on the Korean American Bar Association of Northern California. I am also the 14th Circuit Governor and serve on the ABA Law Student Division Board of Governors, but I do not speak for or on behalf of the ABA or the Law Student Division. Here, I am testifying in my capacity as a California law student.

I come to shed some light on how the decline of bar exam passage rates impacts law students. I received comments and stories from many ABA law student members in California.

So, what’s important to law students? First, affordability of their education and second, subsequent employment after graduation. The low bar passage rate exacerbates both. Simply put: no bar, no job.

But this has an emotional impact too. Here’s some words students around California have used to describe the bar passage rate: Traumatizing. Demoralizing. Terrifying. Deflating. Devastating.

It is not simply a mere inconvenience to not pass the bar. The bar exam period is long and expensive. Right after a grueling three years in law school, another grueling three months of no pay, mounting debts, and continuous studying accompanies these students as they prepare for the bar exam. So, imagine, missing the threshold by 0.7% like one of the students. This student felt disheartened that despite taking a commercial bar prep program, they could not pass and start their legal career. Another student lost a job offer at the Public Defender because they failed the bar. Subsequently, that student could no longer afford to live in an apartment and moved back home.

1. California Students Are Better Than Their Out of State Counterparts

Yet, California students because of their low bar passage rate is not any worse than those from other jurisdictions. California students have always outperformed their out of state peers. In 2012, California students from ABA-approved law schools passed the California Bar 20% higher than those from out of state ABA-approved law schools. Last year, California students still passed 3.3% higher than those from out of state ABA-approved law schools. If the California bar passage rate is any indicator, the quality of California students is in fact higher than those of out of state students. Naturally, this frustrates many students.

2. Students Shift to Other Jurisdictions

This frustration has consequences. Students may choose to instead practice in a different jurisdiction simply because they have a greater chance to pass the bar there. The high financial and career risk has prompted students to reconsider being in California. This means that California may lose lawyers simply because of a score. Many law students have written that they love California, and they chose a California law school to practice here. But what’s the point, they write, if they cannot pass the bar? Such a shift means less lawyers for the growing population of California. Less lawyers to protect consumers. Less lawyers for the state. Less lawyers for legal aid. In having a higher threshold for bar passage, California stands to lose quality attorneys all because of the bar and stands to widened the so-called “justice gap”.

3. Low Bar Passage means Less Chance of Employment

Low bar passage rate means a greater chance of unemployment for another year. Not many law firms or organizations are willing to retain students who have failed the bar. No job means an inability to pay the loans.

The low bar passage rate does not just end job opportunities but it influences it. A school’s low bar passage rate skews an employer against the students and may prevent students from receiving a job offer simply because their school’s bar passage rate was low. The low bar passage rate by a school affects the reputation of that school and in turn all the graduates of that school. Even students would base in some manner the success of the school on bar passage. Simply put, a low bar passage erodes students’ and employers’ confidence in the school – irregardless of what that bar should mean. In turn, students feel that because of a low bar passage rate, they as students feel second rate. Even more so, it reflects poorly on all students. Students have stated that they feel that attorneys have become disheartened and disappointed with the quality of new attorneys simply on the basis of the low bar passage rate.

4. Low Bar Passage Means More Debt

Some students have expressed a lot of anxiety over “a larger black hole of debt.”

Multiple retakes of the California bar exam mean more law students have to add to their already burdensome debt by paying again the $830 bar examination fee. Not to mention that interest is beginning to accrue on their law school debts.

My analysis of the Standard 509 forms of all 21 ABA-accredited law schools found a higher number than the white paper’s. On average, a student, without any financial scholarship, would accrue $226,851.71 in tuition and living expenses. On average, living expenses amount to about 58.27% of what tuition is. However, if we were to take into account the 67% of students who receive some grants, the average would be $129,417.00 (assuming that all students receive the median grant of $22,363.29 for three years). But, add in the $830 bar examination fee ($677 if not using a laptop) each time one takes the test and another $2,000 or more for bar prep and a few more thousands for living costs during that time, that’s considerably more than the $148,167 average salary lawyers receive in California. But remember, that’s a salary for ALL lawyers. According to the National Association for Law Placement, an average salary for an entry level lawyer in a public interest or government entity ranges from $44,600 to $51,100. That means even if a public interest lawyer were to give up their entire salary, they would still not be able to pay off their law school loans for more than three years. Delaying a year to retake the bar only worsens the situation.

