Message from Dean Faigman: Bar Exam Pass Line

Dear UC Hastings Alumni,

Most of you received a survey from the State Bar of California regarding the “Bar Exam Pass Line.” I have received numerous inquiries regarding this request from the State Bar and thought that a collective response would be best.

I hope that you will complete the survey as you deem appropriate. My intention here is simply to give you some background information and to express my view on the matter at hand.

The survey is part of the State Bar’s evaluation of its scoring practices following the historically low pass rate of the July 2016 exam, reported this past November. For first-time takers, the ABA pass rate was 62% and the overall pass rate was 43%. Those results prompted the deans of California’s ABA-accredited law schools to ask the California Supreme Court to exercise its jurisdictional authority over the State Bar to make necessary changes to the faulty scoring system. Twenty of the twenty-one ABA accredited law school deans signed the letter.

We, the deans, called upon the Court to have the State Bar “adjust its scoring methods to bring them in line with the nation’s at large.” We explained that “California’s current practice of setting an atypically high ‘cut score’ (the minimum passing score set by each state that is keyed to the Multistate Bar Exam (MBE) portion of the exam), has resulted in the nation’s lowest bar pass rate as measured over the past couple of decades.” (California uses a cut-score of 144 (sometimes reported as 1440), which is second highest in the country, behind Delaware.) Moreover, we pointed out, “[t]his arbitrarily high cut score is not supported by any valid basis and we believe it causes multiple public harms both to our students and beyond.” Ultimately, we advocated that “[u]nless or until we have strong justification for the benefits of California’s approach, we ought to bring our exam in line with the approach taken by other economically significant states, most of which use a cut score between 133 and 136.”

As a consequence of that letter, the California Supreme Court ordered the State Bar to initiate research evaluating its cut score. In response to the Court’s order, the State Bar announced its plan to conduct several studies, including a “standard-setting” (or cut-score) study and a “content validity” study. These two studies would join a third study, previously planned, to identify factors associated with the overall decline in bar passage rates in both California and nationally.

As the State Bar’s survey indicates, the first of these studies, the Standard-Setting Study on the exam’s cut score, was recently completed in July and its findings and recommendations presented to the Committee of Bar Examiners and issued for public comment. The survey you received is part of a supplemental effort by the State Bar to obtain feedback on the matter. The expectation is that the State Bar will incorporate comments it receives through the public comment process and this supplemental survey into a final report to be submitted to the California Supreme Court in September. The Court is expected to select a cut score in October, in time to be applied to the July 2017 administration of the exam.

As many of you know, I have been active in this matter and have voiced two basic concerns. First, the scoring of the bar exam needs to be studied in a rigorous and responsible manner. And second, until sound scientific research is done, California should use a cut score in the range of 133 to 136. The national median cut score is 135 and New York used a 133 cut-score for its July 2016 exam.

The State Bar’s Standard-Setting Study was intended to address the first of these concerns. Unfortunately, the study is utterly useless. The study identified 144 as the ideal cut score (yes, the same score the State Bar had been advocating all along), which makes it either a rare feat of empirical coincidence or a case study in research bias. It would be impossible to detail all of the methodological and statistical defects in the study, but even the State Bar’s own reviewers identified myriad problems with the research. The deans plan to follow up with our own detailed review of the study.

In short, the Standard-Setting Study does not satisfy the first of my two concerns, that is, that the California Bar exam needs to be studied in a rigorous and reliable fashion. That this study fails so spectacularly should not surprise anyone familiar with social scientific research. The State Bar assumed an impossible task in attempting to design and implement a study of this size and complexity in just a couple of months. The study’s results could only be expected to reflect the folly of such an endeavor.

Therefore, I continue to stand by the position that I advocated, along with all of the other ABA-accredited deans (but one), in February. Sound research is needed to determine a proper cut score. Earlier this year, Elizabeth Rindskopf Parker, the State Bar’s executive director, told the California Assembly’s Judiciary Committee, that “there is no good answer” for why the California cut score is so high. The Standards-Setting Study fails to provide that answer.

I continue to believe, therefore, what I wrote in a March L.A. Times op-ed:
[California should use] 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.

Thank you for your attention to this matter.

David Faigman
David L. Faigman
Chancellor and Dean
John F. Digardi Distinguished Professor of Law
University of California Hastings College of the Law
200 McAllister Street
San Francisco, CA 94102
Professor, UCSF School of Medicine (Psychiatry)