April 13, 2003

Case for a Tougher Bar Exam Prompts a Forceful Rebuttal

By SUSAN SAULNY
The New York Times


A proposal by the New York State Board of Law Examiners to raise the minimum passing score for the bar exam is drawing a chorus of opposition from legal experts, bar associations and all 15 of New York's law school deans.

The board wants to increase the score on the basis of a study concluding that New York's threshold is "below the current standard of minimum competence," according to Diane Bosse, its chairwoman. The board is seeking a 15-point increase in the score, to 675 out of 1,000 points, calling it a "modest proposal."

Ms. Bosse said the state was not acting on any specific data that show rising incompetence among candidates for the bar. Rather, she said, the current standard was set more than 20 years ago, and testing experts recommend periodically reaffirming the validity of the test.

"It's an appropriate thing to do in testing to re-evaluate your standard to make sure it's kept pace with the standards of minimum competency in the profession," she said.

The proposal, issued last year, has stirred vigorous debate recently; critics are calling it a poorly timed, poorly conceived idea that will not necessarily produce better lawyers.

They have issued their own reports, and maintain that an increase in the passing score will only worsen what some see as problems with bar exams: they measure a lawyer's capacity for memorization rather than skill or command of important concepts, and because the tests are standardized, members of minority groups, particularly blacks, tend to do worse than whites.

The law examiners' report said that one reason to raise the minimum score was that New Jersey, Pennsylvania and Connecticut have a higher standard, as do many other states that are "akin to New York in their commercial and industrial features." It also said the passing standard "should err on the side of being too high rather than too low."

But that reasoning has drawn particularly harsh criticism.

"What's the underlying motive?" said Lawrence M. Grosberg, the chairman of the Committee on Legal Education of the City Bar Association and a professor at New York Law School. "It's a race to the top to make the exam harder because other states are. The committee submitted a report criticizing the plan.

"There's almost a machismo here, that no other state will have an exam harder than New York," he added. "But the exam is already hard."

Many law students consider New York's bar exam the most formidable. Over the past several years, the Board of Law Examiners has reported a gradual decline in the number of law school graduates who pass the two-day test of essay and multiple-choice questions. The 2002 scores were among the lowest in many years, with only 68 percent passing the test given last July.

Critics also say the board has not adequately studied the effect of a scoring change. Richard Matasar, dean of New York Law School, said the change would amount to a "social experiment where real lives are going to be affected, and we don't know what the outcome is going to be."

Law students said they were worried. "It seems you need to have a strong policy argument for making a change that has the potential to affect so many people without any proof that it will accomplish the change that you want," said Clarissa Jones, a Georgetown University Law Center student who plans to take the New York bar exam in July.

Her friend Tanya Messado, also a law student, said: "I'm already freaked out about the New York bar because so many people fail. It's one of the hardest to take."

Ms. Jones and Ms. Messado said they feared that the people most likely to be rewarded by a higher passing score would be those with the most experience taking standardized tests, like science majors.

Critics also contend that the study makes assumptions about "minimum competence" without defining it.

"Fifteen law school deans never agree on anything, so getting all of us in New York to agree was a minor miracle," Dean Matasar said. "All of us are legal educators and have strong feelings about consumer protection, but we also feel that there is a high burden to place on people who want to impose barriers on people who want to become lawyers, especially since it has not been proven that anything has gone wrong over the past 20 years."

Robert MacCrate, a partner at Sullivan & Cromwell and a former president of the American Bar Association, said the proposal "couldn't be more ill timed."

"To have this proposal out there when the results of the July exam came in, you can see why the deans just blew their tops," he said.

Philip Shelton, president of the Law School Admissions Council, which administers the L.S.A.T., the law school admissions test, said he wondered why the board believed that its scoring was not on par with the profession's standards.

"Unless there's been some demonstrable indication that the quality of the lawyers in New York has diminished or is otherwise coming up short," he said, "it's hard to see what the argument is."

Another criticism focuses on the proposed change's effect on members of minority groups and candidates who cannot afford to pay for extra preparation classes, which have grown increasingly popular and can cost thousands of dollars.

In its report, the board acknowledged that raising the score would probably lower passing rates for all groups, but said that predictions of dire effects on minority test-takers were speculative.

Many states have raised their passing scores over the years. Bar examiners in Minnesota recently withdrew a proposal to raise the score there, "given the breadth of criticism," said Margaret Corneille, the director of the Minnesota Board of Law Examiners.

Ms. Bosse said there was no timetable for a decision. Any change in scoring would require the approval of the Court of Appeals, the state's highest court.