August 1, 2001 Jan Pudlow Associate Editor Regular News Raising the bar passing standard Associate Editor Noel G. Lawrence, the lone member of the Florida Board of Bar Examiners to vote against raising the pass/fail line, has submitted data to the Florida Supreme Court bolstering his argument that such a move would have a negative impact on minorities trying to become lawyers. According to the data submitted by Lawrence, at the current 131 pass/fail line, all minority first-time test-takers had a 58-percent passage rate, raising the pass/file line to 133 dropped it to 48 percent, and raising it further to 136 showed only 42 percent would have passed.Breaking it down further by ethnic groups, the data showed at the current 131 pass/file line, black first-time test-takers had a 53-percent passage rate, but dropped to 45 percent at 133, and 38 percent at 136.For Hispanic first-time test-takers, the data showed that at the current 131 pass/file line, 65 percent passed, raising the line to 133 showed 55 percent passed, and raising it further to 136 showed 53 percent passed.For white first-time test takers, 74 percent passed at 131, 69 percent passed at 133, and 61 percent passed at 136.“The stats speak for themselves,” said Thomas Pobjecky, general counsel for the Board of Bar Examiners. “February is a much smaller exam, so I anticipate in the very near future asking the court to allow us to analyze the July (2000) exam, which is about twice the size.”But the numbers won’t dissuade the Board of Bar Examiners from pursuing its petition to the court, Pobjecky said.Oral arguments are set for October in the controversial case. The Board of Bar Examiners’ proposal is being challenged by a group of Florida’s law school deans (except Florida State University’s Dean Don Weidner), the Florida State Conference of NAACP branches, and Lawrence, who is also the new president of the Virgil Hawkins Chapter of the National Bar Association.The Florida Bar and one individual, Assistant State Attorney Kevin Frein from Broward County, commented in favor of the Bar Examiners’ proposal. Based upon the recommendation of a special study committee, the Bar’s Board of Governors at its April 2, 2000, meeting “resolved to support the petition of the Florida Board of Bar Examiners in this matter, provided that adequate consideration be given to whether any of the proposed rules in this filing would disproportionately affect minorities or otherwise unduly impact minority access to the profession.” There has been no further comment or action by the Board of Governors since then.Citing its main reason as “ensuring the protection of the public,” the Board of Bar Examiners petitioned the court in 1999 to raise the “minimal competency level” on the multiple choice sections from the current 131 score (56 percent correct) to 136 (59 percent) over a two-year period, saying the initial increase to 133 would return the pass/fail line to the place it was 19 years ago. At 136, the examiners argue, there are currently 12 jurisdictions that have a pass/fail line higher than that, with California and Delaware topping the list at 144.Reasons to Raise the Bar Overall, the bar examiners argue, there is no empirical basis for the current pass/fail line of 131. The board undertook a “good-faith study. . . with the guidance of a nationally renowned expert in the field” to justify raising the pass-fail line, Pobjecky said in court documents.The board’s expert, Stephen Klein, a nationally recognized psychometrician from the Rand Corporation in California, was asked what happens to minority bar exam takers when the pass/fail line is changed.“Generally, what we have seen is the effect is constant across groups,” Klein answered. “That is, you lower the standards, you pass more people in both minority and nonminority groups. If you raise standards, you will see a slight drop initially, but not eventually.”It has been his experience that whenever bar exam standards are raised, students will adjust their efforts to meet the new standards, Klein said.“Nationally, about 93 percent who take the bar exam will eventually pass it,” said Klein, noting that the bar only tests minimal competency.In an article Klein wrote, quoted in Pobjecky’s reply filed with the court, he said: “On average, members of racial/ethnic minority groups do less well on the bar exam than their classmates. This finding has held up in every jurisdiction that has examined the passing rates of different groups. The size of these disparities varies from state to state as a function of several factors (such as whether first-timer or eventual passing rates are studied). Nevertheless, it is clear that no matter how the computations are made, minority applicants and especially blacks have significantly lower passage rates than whites.“Over the past 25 years, several studies have investigated many potential sources of the differences in passing rates among racial/ethnic groups. These studies have found that the disparities are not a function of certain questions or types of questions, subject matter areas covered by the exam, test format (essay, multiple-choice or performance), the racial or ethnic group of the lawyers who grade the essay answers, the time limits imposed, or even the types of law schools from which the applicants graduate. None of these factors have a significant effect on the differences in passage rates between groups,” Klein wrote.“What does matter is the applicant’s mastery of the law as indicated by the knowledge and abilities that are needed to do well in law school. In short, the differences in passing rates among racial/ethnic groups stem from differences in their legal skills and abilities, rather than from some unique feature of the test. The exam works about the same way for everyone.”The board’s counsel, Pobjecky, went on to argue that a six-year-long national study by the Law School Admission Council that tracked 27,000 students entering law school in 1991 corroborates Klein’s findings.Among the LSAC findings, Pobjecky said, were that the eventual passage rate for all study participants of color was 84.7 percent; both law school grade point average and LSAT scores were the strongest predictors of bar exam passage for all groups studied; and a series of background variables — such as academic expectations of self, language spoken in the home, and need to work for pay during school _ showed no relationship to failing the bar exam.A Tougher Test Won’t Better Protect the Public But critics of the Bar Examiner’s petition argue 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.