Statement from Dean Faigman: Deans Letter to California Supreme Court re California Bar Exam

Today a group of 20 deans of ABA-accredited California law schools submitted a letter to the California Supreme Court, calling upon it to “exercise its legal jurisdiction over the California State Bar to adjust its scoring methods to bring them in line with the nation’s at large.”

As you know, from the day I started as Acting Dean in 2016, a principal concern of mine has been the UC Hastings bar passage rate. On this past July’s exam, UC Hastings performed horrifically, with a 51% pass rate – 11 percentage points below the rate for first-time ABA-accredited California law schools. This performance is, in a word, unacceptable. Changing it is on us, and the school is engaged in a multitude of efforts to turn this around. And we will do so!

However, as I noted in my message after the 2016 results became public, the California State Bar’s historical practice of having, by far, the lowest pass rates in the nation has effectively tied a boulder to the ankles of those taking the California bar exam. Make no mistake about it, the California bar exam is not harder than any other state’s test. California simply sets its “cut score” – i.e., the minimum score set by each state that is required to pass the Multistate Bar Exam (MBE) portion of the bar exam – at an arbitrarily inflated level. California’s bar exam thus is not harder to take, just harder to pass. In fact, as the attached letter describes, California bar takers, and graduates of California law schools, do better on the MBE than the national average. Yet they do worse in terms of passing their own state’s bar exam.

If California’s high cut score, and correspondingly low pass rate, protected the public from unqualified lawyers, it would be defensible. There is no evidence that it does so; and the California State Bar does not claim to have any evidence that it does so.

But the arbitrarily high cut score impacts real lives in profoundly negative ways. Thousands of graduates, many of whom would have successfully passed other states’ exams, are forced to give up jobs, put off job opportunities, incur considerable debt, and suffer emotional and psychological harms as a result of the California Bar’s grading practices. As the State Bar itself recognizes, most of the 38% of those who failed the July 2016 exam will eventually pass on the second or third try. In the meantime, these candidates fall deeper into debt and further into despair. And for what? From the first administration to the second or third, when over 90% will likely pass, these takers do not learn to be better lawyers. They spend their time and money learning how to beat the test.

The attached letter goes into greater detail than I can here. Suffice it to say that as dean of UC Hastings I will never stop fighting to ensure that our students succeed in their chosen profession. Although these efforts are not limited to the bar exam, that exam is a necessary prerequisite to every graduate’s professional success. First and foremost, this means working with our faculty to develop a curriculum that gives our students the best chance to perform well on the bar exam. This we will do. But my obligations do not end at the building’s doors. The attached letter is part of that effort.
I look forward to working with you all to better serve our students and the legal profession.

Sincerely,
David