While California’s decision to move to an online exam responded to the most pressing crisis facing the state, the simultaneously announced decision to permanently reduce its cut score from 144 to 139 (which they write as 1440 and 1390, but let’s use the language everyone else does) represented the culmination of a more significant, longer-term fight in the state. The state’s cut score — far higher than all but a handful of jurisdictions — had artificially capped the population of lawyers in a state with a massive access to justice gap and, in practice, tended to exacerbate the profession’s lack of diversity. After resisting calls to make the change for years, California finally made a move.
And it bears repeating that this is a permanent reduction. When other states announce reductions these days, like North Carolina’s 2-point deduction, these are temporary adjustments designed to maintain the state’s pre-approved failure rate. Despite billing themselves as tests of “minimum competency,” bar exams are not like the driving test. Instead the examiners set the cut score based on their assessment of how many people will pass and fail at that threshold. The goal is self-justification, to maintain a test with enough failures to make the test appear to be performing necessary gatekeeping. North Carolina’s deduction, or Hawai’i’s 1-point deduction are temporary adjustments based on their belief that scores will be slightly down under current conditions rather than a philosophical shift.
But almost immediately after the announcement, folks started asking, “what about my prior 140 score?” What would be done with the years and years of applicants who met the new 139 standard. And make no mistake, the 139 standard is still a high bar — New York and DC, for example, use a 133.
Now there are petitions heading to the California Supreme Court to resolve this question. There are two different approaches advocated by these petitions.
The more focused petition seeks a retroactive application to the February 2020 administration of the exam. This letter from the deans of 19 California law schools cites the recency of the now-passing result and the lack of a public purpose in making them duplicate the result within the span of a few months. Beyond the deans’ arguments on behalf of the students and profession, it’s a pretty compelling option for the bar examiners themselves. While running an online exam in the midst of a pandemic, taking a big number of potential examinees out of the grading pile would be a win for the examiners.
While drawing the line at tests in 2020 offers the strong recency argument, the deans point out that this is just their baseline request. Another petition requests retroactivity back to 2017.
Citing the fact that the exam itself is, according to its own defenders, not any more difficult than it was in 2017, then there’s no reason not to accept the, again very high, 139+ scores from back then. It’s an argument functionally supported by California’s existing policy allowing people to apply for admission based on 5-year-old bar scores — if a 144 in 2017 is the same as a 144 in 2020, then why wouldn’t a 139 in 2017 carry the same weight as a 139 in 2020? For anyone wondering “where do we draw the line?” the fact that the state already employs a five-year window as the standard for a non-stale bar exam result seems like a good line and anything less than that would seem to be a no-brainer.
It’s easy for folks to dismiss these requests at first blush. Our brains are a little too accustomed to criminal law thinking and holding the line at “it wasn’t legal when you did it!” But the arguments lined up in these petitions are compelling. I went into this article behind the 2020 extension but skeptical of pushing it back beyond that, but the state’s current policy of honoring 5-year-old scores seems dispositive.
The powers-that-be should respond to these requests quickly.
But it took them several years and a global pandemic to deal with the cut score in the first place so maybe a rapid response is too much to ask.
California Law Deans Ask for Retroactive Cut in Bar Score [UC Hastings]
Earlier: California Bar Exam Moves Online… And Finally Lowers Cut Score
Law Schools Rip Bar Exam Cut Score Recommendations
This Is What A Socially Distanced Bar Exam Looks Like… Do You Feel Safe?
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.