Michigan Bar Passage Rates and the ABA Requirements

Commentary


Don LeDuc, President and Dean | December 15, 2015 | Updated January 7, 2016


Let’s start with the underlying rules regarding bar results.

ABA Standard 316 provides two alternative criteria to determine bar passage compliance by a school, one of which examines ultimate bar passage rates and the other first-time passage rates.  The ultimate passage rate provision includes two tests; the first-time rate provision has a single test.

Ultimate Passage Standard.  The two-part alternative for ultimate passing rates provides that “[a] law school’s bar passage rate shall be sufficient, for purposes of Standard 301(a), if the school demonstrates that it meets any one of the following tests:  (1) that for students who graduated from the law school within the five most recently completed calendar years:  (i) 75 percent or more of these graduates who sat for the bar passed a bar examination; or (ii) in at least three of these calendar years, 75 percent of the students graduating in those years and sitting for the bar have passed a bar examination.”  Thus, one of these tests looks at the cumulative rate over a five-year period, while the other considers the rates for individual years.

First-Time Passage Standard.  The alternative test for first-time bar passage compliance provides “[t]hat in three or more of the five most recently completed calendar years, the school’s annual first-time bar passage rate in the jurisdictions reported by the school is no more than 15 points below the average first-time bar passage rates for graduates of ABA-approved law schools taking the bar examination in these same jurisdictions.”  This test does not include the cumulative five-year rate alternative, considering only the annual rates.

The recent attacks on WMU-Cooley are almost totally void of understanding of the ABA requirements and of the effect of the July 2015 examination results.  Most of the vitriol unfairly directed to those results is the result of ignorance or malice.

The ABA Measuring Devices.  The ABA Standards include several devices to be used in measuring compliance. 

First, the Standard applies to the most recently completed five years, not just a particular single year. 

Second, no single examination is used to measure compliance, only the combined results for a calendar year—February and July.  The July results standing alone have no meaning under the ABA Standard and are only significant when combined with the February 2015 results in determining the annual rate. 

Third, the ABA Standard measures the most recently completed five years.  Under the ABA procedure the combined February and July 2015 results will not be reported to the ABA until October 2016.  Under ABA procedural requirements the 2015 results will be considered when the ABA reviews each school’s compliance at some point after the October 2016 submission. 

Fourth, the ABA does not collect data about or concern itself with overall passing rates on bar examinations, meaning the combined rate of first-time takers and re-applicants (retakers).  The Standard provides alternative measures for first-time takers and for the ultimate overall results, but focuses on the ultimate results for the individuals rather than on the passing rates for the groups of retakers on each examination.  The overall rate is affected by the proportion of first-time and repeat takers at each school, making consistency in comparison impossible.  

Fifth, under the Standards, an individual state’s results are considered on a stand-alone basis only if the results for that state reflect the outcome for at least 70% of that school’s graduates.  WMU-Cooley has a large out-of-state enrollment, so the 70% threshold has not been applicable to Michigan-only results for many years. 

Acknowledging that the Michigan results standing alone are not determinative of WMU-Cooley’s compliance with the ABA Standards, would WMU-Cooley comply if the Michigan results were determinative?

Ultimate Passage-Rate Tests.  The current relevant five-year measuring period under the ABA Standard is 2010-2014, and the relevant passage rate is 75%.  Here are Cooley’s ultimate Michigan results for all its graduates taking the Michigan examination those five years:

Year                 WMU-Cooley  Status
2010                94% passed     this complies
2011                92% passed     this complies
2012                86% passed     this complies
2013                82% passed     this complies
2014                76% passed     this complies
2010-14           85% passed     this complies

The 85% cumulative total for 2010-14 well exceeds the 75% minimum for the five-year period, so it meets the first of the ultimate results alternatives.   And even though the 2014 cohort has had only one year to pass on a subsequent attempt, the school meets the 75% test in each of the five relevant years, exceeding the requirement of three of the past five years.  Contrary to recent assertions that the school does not meet the ABA Standards regarding bar results, WMU-Cooley’s compliance with the ultimate-passage standard in Michigan is perfect.   

Because the recent, misinformed criticism dealt only with Michigan results, this memorandum does the same.  However, WMU-Cooley’s bar results covering all takers from all jurisdictions for the 2010-2014 period comply with both alternatives set forth in the ABA’s ultimate bar passage standard.  The overall passage rate is 81%, and four of the five years currently meet the ABA 75% requirement.

