Aba nba capitol hill briefing study (revised jan 27 2014)

Analysis of the Data Justification for Proposed Standard 316 And the Disparate Impact of this Proposed Standard on Law Schools that Graduate Large Numbers of Students of Color

Executive Summary 1.

We understand that the ABA Standards Review Committee (SRC) is considering a proposed bar passage standard that would subject an ABA-approved school to an immediate Rule 13(b) sanctions hearing, the first step in revoking a school’s accreditation, if a single, calendar-year cohort of graduates fails to achieve an ultimate bar passage rate of at least 75% of the graduates who sit for the exam within two calendar years after their year of graduation.

Currently, a school need only show that three out of the past five graduating classes met this mark or that the graduates from the past five years achieved an average ultimate pass rate of 75%.

2.

The proposed standard would also increase the percentage of graduates that a school must obtain bar results for from 70% to 80%, would count graduates who pass the exam more than two years out as failers, and would count non-persisters, who take the exam once, fail, and then give up as failers, all contrary to the current standard.

3.

Over the past five years, overall national pass rates, including repeat takers, have been no higher than 76% in 2008 and have steadily declined to a low of 71% in 2012, the most recent year for which data is available.

4.

Over the past five years, 30 jurisdictions had annual pass rates that fell below 75% in at least one year; 24 jurisdictions fell below the 75% mark in at least two years; 18 jurisdictions fell below 75% in three or more years; and 12 jurisdictions fell below 75% in all five years. It is fundamentally unfair to fail to take these differences into account by adopting a rigid and inflexible standard that holds a school to be out of compliance if even a single calendar-year cohort of graduates fails to hit the 75% mark.

5.

The SRC’s proffered data justification is further flawed by the wide fluctuations in pass rates that occur from one year to the next, even within the same jurisdiction. Over the past five years, 10 jurisdictions had annual pass rate fluctuations of at least 10% or more, and the most populous state in the group, Michigan, had an annual pass rate fluctuation exceeding 20%.

6.

Despite the unevenness of this bar results playing field, Proposed Standard 316 would subject a school to a Rule 13(b) sanctions hearing, the first step in revoking a school’s accreditation, if just one calendar year cohort of graduates failed to achieve a 75% ultimate pass rate among those graduates who sat for a bar examination, regardless of the pass rates in the jurisdictions where the school’s graduates sat for the examination.

7.

A detailed analysis of the pass rates of particular schools in particular jurisdictions shows that because of the unevenness of the bar exam playing field, together with the geographic accident of where most of a school’s graduates happen to sit for the bar exam, most of the schools that graduate the largest number of African American, Hispanic, and Asian students face a disadvantage because their graduates sit for the bar in more challenging jurisdictions where the pass rates are frequently less than 75%, while the graduates of many predominantly Caucasian schools have the advantage of sitting for the bar in less challenging jurisdictions with pass rates that consistently exceed 80%.

2

8.

While these are not ultimate pass rates, the absence of any hard data about ultimate pass rates makes this data the best available to judge the potential impact of increasing the 75% requirement.

9.

This disparate impact is arbitrarily unfair, violates the American Bar Association’s longstanding commitment to diversity as a core value of the association, and violates the spirit, if not the letter, of the Section of Legal Education’s corresponding commitment, as expressed in Standards 211 and 212 dealing with non-discrimination, equality of opportunity, and diversity.

And it is why the SRC bears the burden of conducting an ultimate pass rate study of the pass rates achieved by particular schools in particular jurisdictions before moving forward on its proposal. Otherwise, it risks unintentionally discriminating against schools that graduate large numbers of students of color.

3

Analysis of the Data Justification for Proposed Standard 316 The ABA Standards Review Committee (SRC) has proposed a new bar passage standard (Proposed Standard 316) that would subject an ABA-approved school to an immediate Rule 13(b) sanctions hearing, the first step in revoking a school’s accreditation, if a single, calendaryear cohort of graduates fails to achieve an ultimate bar passage rate of at least 75% of the graduates who sit for the exam within two calendar years after their year of graduation.

