LEGAL EDUCATION:
DEAL OR NO DEAL
D A N T R AY N O R
ABA Delegate
The American Bar Association (ABA)
House of Delegates considered a full slate
of resolutions at the midyear meeting in Las
Vegas, including proposals to change the
bar passage rate standard for law graduates
and another to oppose arming non-security
personnel in the nation’s schools.
In a significant change, the Council of
the ABA Section of Legal Education and
Admissions to the Bar asked delegates to
concur with a change meant to simplify the
bar passage standard. The recommendation
would amend Standard 316 of the ABA
Standards and Rules of Procedure for
Approval of Law Schools. The current
standard has been criticized as “overly
complicated,” providing different options
for demonstrating compliance, including an
“ultimate” bar passage rate of 75 percent over
five years.
The revisions simplify the standard to require
at least 75 percent of a law school’s graduates
must pass a bar exam within two years
of their date of graduation. The delegates
rejected a similar change in 2017.
The impetus for this change is concern for
students’ consumer protection. Law students
sometimes incur mountains of debt to obtain
a legal education. The licensure that may be
needed to repay the debt cannot be obtained
without passing a bar exam.
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THE GAVEL
Opponents suggest the change may adversely
affect diversity. The simplified and arguably
more rigorous standard may adversely affect
law schools with diverse enrollments because
black and Hispanic students from lower-
income households have historically had
more difficulty passing the bar exam.
The new standard may impact the University
of North Dakota (UND) School of Law
where the 2015 two-year average showed a
73 percent pass rate.
According to information provided by
UND’s law school, diversity may play
some role in North Dakota’s lower score.
Anecdotal evidence suggests national origin
and race may tend to cause UND’s rate to
be lower with Canadian students and those
interested in practicing in tribal jurisdictions
sitting for at least one bar exam without the
essential motivation or exam preparation.
A state bar license is generally not required
to practice in tribal jurisdictions and is not
needed in Canada.
The loudest opposition to the revised
standard comes from California, with one of
the highest “cut scores” in the country. The
“cut score” is the minimum score needed
to pass the bar exam. In California, the
passing rate for the July 2018 exam plunged
to 40.7 percent. While California’s Chief
Justice characterized the low number as
“frightening,” the California Supreme Court
said in a letter to the State Bar of California
it was “not persuaded” to lower the passing
score without further study.
Unlike California’s unique test, North
Dakota uses the Uniform Bar Exam, which
is employed in a majority of states. We also
have one of the lowest “cut scores” in the
country.
Revision of the ABA standard will likely
result in UND’s law school implementing
strategies to identify and tutor students
who may be at risk of failing the bar exam.
It may also extend a student’s final year of
law school to include bar preparation.
In 2017, the South Dakota Board of
Regents approved a higher fee of $400
per semester for bar preparation. After
three years (and six semesters) the $2,400
collected would pay for a BARBRI Bar
Review course. Students could receive
a refund if they decide to opt out of the
BARBRI course or select a different
approach.
Most delegates welcomed a resolution to
oppose the idea of arming school personnel
with firearms. While no successful proposal
has been enacted in North Dakota, State
School Superintendent Kirsten Baesler
suggested the sensible idea of allowing
rural schools to provide law enforcement
officers with space to complete reports
while not on patrol. The random presence
of law enforcement is meant to bolster
school safety.
ABA Days in Washington
ABA Days, the association’s annual
grassroots lobbying effort in Washington,
D.C., is scheduled for April 9-11. North
Dakota’s delegation has been very generous
in meeting with SBAND representatives.
American Law Institute Meeting
in Washington
The American Law Institute (ALI) Annual
Meeting is scheduled for May 20-22. The
ALI agenda is not available at this time.