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Controversial Bar Passage Standard Adopted by ABA Legal Ed Council

May 17, 2019, 9:01 PM

A controversial change to the law school bar passage standard passed the ABA’s legal education council May 17.

Law schools will have to achieve a 75 percent pass rate for students within two years of graduation to keep their accreditation.

The vote at the council’s meeting in Chicago came after more than an hour of debate. It follows a previous council decision in February to defer action on the standard and consider concerns expressed by those opposing it.

The council first approved the revised standard in 2016 but passage has been stymied by the ABA House of Delegates, which has twice rejected it, citing negative impacts it could have on minority students.

The legal profession as a whole has been under scrutiny for years for its continuing lack of diversity, and has been called one of the least diverse industries.

But the legal education council used its unilateral power to approve the standard despite the opposition. It will go into effect immediately.

Barry Currier, managing director for the ABA law school accreditation process, said in an emailed statement following the vote that more guidance on the implementation of the standard is forthcoming.

“These revisions provide more straightforward and clear expectations for law schools, and establish measures and process that are more appropriate for today’s environment,” he said.

Support, Criticism

A supporter of the new standard called it “welcome news for consumer protection.”

“Law schools that fail to prepare their students to enter the profession should be held accountable,” Kyle McEntee said in an email to Bloomberg Law. McEntee is executive director of Law School Transparency, a non-profit consumer advocacy group dedicated to educating the public about the legal profession.

Critics of the new standard 316 say it could put diverse students at a disadvantage because many schools with more diverse student populations don’t meet the 75 percent cutoff.

In a recent memo answering questions about standard 316, the council said that “addressing the question of diversity in the profession is the responsibility of the entire ecosystem, not just the accreditation process or the law schools.”

Supporters say it will help law students by ensuring schools train them to be competitive.

The old standard made it possible for law schools to take advantage of students because they weren’t held accountable for failing to adequately prepare students to enter the legal profession, Kyle McEntee said in January.

The former standard offered law schools several ways to comply with the bar passage requirement, a component of law school accreditation. A school can show that 75 percent of graduates who sat for a bar exam passed within five years of graduation.

A school could alternatively show that its first-time pass rate is within 15 percentage points of the pass rate in the jurisdictions where graduates took the exam.

The council and the House of Delegates have been butting heads over the newly adopted standard for several years.

After the house first rejected it over diversity concerns in 2017, the council collected data on bar passage rates and held discussions with law school deans and other concerned groups about the proposed revision and resubmitted it for consideration.

The council believes it “plays a critical role, paternalistic though it may be, in protecting prospective and current law students as a consumer protection matter,” it said in the memo.

They “are entitled not only to be informed of law schools’ bar pass rates and other relevant information, but also to an education that provides them with a reasonable chance of passing the bar and entering the profession,” the council said.

To contact the reporter on this story: Melissa Heelan Stanzione in Washington at mstanzione@bloomberglaw.com

To contact the editor responsible for this story: Rebekah Mintzer at rmintzer@bloomberglaw.com