If one examines overall pass rates for graduates of ABA-approved schools, including both first-time and repeat takers, as Table One below shows, overall pass rates over the past five years have consistently ranged in the low to middle 70’s, with a five-year average of 74%, and these pass rates have steadily declined from a high of 76% in 2008 to a low of 71% in 2012.1 Table One – Overall, Annual National Pass Rates for Graduates of ABA-Approved Schools (2008-2012)2 Year

Taking

Passing

% Passing

2008 2009 2010 2011 2012 Totals

70,172 68,887 69,710 70,382 72,747 351,898

53,186 50,905 51,252 52,309 51,959 259,611

76% 74% 74% 74% 71% 74%

Another significant flaw in the SRC’s proffered justification is that aggregate national pass rates, whether of first-time takers or overall, mask wide variations in pass rates from jurisdiction to jurisdiction, which may either unfairly favor schools in states with higher pass rates or unfairly discriminate against schools in states with lower pass rates. The graduates of ABA-approved schools do not take a national bar exam with uniform scaling and a uniform national cut score. Instead, they take the bar in particular jurisdictions, in which the playing field is far from level, as Table Two below shows.

Table Two – Overall Annual Jurisdiction-Wide Pass Rates 1

The inclusion of repeat takers in this analysis is appropriate given the focus of Proposed Standard 316 on ultimate pass rates.

2

All data in this table is taken from the annual National Conference of Bar Examiners published statistics for “Persons Taking and Passing the Bar Examination by Source of Legal Education.” See NCBE Publications, Bar Examination and Admission Statistics, found at www.ncbex.org

4

for Graduates of ABA-Approved Schools (2008-2011)3 Jurisdiction

2008

2009

2010

2011

2012

Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware D.C. Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada N. H. New Jersey New Mexico New York N. Carolina N. Dakota

86% 70% 77% 72% 65% 73% 81% 73% 61% 71% 81% 76% 72% 85% 78% 85% 86% 77% 65% 86% 75% 87% 72% 87% 82% 88% 91% 84% 64% 88% 77% 85% 80% 71% 77%

84% 59% 73% 67% 60% 75% 79% 63% 55% 68% 78% 77% 81% 84% 75% 88% 82% 77% 71% 77% 69% 84% 81% 85% 78% 87% 87% 78% 61% 86% 77% 84% 78% 67% 80%

81% 71% 73% 65% 60% 74% 77% 66% 47% 69% 77% 69% 78% 84% 75% 87% 84% 77% 62% 87% 71% 85% 80% 86% 76% 87% 89% 81% 59% 81% 76% 81% 77% 68% 78%

83% 59% 70% 71% 61% 79% 77% 67% 58% 72% 77% 75% 79% 84% 74% 84% 86% 80% 67% 68% 74% 84% 76% 88% 73% 90% 90% 78% 65% 79% 77% 82% 77% 70% 83%

84% 67% 75% 68% 61% 77% 77% 63% 60% 71% 76% 68% 80% 82% 72% 88% 84% 76% 60% 69% 71% 81% 58% 85% 72% 89% 91% 73% 64% 85% 71% 84% 73% 65% 78%

3

All data in this table is also taken from the annual National Conference of Bar Examiners published statistics for “Persons Taking and Passing the Bar Examination by Source of Legal Education.� See NCBE Publications, Bar Examination and Admission Statistics, found at www.ncbex.org.

5

Jurisdiction

2008

2009

2010

2011

2012

Ohio Oklahoma Oregon Pennsylvania Rhode Island S. Carolina S. Dakota Tennessee Texas Utah Vermont Virginia Washington West Virginia Wisconsin Wyoming

80% 89% 71% 77% 76% 75% 88% 84% 78% 83% 70% 76% 73% 67% 89% 64%

77% 80% 69% 76% 75% 72% 83% 76% 78% 83% 72% 70% 68% 73% 89% 75%

79% 82% 68% 74% 77% 73% 94% 79% 76% 83% 79% 71% 72% 65% 91% 71%

79% 83% 69% 77% 72% 73% 94% 75% 80% 84% 70% 74% 67% 74% 85% 62%

77% 80% 73% 73% 78% 67% 83% 75% 75% 77% 71% 71% 65% 72% 84% 53%

Despite the obvious unevenness of this playing field from one jurisdiction to the next, Proposed Standard 316 would subject a school to a Rule 13(b) sanctions hearing if just one calendar year cohort of graduates failed to achieve a 75% ultimate pass rate among those graduates who sat for a bar examination, regardless of the pass rates in the jurisdictions where the school’s graduates sat for the examination. Significantly, over the five-year period profiled in Table Two, above: •

30 jurisdictions had annual pass rates that fell below 75% in at least one year;4

