Op-Ed: The California bar exam flunks too many law school graduates

I still remember opening the envelope with my California bar exam results. It’s one of those flashbulb memories. I passed, with more relief than joy. Much has changed since then. Graduates no longer open envelopes; they check scores on a computer. I was a professor then, and now I am the dean. But the basic experience has not changed. Thousands of graduates continue to hold their breath each fall as they check their scores. A lot depends on those results.

Graduates who fail face losing jobs already started, not getting jobs that were promised, debt, embarrassment and more debt. Simply taking the exam again costs more than $700, and add to that the cost of further bar review classes, living expenses in the meantime and income lost. All told, thousands more dollars may be piled onto law school debt that is increasingly well above $100,000.

Most of those who fail their first attempt eventually pass the bar on the second or third try. After each attempt, however, these graduates do not learn to be better lawyers, they simply learn how to beat the test. And the damage done from the initial failure can be great. In addition to the financial costs, they may find themselves timed out of promising professional opportunities that never reappear. Finally, there are the emotional and psychological costs that are possibly the most overwhelming consequence of even one failed attempt.

Given the stakes for the individual law graduate, as well as the state’s obligation to ensure that those given a license to practice law are qualified, one would think the state bar, which administers the test, would have sound reasons for how it sets the line — the “cut score” — between passing and failing. If you thought that about California, you would be mistaken.

The California bar exam has historically had the highest cut score of any state, consistently resulting in the nation’s lowest pass rates. In July 2016, California’s pass rate reached a record low 62% for graduates of American Bar Assn.-accredited law schools. New York’s was 83%. Although California has always had low pass rates, the July results caused an outcry. It finally dawned on those of us who run law schools in the state to ask why.

Was New York truly allowing unqualified lawyers to practice? Did the State Bar of California have research indicating that its cut score of 144 was more protective of the public than New York’s 133? Twenty (out of 21) deans of ABA-accredited law schools in California wrote in protest to the state Supreme Court, which has authority over the bar. Several of us later testified on the subject at a hearing before the California Assembly’s Judiciary Committee, where Elizabeth Rindskopf Parker, the state bar’s executive director, told the committee that “there is no good answer” for why the California cut score is so high.

In fact, the best rationale the state bar can come up with for its high score is that it has always been this way. Tradition! And yet as Oliver Wendell Holmes pointed out over a century ago, “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.”

Everyone now seems to agree that the California bar exam needs to be studied. The state bar has said so; the Assembly Judiciary Committee has said so; the law school deans have said so; and so has the state Supreme Court, which ordered the state bar to complete a study and report back by the end of 2017. The issue today is what to do in the meantime. The “study and report back” timetable most likely condemns another law school graduating class to a nearly 40% bar exam failure rate, for no good reason.

At the Judiciary Committee hearing, a representative of the California bar was asked how many exam takers fell between New York’s passing score and California’s. The answer was 1,789. That is, there were 1,789 individuals who would have begun their careers in New York but who have instead had their lives profoundly disrupted in California.

The deans’ letter asked the state Supreme Court to require a more rational cut score. We suggested using either a comparable state’s score, such as New York’s 133, or the median of all state scores in the country, which is 135. Neither may be a perfect cut score for California; we do need to study the matter. But in the meantime, California should not continue to be such an extreme outlier.

Doing something because everyone else is doing it may not be the best basis for acting. But when the lives and careers of so many young people are at stake, it’s a whole lot better than departing from what everyone else does for no reason whatsoever.

David L. Faigman is chancellor and dean, and a professor of law at UC Hastings College of the Law.

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