Bar Pass Standards and the Wiggle Room Problem

The ABA Section on Legal Education and Admissions to the Bar has proposed changing the bar passage standard used to evaluate law schools for accreditation purposes.

Under the proposal (PDF), a law school would have to show that at least 75 percent of its graduates who took a bar exam within two years of their graduation passed.

The proposal, if adopted, would eliminate altogether the first-time bar passage test contained in the current standard (PDF), which a law school can meet by showing that its first-time bar passage rate is no more than 15 points below the average first-time bar passage rate for ABA-approved schools in states where its graduates took the exam.

On one hand, this removes something of a loophole - if enough law students in a state sucked, all of the crappy law schools that produced the suckage would still be easily in compliance because they were all clustered within 15 points of the average that they collectively jacked up.  It became a true feat to one of the few schools to land in hot water for having low bar passage rates.

While the new standard is somewhat admirable in that they're holding law schools to an absolute standard rather than one that allows them all to sink simultaneously without penalty, the standard still fails completely to  help students and ensure that American law schools are actually viable, worthwhile institutions.

First, the measure is phrased not on a per-test basis, but on a per-student basis.  In other words, a student who fails three bar exams in a row and passes on the fourth try counts as one plus and no negatives at the end of a two-year period.  The rationale for this is explained in the proposal:

While first-time pass rate is important for consumers and is (and should continue to be) disclosed under Standard 509, the Committee believes that, for the purposes of accreditation, an ultimate pass rate is the more appropriate measure of whether a school is operating a sound program of legal education [so if they have to take a year and a half to teach themselves everything, the school is doing well?  -ed], and it is not subject to the idiosyncrasies [? - ed] that can be found with a reliance on the pass rate of first-time takers. 
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It should be understood that the proposal makes no attempt to place a limit on the number of times that an individual may sit for a bar exam. 

In other words, the ABA may soon not care if a law school's entire graduating class fails the bar on the first try for accreditation purposes.

You're basically going to see schools like the Infilaw units put students on one of two tracks:  1) those who they think can pass a bar, which will mean pushing them to take the bar four times after which the student becomes persona non grata; and 2) students who they're going to pay to hold on taking a bar exam for at least two years.

Because that's the other problem with the standard:  it's expressly limited to students who "choose" to take a bar exam.  Just as evaluating a school only by its graduates who volunteer to submit employment information is a terrible way to evaluate the job market, only counting those who choose to take a bar exam is a poor metric of how the school at large is functioning.  It rests on the exploitable assumption that most law students will take a bar exam, that there is an unknowable minority who went to law school with no intention of being lawyers who will not take a bar exam, and that law schools will act in good faith to not disturb the balance.

The problem is that, behaviorally, we know law schools do act to manipulate post-graduation statistics to their advantage.  And yet, when these standards get drafted, inevitably the law schools are allowed to whittle the edges based on "unfair" arguments and mythological ideas about law school to preserve avenues for manipulation.  All regulatory efforts like this is accomplish to allow creative types to find new ways to lie.

Thinking about it further, why do we use the bar exam at all?  The problem, it seems, is that there's no truly standardized test in law school.  It's an odd realization given the strong emphasis on the LSAT as a uniform pre-law comparison metric, the standardization of 1L curriculum and ubiquity of GPA in determining job fortunes, and the ever-standardization of the bar exam.

I'm normally not an advocate for adding standardized tests to an educational system, but given the realities of legal education, it would seem ideal to have some sort of standardized test taken during the 3L year.  Require every would-be graduate to take it, give them some carrot to ensure effort, and require that the school achieve above a certain result in the aggregate.  In the alternative, give some sort of uniform test after year one to ensure that "contracts" at Cooley is the same as "contracts" at Columbia.  In the former, students would gain a pre-bar evaluation of their study needs; in the latter, BigLaw employers would have a cross-school metric to use when reviewing candidates.

Of course, there's a strong institutional resistance to any such moves, not only because legal educators are intentionally stodgy and reluctant to believe in any alternative that might disrupt the status quo, but also because at least 175 presently accredited schools benefit handsomely by institutionalized wiggle room.

After all, regulatory capture is all about finding a way to comply with the letter of regulations before they even exist, spirit of the regulations be damned.  While on the surface, this new regulation has some positive changes, it unfortunately builds in evasion tactics to ensure that all but the most piddling law schools are going to be in compliance for a long time to come, regardless of what warm bodies are still enrolling with those succulent tuition checks.