•

24 jurisdictions fell below the 75% mark in at least two years;5

•

18 jurisdictions fell below 75% in three or more years;6

4

These 30 jurisdictions (and the number of years they fell below 75%) were Alaska (5), Arizona (3), Arkansas (5), California (5), Colorado (2), Delaware (5), District of Columbia (5), Florida (5), Hawaii (2), Idaho (1), Indiana (1), Louisiana (5), Maine (2), Maryland (4), Michigan (2), Mississippi (2), Nebraska (1), Nevada (5), New Jersey (1), New York (1), North Carolina (5), Oregon (5), Pennsylvania (2), Rhode Island (1), South Carolina (4), Vermont (4), Virginia (4), Washington (5), West Virginia (5), and Wyoming (4).

5

These 24 jurisdictions (and the number of years they fell below 75%) were Alaska (5), Arizona (3), Arkansas (5), California (5), Colorado (2), Delaware (5), District of Columbia (5), Florida (5), Hawaii (2), Louisiana (5), Maine (2), Maryland (4), Michigan (2), Mississippi (2), Nevada (5), North Carolina (5), Oregon (5), Pennsylvania (2), South Carolina (4), Vermont (4), Virginia (4), Washington (5), West Virginia (5), and Wyoming (4).

6

These 18 jurisdictions (and the number of years they fell below 75%) were Alaska (5), Arizona (3), Arkansas (5), California (5), Delaware (5), District of Columbia (5), Florida (5), Louisiana (5), Maryland (4), Nevada (5), North Carolina (5), Oregon (5), South Carolina (4), Vermont (4), Virginia (4), Washington (5), West Virginia (5), and Wyoming (4).

6

•

And 12 jurisdictions fell below 75% in all five years.7

It is fundamentally unfair to fail to take these differences into account by adopting a rigid and inflexible standard that holds a school to be out of compliance if even a single calendar-year cohort of graduates fails to hit the 75% mark.

A final significant flaw in the SRC’s proffered justification is the wide fluctuations in pass rates that occur from one year to the next, even within the same jurisdiction. Over the fiveyear period profiled in Table Two above, ten jurisdictions had annual pass rate fluctuations of at least 10% or more,8 and the most populous state in the group, Michigan, had an annual pass rate fluctuation exceeding 20%.9 Despite these year-to-year deviations, a school in one of these states would face a Rule 13(b) sanctions hearing and the potential loss of its accreditation if a single calendar year cohort of graduates failed to hit the 75% mark within two calendar years after the year of their graduation, even if the reason why was a significant drop-off in statewide pass rates due to the examination or its scoring in one of those years.

The Disparate Impact of Proposed Standard 316 on Law Schools that Graduate Large Numbers of Students of Color Despite repeated requests by many different organizations, including the Congressional Black, Hispanic, Asian Pacific, and Progressive Caucuses,10 neither the SRC nor the ABA Section of Legal Education’s Office of the Managing Director, so far as anyone is aware, have invested the time and effort to conduct a careful study of the potential impact of Proposed Standard 316 on schools that graduate large numbers of students of color, even though the Section possesses the only ultimate pass rate data available to undertake such a study.

In the absence of such a study, and without access to this data, the only way to try and gauge the fairness of the proposed standard is to examine the jurisdiction-wide bar passage rates of these schools in the particular jurisdictions where most of their graduates sit for the bar examination, and then compare this to the jurisdiction-wide pass rates of predominantly Caucasian schools in the particular jurisdictions where most of their graduates sit for the examination.

7

These 12 jurisdictions were Alaska (5), Arkansas (5), California (5), Delaware (5), District of Columbia (5), Florida (5), Louisiana (5), Nevada (5), North Carolina (5), Oregon (5), Washington (5), and West Virginia (5).

8

These 12 jurisdictions (and their lowest and highest pass rates) were: Alaska (59%-71%), Delaware (63%-73%), District of Columbia (47%-61%), Louisiana (60%-71%), Maine (68%-87%), Michigan (58%-81%), Mississippi (72%-82%), Nebraska (73%-84%), S. Dakota (83%-94%), and Wyoming (53%-75%).

9

Michigan’s pass rate ranged from a low of 58% in 2012 to a high of 81% in 2009, a 23 percentage-point differential, which was the worst in the country.

10

See the Congressional Tri-Caucus - Progressive Caucus letters of June 26, 2013 and October 9, 2013 to the SRC, posted in the comments section of the SRC’s web site, both of which have been ignored.