But that cost can be even higher – most law students still have outstanding undergraduate loans. Some students have placed their whole life on hold just to do law school. They worked hard to get jobs after graduation. But without the ability to pass the bar, they are left back in the place they started only with a considerable amount of debt.

But it’s not just that, a low bar passage rate feeds into the predatory bar prep industry. The fact that top bar passage companies charge upward of $3,995 without publishing their bar passage rates is concerning. Even when a bar prep company does, there is no guarantee that one would pass the bar – Themis, one of the three most popular bar prep companies, only had a 66% first time pass rate and 77% pass rate for those who completed 75% of the course. But what are students to do? Not take it? They take this financial gamble because (a) everyone around them seems to be doing it, (b) they are encouraged to do so, and (c) they would rather put in money to increase their possibility of passing the bar. But this is parasitic upon law students. Bar passage companies, not students, not the California public, benefit from a low bar passage rate.

5. Legal Education Changes

But as is, legal education also takes a hit from a low bar passage rate. Students become more worried about passing the bar then getting a job. Instead of taking clinics or legal work, they stay at school and take more bar courses. One student phrased it well that “the great irony is that to be a lawyer at all I have to be more unprepared for the actual job.”

Legal education was not made to teach to the bar but teach practical skills and experiences to be a lawyer. But the bar exam makes legal education all about being better test takers than better lawyers. The bar fails to test the competence of law students. One student wrote that “[t]he skills of a great lawyer cannot be measured by a written exam.” It is counter-intuitive to teach to pass the bar but not develop the skills to be an attorney. Students have made it clear that despite a diminishing bar passage rate, law schools must not throw the baby out with the bath water and should continue to train lawyers not just teach to the bar.

6. Reforming the Bar

I have heard that the bar is a bar of competence. But if it is of competence, I hope you ponder this point. If U.S. Senator Kamala Harris, former Dean of Stanford Law School Kathleen Sullivan, and two California Governors Jerry Brown and Pete Wilson could not pass on their first try but were widely successful as California’s attorney general, a top law school dean, and governors of our great state, what does that say of the bar? Indeed, a student pointed out that “a timed test where one is required to memorize rules in and pull them out of one’s head in the timed environment [is] something that no competent attorney would ever do when representing a client.” Another agreed stating that the “the practice of law is not shotgun decision-making or racehorse exams.”

The white paper makes it clear: a lower threshold on the bar exam means a higher bar pass rate. But a lower threshold, as one student puts it, also means less students putting their life on hold for another six months to retake the bar. Less students who are unable to pay back their loans. Less students who are unable to be lawyers.

A lower threshold on the bar exam would also be life changing. In response to failing the bar, a UC Hastings student committed suicide. So, I ask, could this student have been here today if the state bar had lowered its threshold? Possibly.

I leave you with this last quote: The UC Hastings Deans wrote a letter soon after learning about the suicide of the student, writing: “But that is not the only story we need to tell, nor to hear. We need to hear that how we score on an exam is not a measure of our potential as a lawyer, much less our worth as a person.”

In recent times, the public has realized the importance of lawyers. There are many good law students in California. There can also be just as many good lawyers. And that starts with changing the arbitrary standards of the bar examination. I urge you to take action.

Thank you.

Samuel Chang Samuel "Sammy" Chang, a rising 3L, is serving his second term as the student body president at University of California Hastings College of the Law in San Francisco. He is also the inaugural Director of Legal Education for the ABA Law Student Division and will sit in as the Law Student Representative on the ABA Council for the Section of Legal Education and Admissions to the Bar.