Traditionally those who take the bar exam in February achieve a lower pass rate than their July counterparts, but the results from this February’s exam has surprised many, raising questions about the quality of the test-takers as well as the quality of the exam.
The February overall passage rate for the Indiana Bar Exam fell to 51 percent, the lowest percentage to pass since February 2002. For the past four years, Indiana’s February results have been comfortably within the 60-to-70 percent range. But the 2016 rate fell 13 percentage points from February 2015.
February bar exams usually produce a lower pass percentage because the test has a higher number of repeat takers, people who have failed the bar at least once. A total of 104 test-takers repeated the exam in both February 2016 and 2015, while first-time takers dropped to 154 from 166.
Senior Judge Barbara Brugnaux, president of the Indiana Board of Law Examiners, described the February passage rate as “stunning.”
“I don’t know,” she said when asked what had happened. “I don’t want to speculate.”
Indiana was not alone. Other states, such as Florida, Washington, and Tennessee, reported declines in the number passing their bar exams. Also, the national portion of the test, the Multistate Bar Examination, noted its mean score fell to 135, the lowest February average since 1983.
For Barnes & Thornburg LLP partner John Maley, the February results and other trends raised more concerns about the bar exam itself, specifically the Multistate Bar Exam, than about the test-takers’ abilities.
He has taught IndyBar Review’s bar exam preparation classes for 25 years. He is also co-chair of the Indiana Bar Exam Improvements Task Force, a collaboration between the Indiana State, Indianapolis and Marion County bar associations, which researches bar exam issues.
Maley questioned whether the multiple choice test was the best way to determine competency in legal principles, and he noted Indiana has no control over the content of the MBE. Historically, the Indiana Bar Exam was primarily essay format and tested on Indiana law. In 2001, Indiana adopted the MBE, which is a product of the National Conference of Bar Examiners, an organization that Maley described as an out-of-state, nonpublic entity that lacks transparency.
Most significantly, the MBE, which comprises half of Indiana’s bar exam, does not test on Indiana law or precedent. Maley noted this is counter to the Indiana Rules for Admission to the Bar and the Discipline of Attorneys, which states the bar exam should have questions that require an understanding of Indiana law to answer.
He pointed out the MBE criminal law section, for example, asks questions about the Model Penal Code, which Indiana has not adopted.
“There are concerns about this ‘fake law’ aspect of the exam, as well as the multiple choice format,” Maley said. “Disparate impact concerns have been raised by some as to this method of standardized testing. The National Conference, meanwhile, touts ‘portability’ of the MBE from state to state, but that does not really exist in practice.”
Jeff Hawkins, former president of the Indiana State Bar Association and current member of the ISBA Professional Legal Education, Admission & Development Section, also wondered whether multiple choice questions can measure a person’s capability to practice law.
He remembered when he took the bar exam in 1997, he “burned up the Bluebook” since the test was purely essay. Writing essay answers, he said, allow the test-takers to demonstrate their understanding so even if they misunderstood a question, they can still show their knowledge of the subject. In turn, exam graders are better able to evaluate the level of competency and, in instances of a misinterpreted question, can exercise personal judgment and give a passing score.
The low passage rate is coming just after the America Bar Association Section of Legal Education and Admissions to the Bar floated a proposal to tighten the requirements of bar passage on law schools.
Specifically, the proposed change to Standard 316 would require 75 percent of a law school’s students who sit for the bar to pass the exam within two years of graduation. This is reduced from the current standard of 75 percent passage within five years. Schools that fail to meet the standard could lose their accreditation.
The section explained the shorter time limit will allow the ABA entities to take action more quickly against a law school that might be admitting students incapable of passing the bar or not offering a sufficiently rigorous course of study.
Indiana University Maurer School of Law professor William Henderson called the proposal “a fine response” to the concerns that law schools are admitting low-credentialed students who are less qualified and less likely to pass the bar exam. He described the current standard, with its loopholes, as being “almost designed to ensure there’d be no failure” by law schools.
However, if the proposal is adopted, he anticipated only about 10 or so law schools could be affected.
The Indiana Bar Exam will change in 2018 with new topics added to the essay portion. That is the only modification the board has approved, and Brugnaux dismissed any possibility of making the test easier to improve the passage rates.
“It is the role of the Indiana Board of Law Examiners to protect the public by ensuring that the lawyers licensed in our state meet the minimum competency standard,” she said. “That is our role. It is not our role to ensure a certain percentage will actually pass the exam.”
Cream of the crop
Grade point averages and LSAT scores of classes entering law schools have been slipping since the Great Recession. Still, Indiana attorneys were not quick to join the chorus who believe February’s disappointing returns are an indication that lesser-skilled students are going to law school and the cream of the crop are going elsewhere.
Henderson refused to add his voice to those who say students with low LSAT scores should not be admitted to law school. He pointed to law schools, like those at North Carolina Central University and Campbell University, which take less-prepared students but gear their teaching to address deficiencies and end up graduating classes that can pass the bar.
Still, he is not sure how many law schools will adopt this kind of intervention teaching to prepare students for careers in the law.
The new Standard 316 may scare people, Henderson said, but “it takes a lot of hard work to prepare people who are not natural test-takers to pass the bar. I don’t know how many law schools want to pay that price.”
Even without a special focus on bar preparation, Brugnaux believes students graduating from Indiana law schools today are better prepared. The experiential learning opportunities, like the clinics and internships, are giving students the experience they need to practice law in the real world.
Hawkins is sympathetic to those who did not pass the February exam. He remembered his own fears of failing and worrying about how he would pay his student loans if he was not able to practice law.
“My heart goes out to the law school graduates who pinned their hopes on being a lawyer but now have to find a Plan B,” he said. “Most of them, I’m sure, borrowed heavily and it’s going to be financially devastating to them.”•