Bar exam failure rates draw scrutiny

California’s law-school students are failing the daunting State Bar exam in surprising numbers — and experts are trying to figure out why.

“It’s difficult to understand why the pass rate in California is so low,” said Barry Currier, the managing director of the American Bar Association’s legal education and admissions unit.

Traditionally, California’s grueling, multi-part bar exam has been a three-day test given twice annually in February and July. But this year, for the first time, it will become a two-day exam, starting in July. The shift from a three- to two-day test comes amid heightened concerns about the pass rate.

“The July 2016 pass rate is the lowest it has been basically in 26 years.” — Roger Bolus

Since 1990, passage rates in July have varied widely, spiking as high as 64 percent in 1994. But they have slid steadily in recent years, from 56 percent in 2013, to 49 percent a year after that and 47 percent in 2015. Last year, the passage rate was 44 percent, according to a report by Research Solutions compiled for the Assembly Judiciary Committee, which took testimony on the issue. About 14,000 people take the Bar exam each year. There are about 190,000 practicing attorneys in California.

“The July 2016 pass rate is the lowest it has been basically in 26 years,” said Roger Bolus, a consultant for Research Solutions.

“In the last few years, California’s bar passage rate has reached historic lows,” said Assemblyman Brian Maienschein, a San Diego Republican and member of the Judiciary Committee. “This dramatic decline has caused alarm among students and graduate deans … and consumers of legal services.”

The reasons for the decline are not clear.

Are incoming law school students less prepared than their earlier counterparts? Is the exam too rigorous, especially in comparison with other states? Are too many subjects covered? Are the law schools providing adequate training? Are the stresses and  costs of a legal education itself a factor, with a debt load of $130,000 per student not uncommon? Are the costly bar-review programs doing their job to prepare students for the test?

“I am seriously concerned, not just about impact of the decline in bar passage rates, but also of the increasing gap between bar passage rates in California, and other major jurisdictions, such as New York,” said Stephen Ferruolo, dean of the University of San Diego Law School. “The effect of this low bar passage rate is to put our students and our law schools at a competitive disadvantage.”

He called for a “national standard for a minimum passage rate for law school accreditation.”

The overall decline in law school enrollment was 25.5 percent between 2010 and 2016.

That decline isn’t unique to California, however.

“There have been declines nationwide, although the decline has been more pronounced in California than elsewhere,” said freshman Assemblyman Kevin Kiley, a Republican from El Dorado Hills east of Sacramento and a Yale Law School graduate. “The issue does need more study, and it might be good to look at law firms and public interest groups, and other companies and associations, and work to get their input.”

Test-takers from accredited law schools – those that meet specific requirements of the American Bar Association – tend to do better than those that don’t. But both are showing declines, and the overall passage rate is drawn down by the results from unaccredited schools, observers say.

“At some of the unaccredited law schools, the pass rate is in single-digits,” said Los Angeles lawyer Brian Kabateck, former president of the Consumer Attorneys of California and an advisory board member to Loyola Law School. First-year students at unaccredited schools are required to take a test called the “baby bar” – itself a stringent exam – before they can continue with their studies and, ultimately, sit for the Bar exam.

Some 21 California law schools are accredited by the American Bar Association, including such well-known schools as UC Berkeley, Stanford, Loyola, Pepperdine and UCLA. Sixteen other schools are state accredited, and about two-dozen others are not accredited at all.

Passing the exam, a requirement to practice law in California, is notoriously difficult compared with exams in other states, critics say, but they note that other factors may be contributing to the dwindling pass rate.

Trending along with the lower pass rate is a drop in enrollments.

The overall decline in law school enrollment was 25.5 percent between 2010 and 2016, said Erica Moeser, the head of the National Conference of Bar Examiners.

Facing enrollment declines, schools are anxious to recruit students. “Law schools are in a terrible bind right now,” Moeser said. “You have more law schools than ever, trying to fill seats that were easy to fill five years ago,” adding that the enrollment drops are “devastating to schools that essentially are trying to keep their doors open.”

“I think there has been a decision on the part of some schools to hold on to enrollments, perhaps to their disadvantage in terms of bar passage,” she said.

The declines in enrollments and scores is part of a gradual trend, Moeser added, not an abrupt fall.

“It certainly is not something I would consider as the falling off of a cliff,” she said.