Professor and Director of Academic Support and Bar Passage Marsha Griggs (Washburn) has a new article on SSRN, Building a Better Bar Exam. It is a well-written critique of the Uniform Bar Exam. From the SSRN summary:
In the wake of declining bar passage rates and limited placement options for law grads, a new bar exam has emerged: the UBE. Drawn to an allusive promise of portability, 36 U.S. jurisdictions have adopted the UBE. I predict that in a few years the UBE will be administered in all states and U.S. territories. The UBE has snowballed from an idea into the primary gateway for entry into the practice of law. But the UBE is not a panacea that will solve the bar passage problems that U.S. law schools face. Whether or not to adopt a uniform exam is no longer the question. Now that the UBE has firmly taken root, the question to be answered is what can be done to make sure that the UBE does less harm than good?
This paper will, in four parts, examine the meteoric rise and spread of the UBE and the potential costs of its quick adoption. Part one will survey the gradual move away from state law exams to the jurisdictionally neutral UBE. Part two will identify correlations between recent changes to the multistate exams and a stark national decline in bar passage rates. Part three will address the limitations of the UBE, including the misleading promise of score portability and the consequences of forum shopping. Part four will propose additional measures that can coexist with the UBE to counterbalance its limitations to make a better bar exam for our students and the clients they will serve.
The UBE, while well-intentioned, has had unintended consequences. In the Empire State, the New York State Bar Association—a voluntary membership organization, not a licensing or regulatory entity—is studying the impact of our state’s move to the UBE a few years ago. As Patricia Salkin (Provost, Graduate and Professional Divisions, Touro) and I wrote about in the New York Law Journal, there was a precipitous decline in New York Practice enrollment statewide after New York’s “unique” civil procedure code, the Civil Practice Law and Rules, was no longer tested on the bar exam. Students voted with their feet and flocked to other courses. The NYSBA Task Force will attempt to assess whether there has been a decrease in lawyer competency following the adoption of the UBE.
In the meantime, Professor Griggs’ article makes a nice addition to the conversation around various aspects of the UBE.
The bar exam is an important outcome measure of whether our graduates are learning the basic competencies expected of new lawyers. As the ABA Managing Director reminded us in his memo of June 2015, however, it can no longer be the principal measure of student learning. Thus, we’re directed to look for other evidence of learning in our programs of legal education, hence the new focus on programmatic assessment.
Nevertheless, the ABA has wisely retained a minimal bar passage requirement in Standard 316, described in greater detail here. It is an important metric for prospective students. It is also an indicator of the quality of a school’s admission standards and, indirectly, its academic program. Indeed, it has been the subject of much debate recently. A proposal would have simplified the rule by requiring law schools to demonstrate that 75% of their graduates had passed a bar exam within two years of graduation. For a variety of reasons, the Council of the Section of Legal Education and Admission to the Bar recently decided to postpone moving forward with this change and leave Standard 316 written as-is.
With that background, Friday afternoon the ABA Associate Deans’ listserv received a message from William Adams, Deputy Managing Director of the ABA. In it, he described a new process for collecting data on bar passage. A copy of the memo is on the ABA website. This change was authorized at the June 2017 meeting of the Council. Readers may remember that the June meeting was the one that led to a major dust-up in legal education, when it was later revealed that the Council had voted to make substantial (and some would say, detrimental) changes to the Employment Questionnaire. When this came to light through the work of Jerry Organ and others, the ABA wisely backed off this proposed change and indicated it would further study the issue.
The change that the ABA approved in June and announced in greater detail on Friday is equally problematic. Continue reading
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: Continue reading