7

The tables below provide this information for each of the six law schools that are associated with Historically Black Colleges and Universities, for each of the top five graduate producing schools in each of the other racial and ethnic categories tracked by the ABA, and for seven predominantly Caucasian schools in high passage rate jurisdictions.

Each table shows the annual jurisdiction-wide bar passage rates in the jurisdictions where at least 10 graduates from the school sat for the exam during the years 2008-2012. The numbers of graduates and the jurisdictions in which they sat for the bar come from the available data in the last five annual editions of the ABA Official Guide to Law Schools.11 All pass rate data in these tables is taken from the annual National Conference of Bar Examiners published statistics for “Persons Taking and Passing the Bar Examination by Source of Legal Education,” compiled in Table Two above, which uses the pass rate data for graduates of ABA-approved schools.

Law Schools Associated with Historically Black Colleges and Universities The tables in this section are organized according to the number of African American graduates produced by each school in the five-year period of 2008-2012, in descending order starting with the school that produced the most African American graduates.

Howard University (568 African American Graduates) According to the available ABA Official Guide data, the five jurisdictions in which Howard had at least ten graduates sit for the bar examination during this five-year period, in descending order starting with the jurisdiction where the most graduates sat for the bar, were Maryland (217 graduates), New York (196 graduates), Virginia (33 graduates), California (28 graduates), and New Jersey (20 graduates). Table Three below shows the annual jurisdictionwide bar passage rates for each of these jurisdictions for each of the five years.

Table Three – Overall Annual Jurisdiction-Wide Pass Rates for the Jurisdictions in Which at Least Ten Howard Graduates Sat for the Bar (2008-2011) Jurisdiction

2008

2009

2010

2011

2012

MD (217) NY (196) VA (33) CA (28) NJ (20)

75% 80% 76% 65% 77%

69% 78% 70% 60% 77%

71% 77% 71% 60% 76%

74% 77% 74% 61% 77%

71% 73% 71% 61% 71%

Texas Southern University (421 African American Graduates) 11

These were the 2010-2014 annual editions, which track data for the years 2008-2012.

8

According to the available ABA Official Guide data, the only jurisdiction in which Texas Southern had at least ten graduates sit for the bar examination during this five-year period was Texas (741 graduates). Table Four below shows the annual jurisdiction-wide bar passage rate for this jurisdiction for each of the five years.

Table Four – Overall Annual Jurisdiction-Wide Pass Rates for the Jurisdiction in Which at Least Ten Texas Southern Graduates Sat for the Bar (2008-2011) Jurisdiction

2008

2009

2010

2011

2012

TX (741)

78%

78%

76%

80%

75%

North Carolina Central University (400 African American Graduates) According to the available ABA Official Guide data, the only jurisdiction in which North Carolina Central had at least ten graduates sit for the bar examination during this five-year period was North Carolina (613 graduates). Table Five below shows the annual jurisdiction-wide bar passage rate for this jurisdiction for each of the five years.

Table Five – Overall Annual Jurisdiction-Wide Pass Rates for the Jurisdiction in Which at Least Ten North Carolina Central Graduates Sat for the Bar (2008-2011) Jurisdiction

2008

2009

2010

2011

2012

NC (613)

71%

67%

68%

70%

65%

Southern University (390 African American Graduates) According to the available ABA Official Guide data, the only jurisdiction in which Southern had at least ten graduates sit for the bar examination during this five-year period was Louisiana (396 graduates). Table Six below shows the annual jurisdiction-wide bar passage rate for this jurisdiction for each of the five years.

Table Six – Overall Annual Jurisdiction-Wide Pass Rates for the Jurisdiction in Which at Least Ten Southern Graduates Sat for the Bar (2008-2011) Jurisdiction

2008

2009

2010

LA (396) 65% 71% 62% Florida A & M University (344 African American Graduates)

9

2011

2012

67%

60%

According to the available ABA Official Guide data, the only jurisdiction in which Florida A & M had at least ten graduates sit for the bar examination during this five-year period was Florida (590 graduates). Table Seven below shows the annual jurisdiction-wide bar passage rate for this jurisdiction for each of the five years.

