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EDITORIAL: Law schools, standards and the bar-pass rate

Nevada’s decision in 2017 to lower the cut score necessary to pass the state’s bar exam may have ramifications beyond higher success rates. The American Bar Association is currently considering pulling its sanction from law schools that graduate too many students who fail the test.

The new ABA accreditation standard would “require 75 percent of a given school’s test takers to pass the bar within two years of graduation,” The Wall Street Journal reported Monday. The proposal will be considered this month when the association convenes for a meeting in, ironically, Las Vegas.

“If a school can’t get enough of its students to have a high enough pass rate, then there’s a problem,” Barry Currier, the ABA’s managing director of accreditation and legal education, told the Journal.

Bar pass rates have been falling in recent years — and part of the problem is obvious.

Many law schools have seen shrinking enrollment over the past decade, causing revenue losses. Meanwhile, a study released last year found the number of applicants who excelled on the LSAT or had been high achievers as undergraduates has also dwindled, leading to more competition for them among elite schools. The response, particularly for middle- and lower-level law schools, has been to expand the applicant pool to include weaker candidates. That has led to a higher failure rate on the bar exam.

The findings also reflect issues at the K-12 level. The race to attract fewer high-talent applicants means that “academically weaker students are paying more than their academically stronger classmates,” an October essay on law.com notes, “even though their career and earning prospects are not as strong.” These students graduate with massive debt and fewer options for success.

The State Bar of California released a report last month which concluded that “weakening credentials of incoming students and performance in law school accounted for up to half the decline” in the bar passage rate, the Journal reported.

Consider UNLV’s Boyd School of Law. In July 2011, the school’s bar-pass rate was an impressive 87 percent. Five years later in 2016, the number had plummeted to 63 percent. In response, the state slightly lowered its cut score. Voila! The 2017 rate jumped to 81 percent.

Rick Trachok, chairman of the Nevada Board of Bar Examiners, argued that the lower score didn’t make a difference. The increase, he said, resulted from much higher marks on the multistate portion of the exam.

As Staci Zaretsky noted for abovethelaw.com, “perhaps Nevada just needed test takers who were ‘more able’ to pass the exam.”

Boyd would likely be safe under the ABA’s new standards. But let’s hope that ultimately reflects a more able student body than a dumbing down of the bar-pass score to artificially juice the numbers.

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