ABA House of Delegates rejects changes to bar passage standard for law schools

• Author: Stephanie Francis Ward
• Pages: 63-63

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PHOTOS BY MARC HAUSER; SHUTTERSTOCK

ABA House of Delegates rejects changes to bar

passage standard for law schools By Stephanie Francis Ward

The ABA House of De legates voted 334 -88 again st a proposal to

tighten a bar pas sage rate standa rd for accredited la w schools at the

ABA Midyear Meet ing in Las Vegas.

Language in Resolution 105 called for at least 75 percent of a law

school’s graduates to pass a bar exam w ithin two years o f gradua-

tion. Under ABA rules, the Ho use can

send a potential revision—in this case

for Standard 31 6—back to th e council

of the Sectio n of Legal Educa tion and

Admissions to the Bar twice for revi ew

with or without recommendations,

but the council has the fi nal deci-

sion on matters related to law

school accreditation.

As was the case in

2017, when the House of

Delegates fi rs t rejected

the proposal, criticism cen-

tered on what the change

would mean for di versity in the

profession. Two years ag o, some groups

called for disp arate impact stu dies

before going for ward with any cha nges.

The council respon ded in November

2018 with a mem o addressing diver sity

concerns about the proposed revi-

sion, includin g a voluntary s urvey with

responses from 92 law schools.

Paulette Brown, who focused much of

her term as ABA pres ident in 2015- 16

on promoting diver sity and inclus ion in

the legal professi on, spoke agains t the

resolution.

“I have listened very carefully to many of the argum ents that have

been advanced by the council, a nd to be direct a nd frank, they j ust

don’t hold wa ter,” said Brown, a senio r partner at L ocke Lord and

the fi rm’s chief di versity and inclu sion offi cer. “Th e council has the

right to ignore w hat we say. That does not absolve us of t he respon-

sibility to give th em a very clear and strong mess age that we will n ot

stand by while they decimate the d iversity in the l egal profession.”

Robert Grey Jr., ABA president in 2004- 05, also spoke against

the resolution.

“They have not del ivered facts that a re compelling for us to

change our vote from the fi rst time to the second tim e,” said Grey, a

retired senior counsel with Hunton Andrews Kurth.

Daniel Thies, a new member of th e council, spoke i n favor of the

resolution. He told the assembly there was no reason why the pro-

posed revision would have a disproportionate impact on people of

color. According to him , out of the 15 l aw schools that wou ld have a

problem meeting the two-year 75 pe rcent requirement b ased on

2015 data, only two are historically black colleges and universities.

There are six law sc hools associ-

ated with HBCUs, according

to the resolution’s report.

“So those sch ools would only h ave to make small cha nges to their

programs or admissions policies in order to comply. Like all regu-

lated entities, the regulated will respond,” said Thies, an attorney

with Webber & Thies in Urbana, Illi nois. “I wan t to stress that even

for those who mi ght have problems, they don’t have t heir accredita-

tion pulled tomo rrow. Give and take, ba ck and forth, and they get

two years to come back into complia nce.”

No accredited law school has ever bee n out of complia nce with

the current versio n of Standard 31 6, and there a re various ways

to meet its current requirements. O ne is for at leas t 75 percent of

graduates from the fi ve most recent

calendar years to have passed a ba r

exam, or for th e school to have a

75 percent pass rate for at least

three of those fi ve years.

A school can a lso be in com-

pliance if just 70 percent of its

graduates pass th e bar at a rate

within 15 percentage points

of the average fi rst-time bar

pass rate for ABA- approved

law school gradu ates in the

same jurisdiction for three

of the fi ve most recently

completed calendar years.

After the resolution

was voted down, Ba rry

Currier, the

ABA’s manag-

ing director

of accredita-

tion and legal

education,

released a statement.

“Because th is is the House’s secon d rejection of t his proposal,

the council’s optio ns are to abandon the effort to revi se the stan-

dard; propose a di fferent revision; or reaffi rm an d implement the

changes. The timetable for the council’s consideration of the matter

has not been set ,” Currier said . “The council u nderstands this is a

complex matter. Revisions to the existing s tandard on bar p assage

outcomes provide more straightforward and clear expectations

for law schools a nd provide regulati on and process th at are more

appropriate for today’s environment.

“Most student s go to law school to become lawyer s . Becoming a

lawyer requires p assing the bar e xam. How well a sch ool’s gradu-

ates perform on the bar exam is a very import ant accreditatio n tool

to assess a law school’s program of legal education.”

Kyle McEntee, executive director of Law School Transparency, a

group that focuses on law school refor m, told the ABA Jou rnal in an

email that he wa s disappointed th e resolution did not pass.

“Standard 31 6 is good polic y. I hope and exp ect the Secti on of

Legal Educatio n to adopt the sta ndard,” he wrote. “ Then, fi na lly,

it can hold law schools account able for failing to prepare its

graduates for entr y to the legal profession.” Q

MARCH 2019 ABA JOURNAL || 63

Former

ABA President

Paulette Brown