Table Seven – Overall Annual Jurisdiction-Wide Pass Rates for the Jurisdiction in Which at Least Ten Florida A & M Graduates Sat for the Bar (2008-2011) Jurisdiction

2008

2009

2010

2011

2012

FL (590)

71%

68%

69%

72%

71%

University of the District of Columbia (113 African American Graduates) According to the available ABA Official Guide data, the four jurisdictions in which District of Columbia had at least ten graduates sit for the bar examination during this five-year period, in descending order from the jurisdiction where the most graduates sat for the bar, were Maryland (143 graduates), District of Columbia (47 graduates), Virginia (46 graduates), and New York (14 graduates). Table Eight below shows the annual jurisdiction-wide bar passage rates for each of these jurisdictions for each of the five years.

Table Eight – Overall Annual Jurisdiction-Wide Pass Rates for the Jurisdictions in Which at Least Ten District of Columbia Graduates Sat for the Bar (20082011) Jurisdiction

2008

2009

2010

2011

2012

MD (143) D.C. (47) VA (46) NY (14)

75% 61% 76% 80%

69% 55% 70% 78%

71% 47% 71% 77%

74% 58% 74% 77%

71% 60% 71% 73%

Top Five Hispanic Graduate Producing Law Schools The tables in this section are organized according to the number of Hispanic graduates produced by each of the top five schools in the five-year period of 2008-2012, in descending order starting with the school that produced the most Hispanic graduates.

St. Thomas University -- Florida (349 Hispanic Graduates)

10

According to the available ABA Official Guide data, the only jurisdiction in which St. Thomas had at least ten graduates sit for the bar examination during this five-year period was Florida (819 graduates). Table Nine below shows the annual jurisdiction-wide bar passage rate for this jurisdiction for each of the five years.

Table Nine – Overall Annual Jurisdiction-Wide Pass Rates for the Jurisdiction in Which at Least Ten St. Thomas Graduates Sat for the Bar (2008-2011) Jurisdiction

2008

2009

2010

2011

2012

FL(819)

71%

68%

69%

72%

71%

University of Texas (326 Hispanic Graduates) According to the available ABA Official Guide data, the three jurisdictions in which Texas had at least ten graduates sit for the bar examination during this five-year period, in descending order from the jurisdiction where the most graduates sat for the bar, were Texas (1,472 graduates), New York (87 graduates), and California (53 graduates). Table Ten below shows the annual jurisdiction-wide bar passage rates for each of these jurisdictions for each of the five years.

Table Ten – Overall Annual Jurisdiction-Wide Pass Rates for the Jurisdictions in Which at Least Ten Texas Graduates Sat for the Bar (2008-2011) Jurisdiction

2008

2009

2010

2011

2012

TX (1,472) NY (87) CA (53)

78% 80% 65%

78% 78% 60%

76% 77% 60%

80% 77% 61%

75% 73% 61%

American University (315 Hispanic Graduates) According to the available ABA Official Guide data, the four jurisdictions in which American had at least ten graduates sit for the bar examination during this five-year period, in descending order from the jurisdiction where the most graduates sat for the bar, were New York (661 graduates), Maryland (538 graduates), Virginia (330 graduates), and California (130 graduates). Table Eleven below shows the annual jurisdiction-wide bar passage rates for each of these jurisdictions for each of the five years.

Table Eleven – Overall Annual Jurisdiction-Wide Pass Rates for the

11

Jurisdictions in Which at Least Ten American Graduates Sat for the Bar (2008-2011) Jurisdiction

2008

2009

2010

2011

2012

NY (661) MD (538) VA (330) CA (130)

80% 75% 76% 65%

78% 69% 70% 60%

77% 71% 71% 60%

77% 74% 74% 61%

73% 71% 71% 61%

St. Mary’s University (294 Hispanic Graduates) According to the available ABA Official Guide data, the only jurisdiction in which St. Mary’s had at least ten graduates sit for the bar examination during this five-year period was Texas (1,095 graduates). Table Twelve below shows the annual jurisdiction-wide bar passage rate for this jurisdiction for each of the five years.

Table Twelve – Overall Annual Jurisdiction-Wide Pass Rates for the Jurisdiction in Which at Least Ten St. Mary’s Graduates Sat for the Bar (2008-2011) Jurisdiction

2008

2009

2010

2011

2012

TX (1,095)

78%

78%

76%

80%

75%

Florida International University (292 Hispanic Graduates) According to the available ABA Official Guide data, the only jurisdiction in which Florida International had at least ten graduates sit for the bar examination during this five-year period was Florida (567 graduates). Table Thirteen below shows the annual jurisdiction-wide bar passage rate for this jurisdiction for each of the five years.

