Raising the bar to Bar admission.
Armed with a year-long study and a national expert's backing, the Board of Bar Examiners wants to raise the bar exam pass-fail line from 131 to 136 to bring Florida from the bottom one-third to the top one-third of states in the country.
But a group of Florida private law school deans counters that the board's study is flawed, that further research is required, and absent proof that raising the passage rate will increase lawyer competence, there's no reason to tinker with the exam.
The Florida Chapter of Bar Association weighs in with the concern that raising the passing standard will disparately impact minorities at a time when there is a dearth of minority lawyers.
And the Florida State Conference of NAACP Branches adds that the bar exam should be revamped to better test lawyer skills, not legal theories, so that law schools aren't just teaching for the exam.
Voices pro and con filled the Florida Supreme Court on October 3, during oral arguments on amendments to rules relating to admission to the Bar (Case no. SC96,869).
Justices began by focusing on the simple question: Why change?
"Could you outline very succinctly why?" asked Justice Peggy Quince. "What is the major reason to raise the passage rate?"
"The question is: What is the problem that is being addressed?" echoed Justice Leander Shaw. "Are there unqualified lawyers? Is that the reason?"
The real reason, said Thomas Pobjecky, general counsel for the Board of Bar Examiners, is because there really was no rational, empirical justification for the current rate of 131. So the board conducted a study, hired an expert, and it was determined the rate should be raised in a two-step process: first from 131 to 183, then 133 to 136.
His explanation included a brief history lesson, beginning with the creation of the Florida Board of Bar Examiners in 1955. In the early years, prior to 1961, he said, the pass/fail line was simply set at 70 percent.
"I assume that was from the educational standards of the day," Pobjecky said. "You get 69, you fail; get a 70, you pass."
The standard from 1961 to 1982, he explained, was to average the top 10 scores and drop down 20 points.
"Apparently, during that time, that was the considered way of doing it. There still was no basis. That's just the way everybody was doing it, so that's the way we're going to do it here in Florida," Pobjecky said.
"Then you switched and made significant changes in 1981 to the bar exam, and at that time the court went to 133. Two years later, the court reduced it to 131."
And while Florida has a "gold standard" when it comes to thorough investigations of character and fitness, Pobjecky said, "that is not true when it comes to the bar exam's pass/fail line. We're in the bottom one-third. We've' heard this over the years. Arid finally, in 1998, Florida said, 'It's time to stop speculating. It's time to decide: Is 131 appropriate? Should it be higher? Should it be lower?' That's what prompted the 12-month study."
Assisted by Justice Fred Lewis, a blue ribbon panel was assembled of judges, lawyers, and practicing attorneys, Pobjecky said, and they recruited the expertise of a leading authority on bar exams, Dr. Stephen Klein, n psychometrician from the Rand Corporation in California.
"What is the purpose of making people who graduate from accredited law schools take the bar exam?" Chief Justice Charles Wells asked.
Bar exams are necessary to make sure law schools do the best they can in educating their students, Pobjecky answered.
Justice Shaw asked: What makes an appropriate pass/fail line?
"The literature I quote in my reply and the experts I have read all seem to say there should be some type of systematic, some kind of comprehensive, study done in good faith to try to establish what it was. And that's exactly, what the board did," Pobjecky said.
Chief Justice Wells said he's concerned that after 46 years' experience with the bar exam in Florida, rather than relying on theory, there should be an empirical study of what is being accomplished by the bar exam. When it comes to gauging lawyer competence, he said, "I'm not sure the grievance numbers are as effective a measurement as malpractice claims."
"Let's start with the proposition that' the bar exam does in fact test competency," Pobjecky said. "It has been studied in California and by the National Conference of Bar Examiners and elsewhere that the bar exam is in fact n measure of knowledge and skills related to the practice of law. Does it not make more sense that the higher the score you get the greater the demonstration of knowledge and skills? I submit to you there is n correlation between the bar exam results and competency. Otherwise, the exam shouldn't be given."
But Joseph Harbaugh, dean of Nova Southeastern University's law school, countered that there is no proven correlation between raising the passage rates and greater competency or ethics of lawyers, and therefore would provide no greater protection to the public.
"The deans, suggest that you look at reality, which is the level of grievances filed, or as the court suggested, malpractice claims filed, to determine whether there is a competency problem in the Bar today," Harbaugh said.
"There is absolutely no evidence that increasing the score on the multiple choice portion of the bar will increase the minimum competence of lawyers entering the profession. The proof of that is there is no suggestion that lawyers in California or Delaware, with 144 on the MBE, are more competent at the entry level than are the lawyers in Florida," Harbaugh said.
Absent that proof, do not change the passage rate, he argued.
"We've got a test that has been in place and is exactly the same measurement that is taken in 2001 that was taken in 1983. And unless you can show there is a serious problem, then there is no reason that has been advanced to increase the score," Harbaugh said.
"Do law schools have a justification for 131?" Chief Justice Wells asked.
"That's a truly interesting question, Mr. Chief Justice Wells," Harbaugh answered, adding that 131 was set arbitrarily in 1983.
"We now have 18 years experience with that standard. What we have as a result is a Bar that I believe is viewed internally within the state and externally in other jurisdictions as n very competent Bar," Harbaugh said.
