Law School Transparency criticizes 1,400 rule on state bar exams

By Angela Underwood | Oct 23, 2017

California’s state bar cut score is the second highest in the country and it’s not going to change.

And a recent Supreme Court decision to keep 1,400 as the passing number for the state bar exam after 30 years is disappointing to Law School Transparency founder and attorney Kyle McEntee.

Speaking to the Northern California Record directly after the Oct. 18 decision was announced, McEntee said the matter was surprising.

“The current cut score is arbitrary, and they have admitted as such, yet they say because it is just as arbitrary as everything else and that there is no reason to change it,” McEntee said.

Using a modified version of the Analytic Judgment Method by court selected subject matter experts, the “Final Report on the 2017 California Bar Exam Standard Setting Study,” was conducted due to rising legal education costs “and the financial hardship potentially resulting from non-admission to the California bar,” according to a California Supreme Court news release.

McEntee said schools should be held accountable for low bar passing grades in California, “schools know what they are working with and they know how much it costs to attain a legal education in California.” Right now, he argued, schools face no risk for adding to a problem of "ruinous debt" for law school students.

“If they are going to keep admitting people that can’t pass the bar, then they are doing a disservice to those people,” McEntee said. “They are still ending up a lot of debt and the risk of that debt, not the schools. And they also bear the risk of sitting three, four, five years out of the labor market.”

The Supreme Court noted in 1989 to 1997, in 2001 and in 2006 to 2013, there were high first-time pass rates. “The pass score did not appear a matter of controversy during these periods,” according to the new release.  McEntree said he was a was little leery.

“The court was smirky in mentioning this in the press release that no one really complained about the cut score when the pass rates were high,” McEntee said.

Discussing the 1,400 score staying the same for 30 years, McEntee, who was asked to appear before a legislative committee as well as giving interviews every few days on the subject for the last two months, said there is no reason for it to be that high for three decades since instituted in 1987.  

“The legal profession [has] operated the last 100 years, ... to keep the underrepresented out,” McEntee said. “Whether it is blacks, Hispanics, Jews, Catholics, whatever it is--there is a long history of discrimination and ensuring that the bar looks like your prototypical white, straight, male, Protestant lawyer.”

The state court noted that although the 1,400 current pass score is staying the same for now, “the court will consider any appropriate recommendation to revisit the pass score in the next review cycle, or sooner if the court so directs,” according to the news release.

“There has been progress made over the last several decades, but there is still an incredible amount of progress that still needs to be made in the profession and across our society and it is bothersome to see the state supreme court not recognize that basic fact that this is keeping people out of the profession,” McEntee said.

“They should not be kept out of the profession at least on those grounds. There is no reason that someone can get one score in California on the same exam and get it in New York and be able to practice in New York. The law in New York is not any more complicated than it is in California.”   

This article was update on Oct. 30 to reflect minor errors in transcription. The previous version also erroneously stated that McEntee was asked to "sit" on a legislative committee, when in fact he appeared before a legislative committee.

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