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Examiners ask to raise passing standard.

For the first time in 20 years the Florida Board of Bar Examiners has petitioned the Supreme Court to raise the pass line on the bar exam.

But critics contend the board has shown no societal need to raise the standard and say the move may have a negative impact, on minorities.

The examiners asked the court October 29 to raise the scaled score an applicant must obtain to pass Parts A and B of Florida's bar examination from 131 to 136 or better.

The examiners also requested that the increase be phased in over two years, with the pass line being raised to 133 effective one year from the date of approval by the court, and then increased to 136 a year after the first increase kicks in.

The examiners told the court the gradual process of implementation will provide "abundantly fair notice and reasonable preparation time" to the law schools and their students.

"Our goal is to just make sure that lawyers admitted to the Bar in Florida meet the competency level that should be expected of Florida lawyers," said newly installed Board of Bar Examiners Chair Randall Hanna of Tallahassee.

A number of law school deans, however, objected to raising the standard, saying the burden of the proposed changes will fall on those already economically challenged, and will provide no meaningful benefit to the citizens of the state. Others expressed concerns that raising the pass/fail line will adversely affect efforts to increase the number of minorities entering the legal profession.

"For the foreseeable future, increasing the passing score will choke off the relatively meager flow of African-American lawyers into The Florida Bar," said Joseph Harbaugh, dean of Nova Southeastern University law school.

But Franklin Harrison -- who chaired the board last year while the passing standard was being reviewed -- told the court the board has "full confidence" in the opinion of its testing expert that the increase will have "no measurable effect on existing differences among the passing rates on Florida's bar examination for the minority and nonminority groups."

Because the board also is sensitive to any disparate effect raising the standards may have on minorities, Harrison said, it took "a conservative approach" in recommending the move to 136. And to confirm that the move will not adversely affect minorities, Harrison said the examiners also have asked the court to allow it to begin collecting and analyzing demographic information on Bar applicants and provide that information to the court following each administration of the exam.

Harrison said the board reached its decision after undertaking a comprehensive review of the examination process, which included two studies involving a large number of trial judges, academicians and practicing attorneys. And the results showed the passing standard could have legitimately been raised to 138 or higher, he said.

Dr. Stephen P. Klein, the examiners' testing expert, said other states have found that applicants respond to an increase in standards by improving their preparation for the exam. Klein -- who has worked with the National Conference of Bar Examiners and more than 20 state boards of bar examiners -- said in the unlikely event that Florida applicants did not respond to a change in standards by improving their preparation, then a five-point increase in the total scale score required would lead to about a 11-percentage point drop in the passing rate.

The examiner's board voted 12 to 2 (with one member absent) to recommend the pass/fail line be raised.

Noel G. Lawrence of Jacksonville, one of the dissenting board members, said it is premature to raise the pass/fail line without first knowing how minority applicants are currently faring on the exam. Lawrence said the most recent information the examiners have on minority passing rates was gathered in 1991 as part of the Supreme Court's Racial and Ethnic Bias Study Commission findings. Lawrence said that study found that minority applicants passed the bar at a rate of 64 percent with a pass/fail line if 131. At a standard of 136, Lawrence said, the minority passage rate would fall to 52 percent.

"We really do not know what it would be now, and I think that is putting the cart before the horse," said Lawrence, who plans to file a minority report with the court. "We need that data before we can make an informed decision."

Nova's Harbaugh said a two- or four-year test study in which racial data is collected and applied to the 133 and 136 levels of passing recommendation would have provided the examiners with more precise information about the impact of altering the passing score.

Harbaugh also questioned the board's 1991 study because it lumps all minorities into a single group.

"Minority applicants are not fungible; they may be African-American, Cuban-American, Chinese-American, Japanese-American, or members of a host of other identifiable racial or ethnic groups," Harbaugh said, adding that restating the date to report pass rates by race would most likely present a more dramatic disparity. "Indeed, the difference in pass rates between white applicants and African-American applicants would almost certainly exceed 25 percent at every reported passing score.

Lawrence also questioned the timing of the petition since the Board of Regents recently created the Legal Education Advisory Council to discuss ways to bring more minorities into the legal profession, and Florida A&M University and Florida International University have been clamoring for new law schools.

Harrison, however, said the board did not consider politics when making its decision.

"We looked at it strictly from a licensing standpoint to see what the standards should be in Florida for the admission of applicants to practice law," Harrison said. "We believe that is our job, that is the job the Supreme Court has given us to do, and based on that, is the job we are doing."

