Recently, the Standards Review Committee of the ABA announced that it will be proposing a change to ABA Standard 316, which governs the minimum bar exam passage rate that a law school must show in order to remain accredited. As has been reported elsewhere, the current rule provides law schools with a number of ways to demonstrate compliance.  The proposed rule streamlines the path to compliance.  Under the proposal, 75% of a school’s graduates who took a bar exam must pass within two years of graduation.  First-time bar passage will still be reported on a school’s Standard 509 report.

It is important to put this proposal into a broader context:

• A declining applicant pool has led some schools to lower admissions standards.
• Critics have argued that some law schools are admitting students who have little to no hope of passing the bar exam, at least not on the first attempt.
• There has been public bickering between some deans and the National Conference of Bar Examiners about who is to blame for recent declines in bar passage nationwide, with the former blaming the test, and the latter blaming law schools for lowering admissions standards.

I argue that, along the way, there has been a silent rethinking of how we view the bar exam. Many schools take great pride in their bar passage rates, as they reflect well on their programs of legal education.  In the past, a school’s bar exam passage rate was thought to be the measure of knowledge acquired in law school.  But there are a few reasons why the bar exam does not fully assess the learning that goes on in law school:

• The bar exam tests a narrow range of topics (here is the multistate essay subject list) and requires a limited number of skills (principally analysis and writing).  This is not to say that these topics and skills aren’t important—they are.  But they don’t compass the full range of skills, knowledge, and values that law schools seek to engrain in their students and for which we are responsible for assessing (e.g., oral communication skills, legal research, interpersonal skills, and doctrinal subjects not covered on the bar exam).
• Preparing for the bar exam requires intensive study (i.e., “cramming”) in the weeks after graduation, usually with reliance on a commercial bar preparation company.  Success or failure on the bar exam has a lot to do with the studying that occurs during this period.
• Like any high stakes standardized test, it is subject to criticism that it does not effectively test the subjects and skills that it purports to assess.

For these reasons, I argue that it is better to conceptualize the bar exam as a gatekeeping device, designed to ensure a certain minimal competency of the most essential knowledge and skills of a recent graduate.  It should not be considered the final word on what a student did or did not learn in law school, since the range of what the exam tests is narrow.

So, back to the ABA Standards Review Committee’s recommendation. The proposal should be put into a broader context of learning outcomes assessment and reforms within the ABA.  The proposal has less to do with assessing student learning and more about consumer protection, a recognition that the bar exam serves a gatekeeping function and that students (good consumers) should be well-informed of whether they are likely to clear that hurdle or not.  Rather than relying on the bar exam as one of two outcomes—the other being employment—to measure student learning during law school, the ABA and law schools can now point to other, independent processes of assessing learning: i.e., the processes laid out in Standards 301, 302, 314, and 315.

This is not to say that the bar exam cannot provide valuable data on student learning, but it is no longer the sole measurement of student learning.  Now, law schools are required to have robust, transparent processes for showing evidence of student learning and doing something to improve their programs of legal education with the data.