Shortly before Christmas, the California State Bar released detailed data on the July 2015 bar exam results, and the information confirms some national patterns but also contains a few surprises. Because California is often a trend-setter—in law as in other arenas—and because the California Bar releases more granular data than perhaps any other state bar, the results from the Golden State are particularly worthy of attention. What do this year’s numbers reveal?
Weakness Across the Board, Especially in the Lower-Performing Ranks
First, and most significantly, the passage rate, in keeping with the results from a majority of other states, continued to slide from 2014’s already disappointing results. California’s is recognized to be among the most difficult bar exams. And this year was no different. The passage rate for California first-time takers (who were not already members of another state’s bar) who graduated from any ABA-approved law school dropped from 66.9 percent in July 2014 to 65.7 percent in July 2015. In other words, more than a third of all recent ABA-school graduates who took the July 2015 California exam failed. The numbers aren’t much better for graduates of ABA-approved schools located in California: their pass rate dropped from 69.4% to 68.2%. (Traditionally, in-state graduates are expected to fare better than out-of-state grads, both because a bit of the California Bar Exam covers California-specific fields of law that might be taught more regularly in California schools, and also because California students may be particularly aware of just how difficult the state’s exam is, and thus take more seriously preparation for the test.)
The lower pass rates have affected not only the lower-tier and middle-rank law schools in California; even Stanford and UC Berkeley (widely considered the two most elite schools in the state) have seen their high pass rates slip a little of late, if one looks at the average pass rate of the last two years and compares it to the average pass rates of the two-, three- or five-year periods preceding 2014. (The same can be said for Harvard, the out-of-state school that produces the most first-time test takers in California each year—its 2015 passage rate of 86 percent is off 2 points from 2014’s 88 percent rate, and somewhat lower still than the pass rate average for the several years before 2014.) That said, the real pain can be seen at less selective law schools. Whittier Law School saw a 2015 first-time pass rate of only 38 percent (compared to a pass rate of 65 percent just two years earlier and a pass rate of 84 percent as recently as 2008—a volatility in passage rates that may say something about the nature of the exam and the way it is graded and not just about Whittier). Golden Gate University’s pass rate slumped from 64 percent in 2014 to 48 percent in 2015. University of San Francisco saw its rate plummet from 61 percent in 2014 to 47 percent. Southwestern Law School’s rate went down from 54 percent in 2014 to 51 percent. And UC Hastings saw another slip, from 68.3 percent in 2014 to 67.5 percent this year. For three of these schools (USF, Southwestern, and Hastings), the 2015 pass rate was the lowest since at least 1997 (the earliest year for which I saw data). And Whittier’s and Golden Gate’s 2015 numbers (38 percent and 48 percent, respectively) are not the lowest in the twenty-first century only because both schools experienced some extremely low pass rates (in the 30s and low 40s) about a dozen years ago.
The (Ir)relevance of a School’s Denominator
Interestingly, the pass rate went down not only for California schools that had a larger number of test takers this year (UC Davis’s rate went from 86 percent in 2014, when it had 146 first-time takers, to 74 percent this year, when it had 171 takers, and Pepperdine’s rate went down from 78 percent in 2014, when it had 139 first-time takers, to 69 percent this year, when it had 157 takers), but also for schools that saw a much smaller number of takers in 2015 (such as UC Hastings, which lost ground even though it had 274 takers compared to 360 the year before—a large drop in the number of takers—and USF, which nosedived even though it went from 166 takers in 2014 to 135 this year.) Conventional wisdom suggests that, holding other variables constant, a smaller number of takers at any given school should correlate with a higher pass rate at that school, for two reasons. First, the smaller number of takers might suggest a more selective admissions process three years earlier that would yield a more uniformly academically strong entering (and graduating) class—one whose bottom quarter is less at risk of failing. Second, a smaller number of first-time takers in July might suggest a larger number of students most at risk of failing have decided to study longer before taking the bar and are signing up for the February administration of the exam instead.