Table Thirteen – Overall Annual Jurisdiction-Wide Pass Rates for the Jurisdiction in Which at Least Ten Florida International Graduates Sat for the Bar (20082011) Jurisdiction

2008

2009

2010

2011

2012

FL(567)

71%

68%

69%

72%

71%

Top Five Asian/Native Hawaiian/Pacific Islander Graduate Producing Law Schools

12

The tables in this section are organized according to the number of Asian/Native Hawaiian/Pacific Islander graduates produced by each of the top five schools in the five-year period of 2008-2012, in descending order starting with the school that produced the most of these graduates.

Loyola Marymount (454) Asian/Native Hawaiian/Pacific Islander Graduates) According to the available ABA Official Guide data, the only jurisdiction in which Loyola Marymount had at least ten graduates sit for the bar examination during this five-year period was California (1,880 graduates). Table Fourteen below shows the annual jurisdiction-wide bar passage rate for this jurisdiction for each of the five years.

Table Fourteen – Overall Annual Jurisdiction-Wide Pass Rates for the Jurisdiction in Which at Least Ten Loyola Marymount Graduates Sat for the Bar (20082011) Jurisdiction

2008

2009

2010

2011

2012

CA (1,880)

65%

60%

60%

61%

61%

California-Hastings (429 Asian/Native Hawaiian/Pacific Islander Graduates) According to the available ABA Official Guide data, the two jurisdictions in which California-Hastings had at least ten graduates sit for the bar examination during this five-year period, in descending order from the jurisdiction where the most graduates sat for the bar, were California (1,908 graduates) and New York (16 graduates). Table Fifteen below shows the annual jurisdiction-wide bar passage rates for each of these jurisdictions for each of the five years.

Table Fifteen – Overall Annual Jurisdiction-Wide Pass Rates for the Jurisdictions in Which at Least Ten California-Hastings Graduates Sat for the Bar (20082011) Jurisdiction

2008

2009

2010

2011

2012

CA(1,908) NY (16)

65% 80%

60% 78%

60% 77%

61% 77%

61% 73%

Santa Clara (391 Asian/Native Hawaiian/Pacific Islander Graduates)

13

According to the available ABA Official Guide data, the only jurisdiction in which Santa Clara had at least ten graduates sit for the bar examination during this five-year period was California (1,329 graduates). Table Sixteen below shows the annual jurisdiction-wide bar passage rate for this jurisdiction for each of the five years.

Table Sixteen – Overall Annual Jurisdiction-Wide Pass Rates for the Jurisdiction in Which at Least Ten Santa Clara Graduates Sat for the Bar (2008-2011) Jurisdiction

2008

2009

2010

2011

2012

CA (1,329)

65%

60%

60%

61%

61%

Brooklyn (343 Asian/Native Hawaiian/Pacific Islander Graduates) According to the available ABA Official Guide data, the only jurisdiction in which Brooklyn had at least ten graduates sit for the bar examination during this five-year period was New York (2,220 graduates). Table Seventeen below shows the annual jurisdiction-wide bar passage rate for this jurisdiction for each of the five years.

Table Seventeen – Overall Annual Jurisdiction-Wide Pass Rates for the Jurisdiction in Which at Least Ten Brooklyn Graduates Sat for the Bar (2008-2011) Jurisdiction

2008

2009

2010

2011

2012

NY(2,220)

80%

78%

77%

77%

73%

Columbia (328 Asian/Native Hawaiian/Pacific Islander Graduates) According to the available ABA Official Guide data, the only jurisdiction in which Columbia had at least ten graduates sit for the bar examination during this five-year period was New York (1,657 graduates). Table Eighteen below shows the annual jurisdiction-wide bar passage rate for this jurisdiction for each of the five years.

Table Eighteen – Overall Annual Jurisdiction-Wide Pass Rates for the Jurisdiction in Which at Least Ten Columbia Graduates Sat for the Bar (2008-2011) Jurisdiction

2008

2009

2010

2011

2012

NY(1,657)

80%

78%

77%

77%

73%

Top Five American Indian/Alaskan Native Graduate Producing Law Schools

14

The tables in this section are organized according to the number of American Indian/Alaskan Native graduates produced by each of the top five schools in the five-year period of 2008-2012, in descending order starting with the school that produced the most of these graduates.

Oklahoma (78 American Indian/Alaskan Native Graduates) According to the available ABA Official Guide data, the only jurisdiction in which Oklahoma had at least ten graduates sit for the bar examination during this five-year period was Oklahoma (667 graduates). Table Nineteen below shows the annual jurisdiction-wide bar passage rate for this jurisdiction for each of the five years.

