Chancellor and Dean David Faigman is one of 19 California law school deans asking the California Supreme Court to retroactively apply the lowered 139 cut score to graduates who took the February 2020 bar exam.
The July 23 letter asks the court to grant bar admission to those who scored between 139 and 144 on the February bar exam. Earlier this month, as part of an announcement about how it would proceed with the Fall 2020 bar exam given the pandemic, the court permanently lowered the cut score from 144 to 139.
California has one of the highest cut scores and its bar is considered one of the most difficult in the country.
The letter was initiated by UC Hastings Professor Richard Zitrin, an expert on legal ethics who noted he has a personal stake in the issue. “As the longtime chair of the Bar Association of San Francisco’s minority scholarship program, which provides $30,000 scholarships for students from underrepresented minorities, I’m deeply concerned by the fundamental unfairness to students of color, including some known to me, who scored over 140 on the February 2020 bar and must now take the exam once again. Any student in this situation faces a double hardship of a ‘passing’ grade and an extra delay.”
The scoring change was unexpected, and now deans collectively are going to bat for all students who narrowly failed the February exam. They noted the court’s original announcement does not rule out retroactive application.
“We all know of students who achieved a score above 139 and below 144 in February, some of whom had done so for the second time,” the letter states. “Yet these students are being double-penalized, both by the score not applying to the February exam and by the fact that they, and only they, will have achieved that now-passing score and yet must wait several additional months beyond the usual timing of the regularly scheduled exam for a new exam and that exam’s results.”
Typically given in September, the bar exam will be administered online October 5-6 to avoid large gatherings of test-takers during the pandemic.
The letter noted that the timing of the change in the cut score likely affects minorities and people of color in greater proportion. “We know that this pandemic is having disproportionate effects on communities of color as well as disparate socioeconomic effects. It is therefore reasonable to believe that a number of those taking the bar exam again in October, including many candidates of color, have been disproportionately impacted by the pandemic and its effects.”
“The costs for these graduates of having to take the bar yet again in the midst of this exceptionally challenging moment are clear; what genuine benefit to the public is achieved from putting them through that process, given that they received a score of 139 or better just a few months ago?”
Over the last year, the California Supreme Court has shown a new willingness to discuss such matters with law school leaders. The court and the State Bar of California have expressed interest in continuing to work with California deans regarding administration of the October exam, including measures to ensure students have sufficient wi-fi access and quiet locations to take the exam.
Read the full letter from the deans here.