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2017-07-14 08:11:02
California Supreme Court Moves to Make Bar Exam Easier to Pass

California has long had a reputation for having one of the most difficult bar exams in the country. Now, with passage rates sagging, the state will make it easier to pass the test, which is required to be licensed as a practicing lawyer.

The California Supreme Court, the ultimate authority over the bar exam, has decided to change the way the certification score is set. The court has not yet decided where the threshold will be set, but the changes will take effect in January.

The move follows a sometimes furious debate in California legal circles over whether the state’s passing score, or “cut score” — 144 — was unrealistic.

Each state offers its own bar exam, but many are moving toward more uniform exams, especially in the multiple-choice portion. What differentiates states is where they set the line for passage. For years, California had set the threshold for passing the exam higher than any other state but Delaware.

Last year, just 62 percent of first-time test takers passed the California bar exam, compared with 83 percent in New York.

And only 51 percent of the graduates of the University of California Hastings College of the Law passed the state’s exam in July 2016. That result, the school’s dean, David L. Faigman, wrote the California Committee of Bar Examiners last December, was “outrageous and constitutes unconscionable conduct on the part of a trade association that masquerades as a state agency.”

“The cut score is almost everything,” said Robert Anderson, a professor of corporate law at Pepperdine School of Law in California, who did a study of the 10 most difficult state exams in 2013. That study concluded that “California’s is probably the most difficult” in the country.

“If California changed its minimum score to 133, which is the same as New York’s, then I would say, California’s is easy,” he added. (Delaware’s passing score is 145.)

Proponents for keeping the score argue that state bars have an ethical obligation to protect citizens from ill-prepared lawyers.

But deans of law schools, which have been buffeted by declining enrollments, say setting the bar licensure standard so high serves only to shield the profession by keeping out large numbers of qualified lawyers.

In February, 20 deans at American Bar Association-accredited California law schools wrote the state Supreme Court asking it to set a lower passing score. A state legislative hearing considered the issue, and a study was set in motion. The state Supreme Court soon stepped in to assert its authority over the exam. In amendments adopted on June 21 but released this week, the court said that it “must set the passing score of the examination.”

Cathal Conneely, a spokesman for the court, said on Thursday that the justices would decide on the cut score after they received and considered the bar examiner committee report.

Although no date was set, the justices could make that decision in September and apply the new score retroactively for those taking the California bar examination this month, according to a Twitter post on Tuesday by Joanna Mendoza, a trustee of the State Bar of California.

Some, including Fleming’s Fundamentals of Law, a California bar exam preparation business that tracks the debate over the certification score, called the court’s change “unprecedented.”

Nicholas W. Allard, dean of Brooklyn Law School, hailed the action as an effort “to take back control of licensing and admitting new lawyers.”

The move “signals that much larger concerns are at work that will force eventually an overhaul everywhere of legal testing and licensing practices,” he said.

“Traditional bar exam and licensing practices have outlived their sell-by date and are increasingly hard, if not impossible, to justify as serving the best interests of the profession or the public.”

One flash point in the debate over the California exam was an announcement in April that Whittier Law School, a half-century old and accredited by the American Bar Association, would close.

Bar passage rates at Whittier, long an avenue for disadvantaged students to become lawyers, had plunged in recent years. Its passage rate hovered in the routine statewide range, about 68 percent a few years ago, but fell to 22 percent on the July 2016 bar.

Some critics complained that a number of Whittier graduates had scores high enough that they would have passed nearly every other state’s bar.

The California Supreme Court also said that it would appoint a majority of the 19-member bar examiners committee, which has been criticized for including nonlawyers and political appointees.

The California court’s move to assert its authority over the exam was hailed by some legal professionals.

“I see this development as bringing the role of the California court in bar admissions into the mainstream,” said Erica Moeser, president of the National Conference of Bar Examiners, a nonprofit in Madison, Wis., that constructs and scores the professional entrance exam.

“Virtually all state supreme courts exercise their inherent authority to regulate the admission of lawyers more closely than has appeared to be the case in California,” she said.