Table Nineteen – Overall Annual Jurisdiction-Wide Pass Rates for the Jurisdiction in Which at Least Ten Oklahoma Graduates Sat for the Bar (2008-2011) Jurisdiction

2008

2009

2010

2011

2012

OK(667)

89%

80%

82%

83%

80%

New Mexico (53 American Indian/Alaska Native Graduates) According to the available ABA Official Guide data, the only jurisdiction in which New Mexico had at least ten graduates sit for the bar examination during this five-year period was New Mexico (461 graduates). Table Twenty below shows the annual jurisdiction-wide bar passage rate for this jurisdiction for each of the five years.

Table Twenty – Overall Annual Jurisdiction-Wide Pass Rates for the Jurisdiction in Which at Least Ten New Mexico Graduates Sat for the Bar (2008-2011) Jurisdiction

2008

2009

2010

2011

2012

NM(461)

85%

84%

81%

82%

84%

Arizona State (51 American Indian/Alaskan Native Graduates) According to the available ABA Official Guide data, the only jurisdiction in which Arizona State had at least ten graduates sit for the bar examination during this five-year period was Arizona (778 graduates). Table Twenty-One below shows the annual jurisdiction-wide bar passage rate for this jurisdiction for each of the five years.

Table Twenty-One – Overall Annual Jurisdiction-Wide Pass Rates for the

15

Jurisdiction in Which at Least Ten Arizona State Graduates Sat for the Bar (2008-2011) Jurisdiction

2008

2009

2010

2011

2012

AZ(778)

77%

73%

73%

70%

75%

Tulsa (49 American Indian/Alaskan Native Graduates) According to the available ABA Official Guide data, the two jurisdictions in which Tulsa had at least ten graduates sit for the bar examination during this five-year period, in descending order from the jurisdiction where the most graduates sat for the bar, were Oklahoma (495 graduates) and Texas (63 graduates). Table Twenty-Two below shows the annual jurisdictionwide bar passage rates for each of these jurisdictions for each of the five years.

Table Twenty-Two – Overall Annual Jurisdiction-Wide Pass Rates for the Jurisdictions in Which at Least Ten Tulsa Graduates Sat for the Bar (2008-2011) Jurisdiction

2008

2009

2010

2011

2012

OK(495) TX(63)

89% 78%

80% 78%

82% 76%

83% 80%

80% 75%

Oklahoma City (42 American Indian/Alaskan Native Graduates) According to the available ABA Official Guide data, the two jurisdictions in which Oklahoma City had at least ten graduates sit for the bar examination during this five-year period, in descending order from the jurisdiction where the most graduates sat for the bar, were Oklahoma (549 graduates) and Texas (147 graduates). Table Twenty-Three below shows the annual jurisdiction-wide bar passage rates for each of these jurisdictions for each of the five years.

Table Twenty-Three – Overall Annual Jurisdiction-Wide Pass Rates for the Jurisdictions in Which at Least Ten Oklahoma City Graduates Sat for the Bar (2008-2011) Jurisdiction

2008

2009

2010

2011

2012

OK(549) TX(147)

89% 78%

80% 78%

82% 76%

83% 80%

80% 75%

Comparison to Predominantly Caucasian Schools in High Passage Rate Jurisdictions

16

The arbitrary unfairness of Proposed Standard 316 becomes clear when we examine a sampling of schools that graduate predominantly Caucasian students, who happen to sit for the bar examination in jurisdictions with abnormally high passage rates.

Alabama According to the 2014 edition of the ABA Official Guide, Alabama’s 2012 enrollment, the most recent year for which data is available, was 86% Caucasian. According to the same 2014 edition of the Official Guide, more than 80% of Alabama’s grads sit for the bar in Alabama. Table Twenty-Four below shows the annual jurisdiction-wide bar passage rates for that jurisdiction.

Table Twenty-Four – Overall Annual Jurisdiction-Wide Pass Rates for Alabama (20082011) Jurisdiction

2008

2009

2010

2011

2012

AL

86%

84%

81%

83%

84%

Southern Illinois According to the 2014 edition of the ABA Official Guide, Southern Illinois’s 2012 enrollment, the most recent year for which data is available, was 88% Caucasian. According to the same 2014 edition of the Official Guide, more than 80% of Southern Illinois’s grads sit for the bar in Illinois. Table Twenty-Five below shows the annual jurisdiction-wide bar passage rates for that jurisdiction.

