Maura Dolan, Los Angeles Times, July 26, 2020
For more than three decades, California has clung to one of the nation’s toughest testing standards for law school students hoping to practice law in the most populous state in the country.
But this month, the California Supreme Court, which oversees the state bar, agreed to lower the passing score for the exam, a victory for law school deans who have long hoped the change would raise the number of Black and Latino people practicing law.
After holding virtual meetings with law school graduates and deans, the state’s highest court this month permanently lowered the passing score, allowed for law school graduates to work temporarily under supervision with provisional licenses during the pandemic and permitted graduates to take the bar exam remotely in early October.
“There is absolutely no evidence that shows having a higher score makes for better lawyers,” said UCLA School of Law Dean Jennifer L. Mnookin, a longtime supporter of lowering the passing score. “There is significant evidence that it reduces the diversity of the bar.”
Forty percent of California’s population is white, 60% are people of color. But 68% of California lawyers are white, and only 32% are people of color, according to a new report by the State Bar of California.
UC Berkeley School of Law Dean Erwin Chemerinsky said the court’s action would not have come now if it were not for the coronavirus outbreak.
The Black Lives Matter movement also might have influenced the court.
“On the one hand, the pressure to lower the score has existed for some time,” Chemerinsky said. “On the other hand, the racially disparate impact of the higher cut score may have had particular importance for the court in light of what has happened in the last few months.”
In February, a time when many graduates who failed the bar the first time retake it, only 26.8% of all test takers passed.
Of the first-time test takers from law schools accredited by the American Bar Assn., considered the top schools in the state, 51.7% of white graduates passed, compared with 5% of Black grads, 32.6% of Latinos and 42.2% of Asians.
The average national bar exam passing score is 1350. New York’s is 1330. California’s was 1440 until the court permanently reduced it to 1390. Both Chemerinsky and Mnookin estimated that change will raise the pass rate by 10%. The court did not apply the new score retroactively.
Victor D. Quintanilla, a professor at Indiana University’s Maurer School of Law and an adjunct faculty member of the Department of Psychological and Brain Sciences, said pass rates for the California bar have been falling for all applicants, but the effects of California’s particularly high test score have disproportionately hurt racial and ethnic minorities.
He is part of a foundation-funded team of law professors and social psychologists who have been studying California’s bar exam results for the last 10 years. He said 19.5% of white test takers never pass the bar even after multiple attempts. By contrast, he added, 46.9% of Black test takers and 30.5% of Latinos never pass.
Quintanilla, who also chairs the Assn. of American Law Schools section on the empirical study of legal education, said Black people and Latinos generally do worse than white counterparts on “high-stakes” standardized tests, such as the SAT.
The seven-member state high court has two white justices, one Black justice, one Latino and three Asian Americans. Chief Justice Tani G. Cantil-Sakauye and Justices Goodwin H. Liu and Joshua P. Groban participated in a three-hour remote meeting with 2,700 law students and graduates. Liu, Groban and Justice Mariano-Florentino Cuéllar joined a separate remote meeting with law school deans.
The court refused three years ago to lower the passing score, the second highest in the nation after Delaware’s. In a written decision, the court noted that the pass rate had risen and fallen over the decades, with periods of pass rates for first-time test takers ranging from the upper 60th to the middle 70th percentiles from 1989 to 1997, in 2001, and from 2006 to 2013.