Harley Herman of Leesburg, chair of the Bar's Student Education and Admission to the Bar Committee, said his panel also is concerned about how the plan may impact minority admissions.

"If its only purpose is to eliminate individuals who could be Bar members without measuring additional proficiency, and then if it has the impact of diminishing the ability of minority applicants to get into the Bar, that could be of concern," Herman said. He added that the SEABC will meet December 10 to study the petition further and decide whether to seek Board of Governors' approval, to take a position on the proposed change.

The other dissenting vote was cast by Antonia Williams-Gary, a public member of the bar examiners from Miami. Williams-Gary opposed the recommendation because she felt the pass/fail line should be increased higher than the recommended 136.

The examiners told the court its decision to raise the standard also was influenced by the finding that examinees under the current 131 pass/fail standard only have to get 56 percent of the total questions correct to achieve a passing score.

"An increase to 136 would only require examinees to get 59 percent of the questions correct to pass the bar examination," the examiners said, adding that even the higher rate of 59 percent is still far below the 70 percent rate required of bar applicants in Florida prior to 1961.

The examiner also said the proposed increase to 136 is "far from being a dramatic change," when compared to the historical Practices of the board and the current standards of other jurisdictions.

"In fact, the initial increase to 133 will merely return the pass/fail line to the place where it was in 1981-1982," the examiners said. "Even at the eventual 136, there are currently 12 jurisdictions that have a pass/fail line higher than that with California and Delaware topping the list at 144."

At a passing rate of 136, Florida would join three other jurisdictions -- Iowa, Maryland and North Carolina -- while five other states, including Georgia, are currently at 135.

Dean Gary Vause of Stetson University said increasing the passing standard by five points is unlikely to permanently exclude most of those who will not succeed on the first exam from being admitted to the Bar and nothing in the examiners' Petition identified any problems that would be remedied by adjusting the pass/fail line.

"There are no finding that the current standards results in an undue amount of malpractice suits or a lack of competence among Florida lawyers," Vause said. "The only meaningful impact it is going to have is to simply delay those graduate in passing the bar and thereby impose a rather substantial financial burden on them in addition to the one they are already carrying."

Dean Dennis O. Lynch of the University of Miami said interviews with UM graduates found that those who are overextended with financial or family burdens have more problems passing the bar, with the greatest burdens falling on part-time students "who continue to work while studying for the bar just as they did during law school."

"We have also observed similar problems among our full-time students who are pressured by their employers to work more than the 20 hours per week permitted under ABA accreditation standards," Lynch said. "These pressures from employers often are present while students are preparing for the bar examination. Students who fail the first time as a result of such pressure normally will pass by the second test but a higher pass standard may well increase the failure on the first test among this group."

Harbaugh also said the board has not presented any evidence that increasing the passing score will improve the profession.

"The board has the scores of everyone who passed the bar in recent years," Harbaugh said. "So far as I am aware, the board has not made any attempt to investigate whether those who only scored 131 are performing less well than those who scored 133 or 136."

If the examiners are interested in competency, Harbaugh said, they should investigate whether lawyers who scored at the minimum passing rate over the last decade are being disciplined more often, or sued for malpractice more frequently, or being terminated by employers at a higher rate than those who score higher on the exam.

"In the absence of any finding whatsoever of a societal need, I have difficulty accepting this proposal," Vause said.


Prior to 1961, an applicant was required to get 70 percent of the answers correct to achieve a passing score. Between 1961 to 1981, the pass/fail line varied from one bar exam administration to the next. The examiners said during that 20-year period, the pass/fail line was established by averaging the top 10 scores on the particular exam being graded and then subtracting 20 points from that average score.

In 1980, the board recommended significant changes to the structure of the exam that included the reduction of the number of exams administered each year from four to two; replacement of the Florida ethics portion of the exam with the Multistate Professional Responsibility Examination; adoption of a scaling procedure to the Multistate Bar Examination to ensure a consistent standard of measurement of competence from test to test; and adoption of a pass/fail line of 133. The court approved those changes in 1981.

In 1982, the examiners said, the court sua sponte reduced the pass/fail line from 133 to 131, where it has remained since.
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Author:Killian, Mark D.
Publication:Florida Bar News
Article Type:Brief Article
Geographic Code:1U5FL
Date:Dec 1, 1999
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