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Are Law Schools with Low Bar Pass Rates at Risk of Closing?

May 12, 2017, 9:10 PM

The University of La Verne College of Law enrolls over 100 students each year, and if past history is any indication, only slightly more than half, 54 percent, will likely pass the bar on their first try after graduation.

Should that affect whether it stays open?

The disconnect between a school’s low bar passage rate, relative to other schools in the country, and its ability to draw applicants raises a question that’s been looming for legal education regulators: Is the bar passage rate the best way to measure whether a law school is adequately preparing its students to become lawyers?

On one side, there are voices urging the ABA to raise the standard of graduates who must pass the bar exam on their first attempt. They say the high cost of a legal education means schools owe it to their students to guarantee a certain level of success and chance of a career in the law.

“When law schools admit students, they are making at least an implicit representation to these people that they are going to be or at least quite likely be eligible to practice law,” said Paul Campos, a professor at Colorado State University who studies legal education. “I do think the ABA ought to be more aggressive in forcing schools to be more explicit about risks associated with not becoming eligible to become an attorney.”

Others argue the ABA’s standards would limit diversity in the legal profession by disproportionately forcing the closure of law schools that serve historically underrepresented populations. They claim a focus on bar passage rates does not adequately capture their success or account for the role they play in their communities.

La Verne’s Dean Gilbert Holmes said critics such as Campos get it wrong: The bar passage rate measured by the ABA only looks at first-time scores. If a student fails but then retakes the bar and passes, that pass is not counted. Holmes claimed that over three years, a much higher percentage of his students -- from 83 to 92 percent depending on the year -- pass the bar.

Holmes said his school is in good health: Enrollment has increased for four straight years, and applications rose 25 percent this year.

La Verne, which is located east of Los Angeles in the Inland Empire region, draws 80 percent of its students from within 50 miles and is the only ABAaccredited law school in the area, according to Holmes.

“We’re a university with a mission, a mission to serve this region,” said Holmes. “Having a law school is part of that mission”

James Robb, associate Dean of Thomas M. Cooley Law School in Lansing, Michigan, which has a 51.9 percent bar passage rate, also argued that the ABA should look at bar passage rates of graduates over a longer time period -- claiming 92 percent of his graduates eventually pass the bar.

“We have an access mission with a student body that is 41 percent minority, many of whom have not had the advantages of students accepted only at the more prestigious schools,” Robb said, adding, “We sometimes admit some students that other schools do not. But we do a very good job of teaching them to be outstanding lawyers.”

Both Robb and Holmes said the ABA fails to capture the success of his school by only measuring first-time passage rates, rather than the number of students who pass the bar over a longer time period.

Nonetheless, the ABA is not considering measuring bar passage rates over a longer term. Rather, it recently considered tightening its bar pass standards for school accreditation.

Currently, a law school must pass one of two tests: 1) a 75 percent ultimate bar passage within five years or 2) first-time bar passage rates of no more than 15 percent lower than the rates in the school’s jurisdiction. The proposed standard would have eliminated the second test and require schools to achieve a 75 percent pass rate within two years.

The measure was initially passed by the ABA Council but voted down by the ABA’s House of Delegates in February; the Council plans to revisit the matter when it next meets in June, according to Barry Currier, the ABA’s managing director of accreditation and legal education.

“There are options, but I do not believe that one of them is to stand pat with the current standard,” said Currier.

Some schools, including La Verne and WMU-Cooley, faced a decline in enrollment after the financial crisis, according to the ABA. Though enrollment has started to recover at these schools, the LSAT scores of students admitted to bottom-tier law schools has dropped, according to the ABA stats.

In deciding to review its bar passage rate standards, the ABA has cited a need to protect law students, who are often saddled with significant debt, from unrealistic expectations that they will be able to pass the bar.

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Brian Tamanaha, in a video for Bloomberg Law, about his book,Failing Law Schools

The ABA already has started asking underperforming law schools to disclose more about the impact of their bar passage rates on student success.

In a recent censure letter to Valparaiso University Law School and probationary letters sent to Arizona Summit and Charlotte School of Law (both owned by for-profit entity InfiLaw), the ABA instructed the schools to notify their students of the school’s bar pass rates by class quartile and to let students know which quartile they fall into.

“The student qualifications of entering classes has declined to the point where students have [LSAT scores with] medians and bottom quartiles in the low 140s and GPAs below 3.0,” said Brian Z. Tamanaha, professor at Washington School of Law and author of Failing Law Schools, of underperforming law schools in general.

Without strict ABA standards, Tamanaha said law schools run the risk of “letting in virtually everyone and claiming opportunity but understanding that many won’t make it.”

He and Campos, among others, believe other law schools will soon follow in Whittier’s path and stop accepting new students, though many of them stress that the factors that cause a law school to close are myriad, complicated and often difficult to discern from the outside.

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Jerome Organ talks to Bloomberg Law in 2011 about law school transparency.

Jerome M. Organ, professor at the University of St. Thomas School of Law, has compared the legal education market to the dental education market, which contracted in the mid-1980s. The dental schools that closed were not failing institutions, but the universities of which they were part decided to repurpose the investment into a different field, he said.

Organ predicted law school closures will likely stem from university politics, rather than low bar passage rates alone.

Whittier Law School suffered from a combination of low bar performance, and low enrollment, but university administrators’ decision to sell the parcel of land where the law school was housed also ignited a rift with faculty members.

“If a law school is no longer a point of pride, and is both a financial drain and something in the grand scheme that is eroding educational capital or reputational capital, that’s your recipe for closure,” Organ said.