Of course, this conventional wisdom may be of little value in a world where a declining applicant pool means that many schools (beginning with the class that entered in 2012 and graduated in 2015) might be enrolling 1L cohorts that are both smaller and less academically credentialed compared to previous years’, and where many top-performing students at some schools transfer out (without equally strong students transferring in), rendering the graduating class somewhat smaller and somewhat less academically strong.
Law Schools Do Care—For Noble and for Selfish Reasons—About Bar Pass Rates
It’s not as if law schools do not care about bar passage rates, or that they lack adequate incentives to try to improve them. In California, in particular, the incentives to support students to pass the bar are high indeed. Even assuming that law school applicants and admitted students don’t pay a lot of direct attention to each school’s yearly bar passage rate (a fair assumption based on my anecdotal experience), law schools and prospective law students who care about U.S. News rankings (i.e., all law schools and nearly all prospective students) are implicitly factoring in bar pass rates. This is not so much because the U.S. News rankings formula explicitly includes bar pass rates—the bar-pass category counts for only 2 percent of a school’s overall US News score. Moreover, the bar pass rate that matters in this category takes into account the overall bar pass rate for the state in which a plurality of a school’s students take the bar. So the overall low bar pass rate in California means that California schools with a pass rate at the state’s average fare no worse—in this category—than they would if they had a higher pass rate in a state that had a higher average pass rate. (Indeed, California schools with high pass rates are advantaged, in this category, relative to their national peers, insofar as they have at least the opportunity to outperform the statewide average by a wider margin than is true in states with very high overall bar pass rates.)
Rather, the real reason rankings-conscious law schools care deeply about pass rates (apart from the genuine concern that schools have about their students who have spent three years and thousands of dollars being delayed or derailed in their legal practice careers), is that another, much larger, component (14 percent overall) of the U.S. News methodology looks at the percentage of a law school’s graduating class that is employed in jobs for which a license is required (or a JD is preferred) ten months after graduation. The higher a school’s July pass rate is, the higher the percentage of the most recently graduated class will have practice-related jobs ten months after graduation, to which U.S. News gives highest weight. Indeed, a July bar pass rate operates almost as an informal cap on what the 10-month-legal-employment rate could be.
In this regard, California law schools as a whole are disadvantaged (relative to competitor schools in other states) in the U.S. News ranking. The historically low pass rates in the Golden State make it harder for California schools to have good 10-month-after-graduation employment rates, which in turn (because this factor counts for 14 percent of the U.S. News overall score) makes it hard to fare as well on the aggregate U.S. News ranking. Interestingly, though, those California schools that do have very high bar pass rates in a year when the overall state rate is quite low have an opportunity to fare particularly well on the employment metric, insofar as there is less competition for their recent graduates who passed the bar for whatever jobs are out there requiring bar passage. We can see this from the 2015 California results; there are about 1,000 fewer newbie licensed lawyers entering California’s legal job market right now than there were two years ago in 2013. For those persons who did pass the bar (and for those schools that had high bar-pass rates), finding jobs may be easier than it was in years when the overall pass rate was higher.
A Silver Lining With Respect to Underrepresented Minorities?
In subsequent essays I hope to explore how law schools can and should respond to the declining bar pass rates (which are likely to get worse, at least nationally, before they get better). But before I conclude today’s column, let me note one aspect of this year’s data in California that is not dispiriting: the performance of first-time takers who are black, Latina(o) or who consider themselves an “other (non-Asian)” minority. While the pass rate for white and Asian ABA-school graduate test takers dropped (which accounts for the overall drop), the pass rate for blacks, Latina(o)s and other (non-Asian) minorities actually ticked up a bit from the 2014 numbers (which were the lowest since 2007 for blacks and since before that for Latina(o)s). To be sure, the pass rates for non-Asian minority takers continues to be much lower than for whites and Asians. And the uptick from 2014 is smallish (from about 41% to 44 percent for blacks from all ABA-approved schools and from about 57 percent to 58 percent for Latina(o)s from all ABA-approved schools). And one year does not a trend make. And we need to address why whites and Asians suffered a decline. And so forth.
But as we enter 2016—a year in which the legal academy and legal profession are going to need to examine more critically how we train and license lawyers—the data on minority California bar performance is at least a minimally bright spot in an otherwise gloomy picture.