How the 40% Bar Passage Rule Hurts the Less Fortunate

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As a graduate of the California State Bar Law Office Study Program [1. LOSP], I always get concerned when I see laws/regulations that make it harder for those less fortunate, or less gifted, from having an equal opportunity (note I did not say “equal outcome.”) So this new proposal has me taken aback.

What Exactly Is The Bar Exam?

The California State Bar examination is a test designed to check a law school, or Law Office Study Program graduate’s knowledge of basic, general law and ethics. The actual Exam is administered by the California State Bar, Committee of Bar Examiners. In order to practice law, the newly graduated lawyer must pass the Bar of his or her state, unless there is a reciprocal rule in place, of the lawyer can be waived into the Bar of that jurisdiction.

First, I wanted to point out that law schools don’t teach to the Bar Exam. Law schools teach general legal principles. Also, Socratic types of classroom discussions are the norm today. Sadly, these discussions do little to help a person pass the Bar Exam, in my opinion. This comment above is not to say the conversations and arguments are not helpful.

Law Schools Do Not Teach To The Bar?

Why do I think this? The answer is quite simple because I passed the First Year Law Student’s Exam before ever entering a law school classroom. I stayed on the Law Office Study Program even after UWLA waived me into law school. But when I was there, I could not understand why the essays weren’t structured more like Bar Exam questions.

I asked professors, “why aren’t you teaching us stuff on the Bar, or teaching us how to write essays like on the Bar.” I was met with the usual. “Law schools don’t teach to the Bar, that is what a review course like BARBRI is for” [3. What is BARBRI?].

So when I attended law school, here is what I found:

  • A large portion of the students was English as a second language and thus, could not get the LSAT scores or funds to get into a top tiered school.
  • Many of the students were single mothers.
  • Some students have already experienced litigators who, except for a Bar Card, could out practice and outmaneuver even the most experienced trial lawyers (I had second-chaired three jury trials as a “Certified Law Student” [4. Certified Law Student], and authored thousands of briefs and legal pleadings under several supervising attorneys.)

My findings were that these students were just as smart, if not more intelligent than kids at top-tiered schools, but did not have the time, money or resources (wealthy parents, etc.), to get into the “better schools.” So I dislike laws that require a law school to have a special bar passage rate. In my opinion, this will cause many law schools not to take on the risk of one of those less fortunate, such as ESL and single moms, discussed above.

The Federal Lawsuit.

The Southern California Institute of Law filed a federal lawsuit. The filing was over a rule requiring state-accredited law schools in the State of California to maintain a bar passage ratio of at least 40%. The lawsuit was filed against 22 sitting and former members of the Committee of Bar Examiners on February 4th. This case was filed in the U.S. District Court for the Central District of California.

The lawsuit claims that the newly adopted bar passage percentage and the authority of the committee in overseeing state-accredited law schools is unconstitutional. By taking this rule, the school alleges the committees violated its internal procedures and claimed the committee members have a vendetta.

Bar Passage Rate Remains Misplaced?

This new rule will help the top schools and shut out a lot of new potential admittees, based upon my finding. And the complaint by the school is a total of 42 pages detailing due-process and free-speech violations, while the focus is on the bar passing percentage rule.

The bar adopted this rule in December.  Also, this bar pass provision applies to a cumulative passage rate for five years. And it’s also retroactive. Before passing this rule, the committee debated setting bar passage rating requirement at all.

The Notice of Non-Compliance.

This new rule will mean that schools that do not meet the 40% pass rate the committee decided on this year will be receiving notices of noncompliance. The non-compliant schools under this rule will face probation and possible loss of state accreditation, by 2016. The committee had considered the bar passage ratio earlier. But minimum ratios were never set in any event.

Committee Chairman Sean McCoy stated in The California Bar Journal, the changes they made were to help the committee determine the quality of education provided at the state accredited schools and to make their expectations clear. The State Bar declined to comment. Out of the 18 accredited law schools in California, many of the administrators opposed the cumulative pass ratio for first-time bar exam takers. The rate was 11 percent for those repeating the bar exam.

Hurts The Poor And Disadvantaged?

Dean Stanislaus Pulle of the California Institute only said in a comment that “We live in a nation of laws.” The law school claimed the compliance rule is unfair. In that case, Santa Barbara and Ventura, California offer part-time night programs. So many students remain older, of modest financial means and working parents.

So they would possibly lack the access to expensive prep courses. The result of this rule would mean the school would need to alter the curriculum. Instead, the suit alleges they would need to focus on bar exam preparation. It also says they need a stricter admission policy to be compliant.

  • The lawsuit says the new rule does not take into account the nature of the student body, the quality of the academic program, the excellence of the faculty and their effort to ensure the chances of success on the bar exam. The new standard fails to factor in the mission of the school and other factors considered in the re-accreditation process.

Is Retro Active Fair?

The school alleged it could suffer since it didn’t know it would have to meet the percentage in advance. Also, they claim the 40% ratio arbitrarily selected. Plus, no evidence exists that the bar passage rate has anything to do with the quality of the school’s education program.

The school says the legislative and executive branches, should be the regulators on accreditation standards. The school claims it is unfair to let a panel that functions on behalf of the California Supreme Court decide the fate of law schools. So the school challenged the committee’s regulatory authority.

The lawsuit claims the legislature provided no literature in the policy guidelines. Nor did the policymakers provide directions for implementing the new policies. The suit said the defendants acted without legal authority. Hence, their actions are a violation of state constitutional prohibitions. After all, it is unlawful to allow judicial and quasi-judicial rules when there exists a legislative method.

The suit claims that they were trying to get rid of Pulle. Numerous individuals with the committee have worked to prevent the ability to secure a curriculum waiver. The committee attempted to get rid of Pulle. Pulle received his education in the United Kingdom. So they introduced a mandate that only U.S. trained lawyers can serve as law school deans.

The faculty of law requested an injunction in the enforcement of the bar passage rule.  And they are asking for damages. What do you think? Why not just make law schools into a BARBRI course and get a 99% pass rate? Sound off. Is this a fair decision?

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