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How the 40% Bar Passage Rule Hurts the Less Fortunate

As a graduate of the California State Bar Law Office Study Program [1. LOSP], I always get concerned when I see laws/regulations that make it harder for those less fortunate, or less gifted, from having an equal opportunity (note I did not say “equal outcome.”[2. Communism and Equal Outcomes]) So this new proposal has me taken aback.

First, I wanted to point out that law schools don’t teach to the Bar Exam. Law schools teach general principles and are often comprised of Socratic types of classroom discussions that would do little to help a person pass the Bar Exam, in my opinion. This comment above is not to say the conversations and arguments are not helpful.

Law Schools Do Not Teach to the Bar

Why do I think this? The answer is quite simple because I passed the First Year Law Student’s Exam before ever entering a law school classroom. I stayed on the Law Office Study Program and was waived into law school. And when I was there, I could not understand why the essays weren’t structured more like Bar Exam questions.

I asked several professors, “why aren’t you teaching us stuff on the Bar, or teaching us how to write essays like on the Bar.” I was met with the usual. “Law schools don’t teach to the Bar, that is what a review course like BARBRI is for” [3. What is BARBRI?].

So when I attended law school, here is what I found:

  • A large portion of the students was English as a second language and thus, could not get the LSAT scores or funds to get into a top tiered school;
  • Many of the students were single mothers;
  • Some students have already experienced litigators who, except for a Bar Card, could out practice and outmaneuver even the most experienced trial lawyers (I had previously second chaired three jury trials as a “Certified Law Student” [4. Certified Law Student], and authored thousands of briefs and legal pleadings under several supervising attorneys.)

My findings were that these students were just as smart, if not smarter than kids at top-tiered schools, but simply did not have the time, money or resources (wealthy parents, etc.), to get into the “better schools.” So I dislike laws that require a law school to have a particular bar passage rate. In my opinion, this will cause many law schools not to take on the risk of one of those less fortunate, such as ESL and single moms, discussed above.

The Federal Lawsuit

A federal lawsuit has been filed by the Southern California Institute of Law, over a rule requiring state-accredited law schools in the state of California to maintain a bar passage ratio of at least 40 percent. The lawsuit was filed by the Southern California Institute of Law, against 22 sitting and former members of the Committee of Bar Examiners on February 4th in the U.S. District Court for the Central District of California.

The lawsuit claims that the newly adopted bar passage percentage and the authority of the committee in overseeing state-accredited law schools is unconstitutional. By taking this rule, the school alleges the committees violated its internal procedures and claimed the committee members have a vendetta.

Focus on Bar Passage Rate is Misplaced

This new rule will help the top schools and shut out a lot of new potential admittees, based upon my finding. And the complaint by the school is a total of 42 pages detailing due-process and free-speech violations, while the focus is on the bar passing percentage rule.

This was adopted in December and applies to a cumulative bar passage rate, throughout five years and is retroactive. Before passing this rule, the committee debated the bar passage rating, in which they did not set a minimum.

The Notice of Non-Compliance

This new rule will mean that schools that do not meet the 40 percent rate the committee decided on this year will be receiving notices of noncompliance. The non-compliant schools under this rule will face probation and possible loss of state accreditation, by 2016. The committee had considered the bar passage ratio earlier. However, a minimum was not set.

Committee Chairman Sean McCoy stated in The California Bar Journal, the changes they made were to help the committee determine the quality of education provided at the state accredited schools and to make their expectations clear. The pending lawsuit was declined to be commented on by one of the State Bar representatives.
Out of the 18 accredited law schools in California, many of the administrators opposed the rule that had a cumulative pass ratio of 32 percent for July 2012 first-time bar exam takers. The rate was 11 percent for those repeating the bar exam.

Hurts the Poor and Disadvantaged?

Dean Stanislaus Pulle of the California Institute only said in a comment that “We live in a nation of laws.” The law school claimed the compliance rule is unfair. This was said because their campuses in Santa Barbara and Ventura, California offer part-time night programs. So many students remain older, of moderate financial means and working parents.

So they would possibly lack the access to expensive prep courses. The result of this rule would mean the school would need to alter the curriculum focus on the bar exam preparation and have a stricter admission policy, to be compliant the lawsuit alleges.

  • The lawsuit says the new rule does not take into account the nature of the student body, the quality of the academic program, the excellence of the faculty and their effort to ensure the chances of success on the bar exam. The new standard fails to factor in the mission of the school and other factors considered in the re-accreditation process.

The school alleged it could suffer because of the bar passage rates, before knowing it would have to meet the percentage. They claim the 40% was chosen arbitrarily and without any evidence that a school’s bar passage rate has anything to do with the quality of the school’s education program.

The claim alleged the legislative and executive branches, should be the regulators on accreditation standards, rather than the panel that functions on behalf of the California Supreme Court. The school challenged the committee’s regulatory authority.

The lawsuit claims that there was no literature provided by the legislature in the policy guidelines or directions for implementing the new policies. The suit said the defendants acted without legal authority, by actions that are a violation of state constitutional prohibitions against judicial and quasi-judicial rule creation.

The suit claims that they were trying to get rid of Pulle. And there have been numerous individuals involved with the committee that has worked to prevent the institution its ability to secure a curriculum waiver. The committee attempted to get rid of Pulle who was educated in the United Kingdom, by introducing a mandate that states only a U.S. trained lawyer can serve as law school deans.

The faculty of law requested an injunction in the enforcement of the bar passage rule, and they are asking for damages. What do you think? Who will be helped and who will be hurt? Why not just make law schools into a Barbri course and get a 99% pass rate? Sound off. Is this a fair decision?

Michael Ehline - PI Law Tutorials

Michael Ehline is a highly trained personal injury attorney in Los Angeles, CA. He writes educational articles to help injured consumers.

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