Law School Accreditation and Bar Passage Rates
As anyone involved with law schools knows, bar passage rates are a hot topic closely connected with the issue of affirmative action. A recent article in the Stanford Law Review by Richard Sanders argued that affirmative action by law schools injures blacks; the student who would have done reasonably well in (say) a third tier law school with other students about as able as he was gets admitted to a first or second tier law school eager to increase its (racial) diversity, and ends up never passing the bar. I discussed the issue in a post some time back. After hearing about the article I asked a colleague likely to be unsympathetic with its conclusion if she knew of a good rebuttal. Having read the article she suggested, whose argument ultimately came down to "Sanders is a racist," I concluded that if that is the best rebuttal available, Sanders is probably right. If anyone knows of a better rebuttal, I would be interested in the cite.
The easiest way for a law school to raise its bar passage rates in order not to be at risk of losing its accreditation is by reducing its willingness to admit black students with low LSATs. Thus the ABA proposals, apparently made in response to pressure from the Department of Education, are likely to be seen as an attack on affirmative action. They are also seen as threatening traditionally black law schools. If Sanders is correct, the first may actually be a good thing; the second is not.
In my view, the fundamental problem with the ABA proposal is that it is measuring the wrong thing. There are two different mistakes one would like law schools to avoid:
1. Admitting students who won't benefit from admission and probably won't pass the bar, in order to raise the racial diversity of their student body.
2. Rejecting students who will benefit from admission but will still have a lower than average chance of passing the bar, given where they are starting from, in order to raise the school's bar passage rate.
The real test of the education provided by a law school should be some measure of value added rather than quality of graduates (as measured by bar passage rates). The fact that a school can get a student who starts at the 99th percentile of the LSAT to pass the bar isn't much evidence that it is worth going to. If the ABA is going to set standards along these lines, they should be based, not on average bar passage rates, but on the relation between bar passage rates and entering LSATs.
Doing that is pretty straightforward. Run a regression for each state with LSAT as the independent variable, bar passage probability as the dependent variable, to find, on average, the probability that a student who starts with a given LSAT will end up passing the bar. Use the results of that regression to calculate what the bar passage rate ought to be for a given class at a given law school if the school is providing an average education. If the actual rate is more than a fixed amount below that, the school doesn't get accredited. That way accreditation provides the information that matters to the student--how much more likely am I to pass the bar if I go to this school or that?
Of course, I also have reservations about other parts of the system--but at least, if they are going to do this part, they ought to do it right.
Accreditation requires a yes/no decision. The approach I have described also makes it possible to provide more detailed information to applicants trying to decide whether to go to law school and, if so, what school to go to. Each school could report bar passage rate for its graduates over the past ten years as a function of entering LSAT, both as an absolute number and relative to the average figure for the state.
What a student wants to know, after all, is not how good a job the school does on average but how good a job it is likely to do for him. If, as Sanders' article implies, a student with a less than stellar LSAT is likely to learn less at Harvard Law School than at some less prestigious school better adapted to teaching students like him, that is information the student ought to have.