“California requires 144. Is there any suggestion or any evidence to support the proposition that lawyers in California are more competent and more ethical than lawyers in Florida?” asked Joseph Harbaugh, dean of Nova Southeastern University’s law school, who plans to make oral arguments in October. Noel Lawrence Joseph Harbaugh “Because we have had for 19 years what appears to be an appropriate standard, those who would argue it should be changed have a heavy burden to demonstrate there is a need.” Making the test tougher to pass would shut the door on more minorities when there is already a dearth of minority lawyers in ethnically diverse Florida, the critics charge. Raising the bar passing standard Those reasons greatly concerned Lawrence when he cast the sole vote against raising the bar exam pass/fail line at the board’s October 1999 marathon meeting that ended at 10 p.m.“On that body, we frequently have fair and feisty debates,” Lawrence said. “And we’re always able to remain collegial.”That he was allowed to file his minority report, Lawrence said, was “unprecedented and phenomenal.”In his minority report, filed with the court November 29, 1999, Lawrence outlined his many concerns, including “unfairness to minorities.”“There is presently a dearth of minority lawyers in the state, and to furtherexacerbate the problem by increasing the passing standard would certainly cause concern. Increasing the passing score would most likely result in a smaller proportion of qualified minorities being admitted to the Bar. There has been little or no study done on this issue by the board in the past five years,” Lawrence wrote.The Need to Gather Racial and Ethnic Data At the same time the board voted to raise the pass/fail line, it voted to request permission from the Supreme Court to begin immediately collecting information on the race or ethnicity of bar applicants. That was done with “the eventual goal that disparate impact on minorities in the future may warrant a lowering of the pass/fail line,” Lawrence continued.“Studying the issue further using actual and current data on minority applicants would be a more responsible and prudent approach. There is a dire need for the latter course of action, given the fact that all ethnic data relied on by the majority (and the board’s expert, Klein) evolved from 1991 examination results.”The briefs filed in case no. 96,869 — found at www.flcourts.org/pubinfo/summaries/briefs/out/96869.html — provide a spirited debate on dueling experts, their methodologies, and justifications for maintaining or changing the status quo.In what Gregory Murphy, chair of the National Conference of Bar Examiners, called a “provocative address challenging bar examiners,” Harbaugh gave a speech in Madison, Wisconsin, in May, titled, “Partners at the Gate: Legal Educators and Bar Examiners Working Together to Diversify the Profession.”“We respectfully request those contemplating change to resist the Lake Wobegon syndrome, to look beyond your state’s position on the list of MBE passing scores,” Harbaugh told the national bar examiners.“Your charge is to set the score that measures minimum competence. Consider please that the MBE, as a finely tuned standardized test, measures the competence of applicants today according to the same criteria it measured the competence of lawyers in years gone by. Unless you have evidence of incompetence on the part of a significant number of attorneys admitted in the past five, 10, or, as in the case of Florida, the last 19 years under the existing MBE standard; and unless you have evidence that most of these incompetent lawyers had bar exam scores between the present and the proposed cut-off, it doesn’t appear to us that you have prima facie evidence that the passing score in your jurisdiction should be raised.“Before ratcheting up the pass line, you owe it to the public, the Bar, and the law students who hope to join the profession in your state to study if there is any relationship between the score earned on the bar exam and a later finding of lawyer incompetence.”Harbaugh, who said many states are watching what happens in Florida, told the national group of bar examiners: “What is demoralizing to us in legal education, to our minority students, and I am sure, to you in the bar-examining community, is the number of trained legal minds that are being wasted. It’s sad when one in 30 white graduates fails to join the profession; it’s devastating when one in five of our black graduates is lost.”In the Florida Board of Bar Examiners’ reply to comments filed with the court, Pobjecky quotes Harry Truman, Shakespeare, Aldous Huxley, and what he calls the “homespun wisdom” of Harbaugh when he recommended that performance testing should become a part of the bar exam:“Having given you candid responses to the questions earlier posed, permit me to reform the ‘ain’t broke, don’t fix’ proverb in the following way: Tinker with somethin’ that ain’t broke only if you’re dang sure it’s gonna run a lot better.”And the board’s Pobjecky seized upon Harbaugh’s quote to say: “Having no empirical basis for the existing pass/fail line of 131, the board engaged in a good-faith study of such issues with the guidance of a nationally renowned expert in the field. Having replied to the comments in opposition to its proposal, the board remains ‘dang sure’ that its recommended increase to the pass/fail standard is scientifically sound, reasonable, and fair.” “It’s what I suspected all along. But I didn’t know or have any clue until the court gave us permission to collect that information,” said Lawrence, who filed demographic results on race and national origin/ethnicity of test-takers of the February 2000 bar exam on June 21. It’s the first time demographic information has been kept on bar exam test-takers since the ’70s, and those numbers for the February 2000 exam show that the higher the pass/fail line is raised, the fewer percentage of minorities will pass, and hardest hit are blacks.