ABA's Proposed Rule Changes Close Bar Pass Rate Loopholes

By Jonathan R. Tung, Esq. on February 22, 2016 | Last updated on March 21, 2019

Maybe you're not shocked to hear of the accusation lodged at law schools that they don't do nearly enough to accurately account for the quality of their education through the accreditation process.

Well, the ABA's Section Standard's Review Committee just took steps to address some of those concerns and it should make at least a few American law schools shake a little bit. The proposed standards are simpler, easier to understand, and revolve around one simple number: bar pass rates.

Standard 316

It almost sounds like something out of the tax code, but it isn't. Standard 316 refers to currently applied standard by which all ABA accreditated law schools must comply. Here is the relevant language in relevant part, sourced from LawSchoolTransparency:

The "bar passage" standard. A school must pass one of two tests. [Test #1] Within 5 years, 75 percent ultimate bar passage rate or 3/5 years at 75 percent or more. [Test #2] First-time bar passage rate no more than 15 percent lower than pass rate of all ABA-approved graduates in same jurisdiction for 3/5 years. Subsection (c) provides that if a school does not come into compliance within 2 years, it may show good cause for an exemption.

New Proposed Standard

The Standards Review Committee has decided to tighten the belt a little and has proposed recommended changes that demand a school's graduates must pass a bar exam within two years of their graduation at a 75 percent success rate. This would change and modify the conditions of test #1 and #2 above.

Loopholes Closed

The effect of this would first be to close some rather luxurious loopholes that law schools have employed over the years that can allow rather misleading figures. Here are some of those loopholes:

  • A school with high enough statewide influence could actually benefit under test #2 above if enough of its graduates fail their state's bar exam. Think about that.
  • In states that only have a single law school, there is basically no bar passage requirement.
  • School's can stay compliant with the rules by excluding those students who fail the bar exam once and do not elect to try again over the next two administrations of the exam -- so called "non-persisters."
  • And finally, most notoriously of all, schools can cherry pick their bar outcomes to report a higher overall bar pass rate than real graduate numbers would have revealed in the raw.

Not Yet in Stone

The changes, which seem to make sense, are not yet set in stone. They will have to undergo a notice and comment period that will last from March to about June. At that time, the council will then decide to approve, alter, or simply table the revisions. If approved, it then has to be OKed by the ABA House of Delegates. But even if the House of Delegates doesn't approve the changes, the council still has the option to finalize the changes if the HOD doesn't play ball.

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