First-Time Passage Rate Test.  Again, the measuring period is the most recent five years—2010 to 2014—and the bar examinations that must be considered are those in the calendar year—both February and July, not just a single test standing alone.  In this setting, the test is whether the passage rate is 75% or within 15% of the state’s overall passage rate.

Applying the second part of Standard 316 to the Michigan first-time bar results establishes these outcomes:

Year                 Michigan         WMU-Cooley  Difference        Status
2010                86%                 84%                   -2%                this complies
2011                83%                 84%                 +1%                this complies
2012                66%                 60%                   -6%                this complies
2013                69%                 58%                 -11%                this complies
2014                73%                 62%                 -11%                this complies

The relevant measuring period for the first-time results is 2010-14.  Measured against the 15% deviation requirement, WMU-Cooley complies in all five years, exceeding the “any three of the previous five years” requirement.   

Impact of the 2015 July Bar Results.  Our 59% first-time passing rate for 2015 is consistent with the range of the past three years, and they will be reported to the ABA in 2016.  The 2015 Michigan first-time results will continue WMU-Cooley’s perfect compliance with the 15% deviation test.    

Year                 Michigan         WMU-Cooley  Difference        Status
2015                72%                 59%                 -13%                this complies

Assuming the current rate of improvement between first-time and ultimate results that the school has experienced in the past three years, the ultimate passage rate for 2015 will be around 75% by this time next year, when 2015 becomes a relevant measuring year.  If so, when the 2010 results are replaced by the 2015 results, the Michigan results will likely continue to meet both parts of the ABA Standard’s ultimate passage rate alternative.

Passage Rate for Re-takers.  The ABA does not require schools to report the group passage rates for groups retaking a bar examination.  Nor do its Standards require a minimum passage rate for those who retake.  Instead, it measures whether the individual graduates in a cohort ultimately pass within the five-year period. 

The passage rate for retakers is much lower than that for first-time takers.  Michigan’s retaker passing rate on the July 2015 examination was 24%, which included 21% for our school.  Here are the annual passing rates in Michigan for all repeating takers and for WMU-Cooley:

Year                 Michigan                     WMU Cooley
2010                50%                             37%
2011                46%                             44%
2012                33%                             28%
2013                45%                             39%
2014                45%                             42%
2015                35%                             29%

The NCBE Declining-Class-Profile Assertion.  The National Conference of Bar Examiners asserts without convincing supporting data that the cause of declining national bar passage rate is due to a decline in the quality of law school entering classes, resulting in graduates who are characterized as “less able.”  In addition to the lack of adequate supporting data for the assertion, the claim represents a misuse of the LSAT.  The proper use of the LSAT is limited by the six cautionary statements of the creators of the test—the Law School Admissions Council—limitations endorsed by the ABA.   The NCBE assertion violates, among others, the caution against using the LSAT for any purpose other than in helping an individual school to make admissions decisions. 

Beyond this improper use of the LSAT, it is the profile of those who graduate and take a bar examination that is the relevant measure, not the profile of those who enter law school.  The ABA does not collect the profiles of law school graduates; rather it only collects the profiles of those  who enter individual law schools.  Although there is no current possibility that the profile of all law school graduates can be identified, the profiles of WMU-Cooley graduates have been quite consistent during the period from 2009 to 2015, with only negligible changes from year to year.  The decline in bar passage rates at WMU-Cooley that coincided with the national downturn in 2012 cannot be attributed to a decline in the profile of WMU-Cooley graduates. 

WMU-Cooley, like many schools today, strongly desires to see improvement in its bar passage rates.  Like those schools, our school is actively working to accomplish that goal.  Assertions that we should have better bar results are painful, but appropriate, criticism.  

But the most recent attack on our law school, while exceeding painful, is inappropriate, demonstrates a lack of journalistic integrity, and constitutes a harmful example of using ignorance as a weapon, if not of actual malice.  The criticism includes numerous errors and misstatements, incorrectly asserts that our Michigan passing rates do not meet the ABA Standard, erroneously analyzes bar examination data, and demonstrates inexcusable ignorance of the ABA Standard’s regarding bar passage requirements.

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