41.8% Pass Rate Baffles Experts : Legal Profession Frets as Bar Exam Failures Soar

As law students cram for the approaching California Bar examination, baffled and concerned legal observers are still searching for reasons behind last July’s alarmingly low passage rate of 41.8%--the worst record in several decades.

California’s three-day test, including 200 multiple choice questions used by 42 states, six essay questions and two questions about the performance of law, has always been considered tough and has always produced a generally lower pass rate than the tests given in other states. That lower rate has been attributed to California’s unique provisions that anybody can take the test to be admitted to the practice of law, whether he has graduated from an approved school or merely reads law books, and can take it as many times as he wishes.

Despite that, California’s pass rate has generally hovered around 50%, and in July, 1983, was 49%. The drop in 1984 was the largest in 21 years, and, of even greater concern, was reflected in across-the-board declines for graduates of all the state’s American Bar Assn.-approved law schools.

“I don’t know why it has happened and I am not positive we will ever know for sure,” admitted Alameda Superior Court Commissioner Diane C. Yu, chairman of the Bar Examiners Committee, which includes nine lawyers and two members of the public. Her committee is still analyzing last July’s results. The next test is scheduled to begin Feb. 26.

The most prominently suggested causes for the decline include a perceived effort by the Bar to limit the number of lawyers practicing in California (now 90,000), a poorer caliber of student or poorer preparation, a harder test or tougher grading standards.

Looking for Answers “I wish there were some real, clear-cut, everybody-agree-on-it, easy answer,” said Associate Dean Hassel Hill of the Glendale College of Law. “But my feel for it is we are just talking about a little bit here, and a little bit there, and when you put them all together, they cause somebody’s head to snap back. I don’t think there is that much change in the students or the law exam.”

The suspicion exists among law school leaders as well as the public that current lawyers are tightening the exam to limit new competition. But they readily concede no proof of such activity has ever been found.

“That does seem to be a very popularly held idea,” commented the Bar’s Wu. There is absolutely no truth in the assumption that we set any acceptable passing percentage. There is no quota.”

Certain the “conspiracy theory” is groundless, Arthur N. Frakt, dean of Loyola University School of Law, pointed out that the tests are graded by trained teams. He said there also is no need for limits because law school enrollment is declining and jobs with top law firms go begging.

“The only thing I am sure of in my mind was what didn’t happen, and that was a conscious attempt by the Bar to keep people from practicing law,” said Larry Raful, dean of admissions at USC School of Law. Raful says he has even compared pass rates of right-handed and left-handed students searching vainly for explanations for the declines.

Caliber of Students Most of the legal experts in Southern California interviewed for this article adamantly reject the notion that the declining scores can be blamed on the students themselves, or on their lack of preparation. These experts insist that the caliber of their students has remained virtually constant and that their faculty and curricula have not deteriorated.

Frakt, however, said performance in law school is a fairly reliable indicator of performance on the Bar exam. He points out that some law schools have admitted less-qualified students because of declining enrollments.

“We have analyzed our graduates who took the Bar and what is really striking is the exceedingly close correlation between performance in law school and performance on the Bar exam,” he said. “B-plus and better students almost all pass the Bar; most of the C-pluses fail the Bar exam. I think what has clearly happened is the pass level for the Bar has been set generally at B level or above, and we have people passing law school with C’s and C-pluses who aren’t going to make it.”

In response to the declining pass rates, Frakt said he recently sent out two tough memos, one to Loyola law students warning that anyone with grades under B has little chance of practicing law in California, and one reminding faculty to demand more of students.

Most disturbing about his analysis, Frakt said, is the realization that minorities enrolled in the school under affirmative-action policies have the least chance of ever practicing law. His findings mirror those made as long ago as 1979 by the state Bar showing that minorities have the lowest pass rate on the Bar just as they have the lowest entry scores and grades in law school.

(Only 11.6% of blacks passed the July, 1984, exam compared to 15.8% the previous year; the pass rate for Latinos was 18.1%, compared to 24.8%, and for Asians, 30%, down from 39.7%. By comparison, 48.3% of whites passed last July, down from 55.1% the year before.)

“You will find most of the minorities at the C or C-plus level, so for many of them it may be a real exercise in frustration that, yes, they can get through law school, but if the Bar pegs its exam to a higher level, their chances of passing are very limited,” Frakt said.

Other scholars, staunchly defending their students, look at the test itself and its grading.

Higher Difficulty “The most likely explanation is that the California Bar exam is just becoming harder to pass,” said Pepperdine University School of Law Dean Ronald F. Phillips.

“The questions themselves don’t seem harder. They seem fairly typical,” said John FitzRandolph, dean of the Whittier College School of Law. “I can only presume the grading standards are tougher.”

The Bar’s Yu adamantly denies that there has been any attempt to toughen the test. She said the committee is urged just as often to make the test easier as to make it harder but that the group intends to keep it at the same level of difficulty.

Her committee last year did recommend eliminating the essay portion from the exam--a move sharply opposed by educators--thereby reducing the test from three days to four. The reason was not to make the test easier, however, but to eliminate what the committee considered duplicative of the two-year-old performance portion and, as a conceded side benefit, shortening grading time. The Bar Board of Governors will make any final decision about eliminating any part of the test.

Meanwhile, the scholars continue to study past Bar exam results to find a way to help their students who fail.

“I don’t think we really know what the solution is until we have a handle on the problem, and I don’t think that will be easy,” said Glendale College’s Hill. “But we’ll keep looking. We have to.”