Pictured: California Supreme Court responding to petitions from law school deans.
California put out its final order regarding the new bar exam regime and it’s mostly what we expected. An online examination on October 5-6 and a permanently lowered passing score from 1440 to 1390. Given how the online exams around the country are going, maybe we’re jumping the gun to call this the “final order.” Let’s just say this is what they expect to be the final order before the September 30 emergency order asking applicants to just submit dioramas of the fact pattern in Palsgraf for evaluation.
One thing that’s not in the order is a commitment to apply the new 1390 score retroactively as multiple law school deans and applicants requested. In a separate letter from Executive Officer of the Court Jorge Navarrete to the state bar, the supreme court explained that it was not honoring the request because “With one exception, the court is unaware of any jurisdiction in the past decade that has lowered the exam passing score and applied that decision retroactively.”
True… but it’s the only relevant change in the last decade. Montana lowered its cut score a few years ago and made it retroactive to three years. The only other cut score changes that are dancing about are COVID-specific temporary changes — like North Carolina dropping the score by two for the July administration — that reflect the expectation of lower scores during a pandemic rather than a new philosophy on grading. However, California isn’t making a temporary change, it’s doing what Montana did and executing a go-forward declaration. To escape this wrinkle, Navarrete’s article claims the Montana move was designed to offset an earlier cut score increase, while California hasn’t changed its cut score in years.
Yet, the fact of the matter is that looking to other states was the weakest argument raised in favor of retroactivity and the powers-that-be have taken this flimsy shield and turned it into a sword. None of these experiences in other states are controlling and these circumstances arise so rarely that precedent is about as a useful as haruspicy. The Montana analogy was so tangential that I didn’t even mention it my earlier review of the motions seeking retroactivity.
I guess the lesson here is not to give courts shaky arguments they can hang a decision on.
Because the court’s letter only offers a quick aside distinguishing the Montana situation while ignoring the better arguments: (1) that people who took the test in February have a recent enough score to dispel any question of competency and (2) that California accepts scores for FIVE YEARS in the status quo so if a 1450 grade in 2016 is considered a 1450 in 2020 why wouldn’t a 1390 in 2016 be counted as a 1390 in 2020? California could take the position that scores are only fresh until the next administration of the exam, but they don’t. That respect for the durability of a score’s measure of an applicant should cut both ways.
Honestly, I was opposed to the idea of retroactivity before reading these petitions. I was sympathetic to the cause but thought, for better or worse, lines have to be drawn somewhere and the burden would be high to convince me that a score achieved under a different regime should count without opening the administrative hassle floodgates. But when I forced myself to come up with responses to the arguments raised I realized there weren’t good responses to be had. They already explicitly accept stale scores — I just couldn’t explain away why it wouldn’t apply universally. Not only do I suspect the state supreme court never bothered to grapple with this argument, the fact that they went out of their way to avoid mentioning the issue all but confirms it.
Questioning a supreme court’s licensing policy is apparently like asking a robot to define love because smoke just starts coming out of their ears while they wildly repeat “Montana is different!”
That the court mentions NEITHER of these better arguments raised in the petitions should trouble everyone, especially as it’s indicative of the adjudicative laziness that’s impacted several state supreme courts around the country. Sound reasoning doesn’t take a holiday just because the question is within the control of the judicial branch. All anyone’s asking is for the court to have the basic sense of work ethic to address the actual arguments on the page instead of sending the Clerk of the Court out to write a glib dismissal in a letter to the state bar.
But assuming the bar exam is different is better than considering the alternative — that these supreme courts routinely lack a disciplined approach to adjudicating the matters before them.
California Supreme Court Issues Order Finalizing Lower Passing Score for Future Bar Exam Takers [California Courts]
Earlier: Deans And Bar Applicants Ask California To Apply New Lower Cut Score Retroactively
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.