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California Will Not Make Lower Bar Passage Threshold Retroactive

Aug. 10, 2020, 9:59 PM

California’s highest court on Monday rejected requests to apply retroactively a rule that lowers the passing score for the state’s bar exam by 50 points.

The decision was a rebuke to California law school alumni and deans, who had argued that the passing score was too high, resulting in a historically low passing rate for the February bar exam of under 27%.

The state Supreme Court in mid-July said it would permanently lower the passing score from 1440 to 1390. The clerk to the California Supreme Court later explained its surprising “cut score” decision by stating that California was one of two states with the highest passing score for its minimum competency exam.

This prompted California law school deans and alumni to urge the court to consider applying the changes retroactively.

The 19 deans said in a July 23 letter that they each knew of students who failed the exam while scoring between 1390 and 1440 in February.

"(T)hese students are being double-penalized, both by the score not applying to the February exam and by the fact that they, and only they, will have achieved that now-passing score and yet must wait several additional months beyond the usual timing of the regularly scheduled exam for a new exam and that exam’s results,” wrote the deans.

Like many states, California had to reschedule its summer bar exam for the fall in response to coronavirus related public health concerns.

The California Supreme Court rebuffed the deans’ arguments.

“With one exception, the Court is unaware of any jurisdiction in the past decade that has lowered the exam passing score and applied that decision retroactively.” court clerk Jorge Navarrete wrote in an Aug. 10 letter to the head of the California Bar’s Board of Trustees, Alan Steinbrecher.

Although the Montana Supreme Court in 2016 lowered its passing score retroactively in limited cases, “No similar circumstances are present here,” the California court wrote.

California is preparing to hold an online bar exam on Oct. 5-6, along with more than a dozen other states that decided to opt away from in-person tests.

To contact the reporter on this story: Sam Skolnik in Washington at sskolnik@bloomberglaw.com

To contact the editors responsible for this story: Rebekah Mintzer at rmintzer@bloomberglaw.com; Tom P. Taylor at ttaylor@bloomberglaw.com