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HIGH PERFORMERS BUT LOW PASS RATE by Mitchel L. Winick, President and Dean, Monterey College of Law
Great news! California bar examinees were once again among the highest performers in the nation on the July 2019 bar exam. According to last month’s released results, California examinees scored 17 points higher on the Multistate Bar Examination than the national mean (1428 v. 1411 scaled points). In MBE terms, this is a very significant difference and also predicts that these examinees performed better on their statetopic essays and performance tests because these scores commonly correlate. These exam results unquestionably reflect the high quality of legal education and preparation of California bar examinees. But something is seriously wrong! Only 50.1% of these high performing examinees passed the California bar exam. Meanwhile, lower scoring examinees passed at a 20% higher pass rate in many other major jurisdictions. This dramatic difference results from California using an artificially high minimum passing score (“cut score”) when compared with every other major jurisdiction. To put this in context, California’s cut score of 1440 is significantly higher than the national mean of 1350. Furthermore, every other U.S. jurisdiction except Delaware has adopted cut scores between 1290 and 1390. The five most comparable large jurisdictions, including New York, use passing scores of 1330 to 1360. Only California sits as an outlier using 1440. RES IPSA LOQUITUR
Why the difference in scores? Each jurisdiction has the authority to set a passing score that is intended to define “the minimum competency for the first-year practice of law” in their state. A common argument heard in California is that its high cut score ensures higher quality lawyers. However, the problem with this argument is that there is no evidence that bar exam scores have any relationship to lawyering skills. Furthermore, no evidence exists that states with lower cut scores have less competent lawyers or have higher incidents of malpractice or ethical violations. In fact, despite its artificially high cut score, California has one of the highest incident rates of lawyer discipline in the country. Therefore, the only measurable result of using an artificially high cut score in California is the conversion of some of the highest performing scores in the nation into the lowest passing rate.
standardized licensing exam with an artificially high passing score effectively and fairly measures minimum competence across all categories of examinees.
How did this come to pass? The best evidence suggests that a passing score comparable to 1440 was established sometime between 1950 and 1955 by bar leaders of that era. Keep in mind that law students and bar examinees of the 1950’s were almost exclusively white males. In fact, Harvard law school did not admit women until 1950. However, since that time, the demographics of law students and bar examinees have changed significantly. In 2016, the majority of students enrolled in ABA law schools were women and in 2018 the majority of examinees sitting for the July California bar exam were nonwhite. This raises the question of whether the continued use of a
Why does all of this this matter? Fairness, inclusion, diversity, protection of the public, and access to justice should be important to all of us. From 2011 through the most recent July 2019 bar exam, an estimated 8,000 competent law school graduates who scored above the national mean standard of 1350—approximately 1,000 per year—were denied licensure in California. These law school graduates earned the grades in law school and on the bar exam that reflect a level of competency that qualifies them for licensure in 48 other jurisdictions.
State Bar statistics from the July 2018 bar exam indicate that if the national standard of 1350 had been applied in California, the passing rate of white examinees would have increased by approximately 43%. However, the passing rate of blacks would have increased by 125%, Hispanics by 68%, and Asians by 64%. This significant statistical differential by race/ethnicity for a mandatory state-sponsored licensing exam raises serious questions about the validity and fairness of the exam scoring. If diversity of the bench and bar is a priority, as it should be, we should all be questioning why California is using a scoring system that disproportionately bars competent minority candidates from the profession.
These are potential California lawyers who are unavailable