Table Twenty-Five – Overall Annual Jurisdiction-Wide Pass Rates for Illinois (2008-2011) Jurisdiction

2008

2009

2010

2011

2012

IL

85%

84%

84%

84%

82%

Drake According to the 2014 edition of the ABA Official Guide, Drake’s 2012 enrollment, the most recent year for which data is available, was 85% Caucasian. According to the same 2014 edition of the Official Guide, more than 80% of Drake’s grads sit for the bar in Iowa. Table Twenty-Six below shows the annual jurisdiction-wide bar passage rates for that jurisdiction.

Table Twenty-Six – Overall Annual Jurisdiction-Wide Pass Rates for Iowa (2008-2011)

17

Jurisdiction

2008

2009

2010

2011

2012

IA

85%

88%

87%

84%

88%

Washburn According to the 2014 edition of the ABA Official Guide, Washburn’s 2012 enrollment, the most recent year for which data is available, was 81% Caucasian. According to the same 2014 edition of the Official Guide, more than 80% of Washburn’s grads sit for the bar in Kansas.

Table Twenty-Seven below shows the annual jurisdiction-wide bar passage rates for that jurisdiction.

Table Twenty-Seven – Overall Annual Jurisdiction-Wide Pass Rates for Kansas (20082011) Jurisdiction

2008

2009

2010

2011

2012

KS

86%

82%

84%

86%

84%

New England School of Law According to the 2014 edition of the ABA Official Guide, New England’s 2012 enrollment, the most recent year for which data is available, was almost 70% Caucasian, and had less than 5% African American students. According to the same 2014 edition of the Official Guide, more than 80% of New England’s grads sit for the bar in Massachusetts. Table TwentyEight below shows the annual jurisdiction-wide bar passage rates for that jurisdiction.

Table Twenty-Eight – Overall Annual Jurisdiction-Wide Pass Rates for Massachusetts (2008-2011) Jurisdiction

2008

2009

2010

2011

2012

MA

87%

84%

85%

84%

81%

William Mitchell According to the 2014 edition of the ABA Official Guide, William Mitchell’s 2012 enrollment, the most recent year for which data is available, was 74% Caucasian. According to the same 2014 edition of the Official Guide, more than 80% of William Mitchell’s grads sit for

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the bar in Minnesota. Table Twenty-Nine below shows the annual jurisdiction-wide bar passage rates for that jurisdiction.

Table Twenty-Nine – Overall Annual Jurisdiction-Wide Pass Rates for Minnesota (20082011) Jurisdiction

2008

2009

2010

2011

2012

MN

87%

85%

86%

88%

85%

Saint Louis According to the 2014 edition of the ABA Official Guide, Saint Louis’s 2012 enrollment, the most recent year for which data is available, was 85% Caucasian. According to the same 2014 edition of the Official Guide, more than 80% of Saint Louis’s grads sit for the bar in Missouri. Table Thirty below shows the annual jurisdiction-wide bar passage rates for that jurisdiction.

Table Thirty – Overall Annual Jurisdiction-Wide Pass Rates for Missouri (2008-2011) Jurisdiction

2008

2009

2010

2011

2012

MO

88%

87%

87%

90%

89%

Conclusion This detailed analysis of the pass rates of particular schools in particular jurisdictions shows that because of the unevenness of the bar exam playing field, together with the geographic accident of where most of a school’s graduates happen to sit for the bar exam, most of the schools that graduate the largest number of African American, Hispanic, and Asian students face a disadvantage because their graduates sit for the bar in more challenging jurisdictions where the pass rates are frequently less than 75%, while the graduates of many predominantly Caucasian schools have the advantage of sitting for the bar in less challenging jurisdictions with pass rates that are consistently well in excess of 80%.

This disparate impact is arbitrarily unfair, violates the American Bar Association’s longstanding commitment to diversity as a core value of the association, and violates the spirit, if not the letter, of the Section of Legal Education’s corresponding commitment, as expressed in Standards 211 and 212 dealing with non-discrimination, equality of opportunity, and diversity.

And it is why the SRC bears the burden of conducting an ultimate pass rate study of the pass rates achieved by particular schools in particular jurisdictions before moving forward on its

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proposal. Otherwise, it risks unintentionally discriminating against schools that graduate large numbers of students of color.

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