Calling it "a very complicated issue," Justice Harry Lee Anstead wondered "how the average citizen would respond" to knowing that two-thirds of the states have n higher passing standard than Florida. And he noted that "it is almost universally recognized that despite the debates, testing is about all we have" -- whether it's testing a 16-year-old in Europe on whether to go to universities or become a worker-or how to gauge progress in America's public schools.
Obviously, the marketplace relies on testing. Law schools compete for students who score the highest on LSATs and have the highest GPAs," Justice Anstead said. "How can Florida hold ourselves up to a gold standard,' yet we're in the lower one-third?"
"Simply changing the score will not have an effect on competency," Harbaugh responded. He said the Law School Admissions Council often tells him not to overly rely on test measures.
"Then why have it?" Justice Anstead asked.
"Because it's the only device we have other than programs such as ours," Harbaugh said, referring to courses taken as part of the admissions program.
Chief Justice Wells pointed out that since the bar exam's current passage rate was set "there's been a tremendous explosion of lawyers. The population of lawyers in Florida has grown about 25 percent in just the past seven years. Obviously, we have to be concerned who we are sanctioning to provide representation to the public."
"We, the deans, agree," Harbaugh said. "Mr. Chief Justice, we are not opposed to studying what is an appropriate standard. But our concern is the board study conducted by Dr. Klein is so flawed that this court should not accept the recommendation of the board based upon that study."
The study by the board's expert, Harbaugh argued, "gave a misleading aura of scientific authenticity.."
Harbaugh offered other researchers who provided documentation on the short-comings of the Klein Report and "gave a very clear suggestion as to how the court should set up a methodology to truly study the appropriate passing score."
"We are also saying, however, that-with the 131 passage rate for 18 years, even though the Bar has increased dramatically, there doesn't appear to be any outcry by the public or profession that our Bar is seriously incompetent."
When Daryl-Parks, representing the Florida Chapter of the NBA, stood at the podium, the focus turned to the impact on minorities, a concern raised by the Bar Board of Governors when it gave conditional approval to raising the passage rates in April 2000.
Data from the February and July 2000 exams showed fewer minority first-time test takers pass when the passage rate is raised.
"Address your concerns as an African American lawyer," Justice Barbara Pariente requested, asking whether raising the passage rate would have an "adverse effect or an incentive to do better?"
"It's main concerns that there is the greatest disparity to minority groups as the score rises," Parks answered. "We are getting to a situation where people go to law school hoping they only have to prepare for t e bar exam. That concept is wrong. You are trying to develop competent lawyers. To create the mind-set that students just prepare for an exam shouldn't be our purpose. As we continue to increase the score, we fall into a situation where e buy into that concept."
But as he passage rate stands now, Pariente said, test takers need only get 56 percent correct, and "that's a pretty low setting of minimum competence."
In answering, Parks gave his personal testimony: While he had a "relatively low" LSAT score and grade-point average, he scored in the mid 140s on the bar exam because he was able to study night and day. Most minorities, he said, are not so fortunate d have to work while attending law school and preparing for the exam.
But Justice Lewis pointed out that the July 2000 exam results showed out of 27 African-American first-time test takers at the University of Miami, 25 passed, or 93 percent.
Parks responded that the impact on minorities is an issue the board should look at before raising the bar exam."
During rebuttal, Justice Pariente asked Pobjecky: "By raising this bar are we going to increase the failure of certain groups' rate across the board and not have any tradeoff with increased competence? That would be a terrible, terrible thing to do -- not knowing if we're getting any benefit."
Pobjecky answered: "I think the focus should beon what is the appropriate standard. And ere is no basis for 131... . Of course, the board shares the concern the court has o diversity and passage rates of minority groups."
Then he went on to share another concern: Georgia raised its passage rate to 135, and 84 percent of first-time test takers passed. Yet, in Florida only 79 percent passed at 31.
"What does that tell us? How come students in Georgia are capable of passing the bar exam at 84 percent at a higher standard t an Florida? Does that not give concern to anybody? It gives concern to the board."
Justice Quince asked: "Are you concerned that Florida law schools are not preparing students well enough?"
"That has to be an obvious concern arising from the study," Pobjecky replied.
Harley Scott Herman, an attorney for the Florida State Conference of NAACP Branches, added his voice to the concern that raisin the bar exam passage rate would have a "chilling effect on African Americans" hoping to become lawyers. But he went a step further in arguing for creating a bar exam that is less theory-based and more reflective of testing basic skills.
"We're in new century, and we should look at the kind of test we use.... I believe the bar exam offers a field of dreams: If you test it, hey will teach it. If you teach it, students will study it... .Let's not do harm until we can create a proper exam. We can do better. We must do better."
After or arguments, on the courthouse steps, Pobjecky said he believes Florida's law school will rise to the occasion and better prepare students if the bar exam is raised.
"Studies have consistently shown that," Pobjecky said. "Look at the University of Miami exam results that Justice Lewis was citing. Ninety-three percent of African-American students passed. That's first-time test takers. UM does a good job preparing their students, and race, gender, and ethnicity doesn't matter. It's the education you get, and the preparation you do."
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|Publication:||Florida Bar News|
|Date:||Oct 15, 2001|
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