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High cut scores: A bar to the bar?

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. Read the full transcript of his remarks here.

Are the cutoffs for passing the bar too high in some states?

The California Supreme Court will soon answer that question. It’s expecting a report this fall on the validity of the California bar as well as deliberating whether to lower the California cut score, which is the second-highest in the country. The New York Times recently reported that with these new rule changes that authorize the California Supreme Court to set the cut score, a lowered cut score, if implemented, would be retroactively applied to the July 2017 administration.

For most students, that’s good news. For others, it’s not. Some argue that California’s high bar passage cut score protects the public from unqualified lawyers. But there’s little to no evidence that higher bar passage cut scores lead to decreased rates of malpractice.

A flawed analysis

The sole study, from Pepperdine University, that linked lower bar passage scores and increased rates of malpractice is misleading. In particular, the study extrapolated bar exam success based on LSAT and school and didn’t have any access to actual bar scores.

But let’s say the study’s results are based on valid data. The results revealed that those who pass the California bar on their fi rst try had a discipline rate of 4.7 percent, while those who passed on their second or subsequent tries had a discipline rate of 9.1 percent. Based on that, this study hardly explains the lack of explosive incompetence in a state like Wisconsin, which doesn’t even have a bar exam.

Furthermore, the analysis is limited to those who passed the bar on the current high threshold since lawyers can’t get disciplined unless they’ve passed the bar. In the end, all of those who pass the bar will eventually add to the bar-passage rate, not lower it.

This study also doesn’t discuss whether the discipline rate would increase for California lawyers if the California cut score is lowered to that of New York’s. The proposal in California is to lower California’s bar passage cut score to that of other states, not to get rid of a bar passage threshold altogether.

Unjustifiable scoring

So why a high bar? When the state bar can tell the California Assembly Judiciary Committee only that “there is no good answer” for the high cut score, the bar is in danger of barring qualified lawyers. Barring without purpose is objectionable.

Consider this further, then. Last November, the ABA Journal reported a slight increase in bar scores nationally. Even with that slight increase, California still suffered a drop in its bar passage in the July 2016 administration despite the fact that those taking the bar did better on the multistate bar exam than their counterparts.

Does this mean that a state with a lower cut score like New York is more likely to pass those who are less fit to be lawyers because of its lower cut score? In other words, there were 1,789 test takers who could have passed the California bar in July 2016 if the New York bar passage cut threshold was applied. Are they not fit to practice in California but perfectly fit to practice in New York?

Diversity takes a hit

The bar as a whole suffers as a proper indicator of being a good lawyer. A good lawyer has qualities that can’t be measured numerically on a multiple choice exam. As such, diversity suffers from a higher cut score.

When ABA Standard 316, which sought to simplify bar passage success to a flat 75 percent for all schools, was proposed, speakers noted that a significant number of those who fail the bar exam are minorities. One asserted that minorities “begin the race of academic success 50 yards back.”

The ABA Council for Racial and Ethnic Diversity in the Educational Pipeline pointed out that just in the July 2015 administration of the California bar, 71.8 percent of whites passed, while only 53.4 percent of blacks, 61.3 percent of Hispanics, and 65.9 percent of Asians passed.

Furthermore, it’s law schools with more diverse student bodies that have seen more of their students not pass the bar. The National Black Law Association noted that of the 64 schools that had a bar passage below 75 percent, more than 20 of them have student bodies that are more than 30 percent diverse. Even the Congressional Black Caucus wrote to the ABA noting that such a standard would block “meaningful access to justice” and “undermine current efforts to increase diversity.”

The bar, rather than just being a bar to protect consumers, has been a bar to diversifying the legal profession. But by lowering the bar, more minorities can be accepted into the legal community.

In a country that has prided itself on being a melting pot, and in a country that’s in great need of seeing all sides, a diverse legal community would contribute to better understanding and access for all.

Certainly, there’s more to do in diversifying the legal profession than lowering the bar threshold in California. But it’s one step, nonetheless.

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.