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 The Florida Bar News - December 1, 2006

Examining the Exam
Has raising the pass/fail lines on the bar exam had a disparate impact on minority applicants?
By Jan Pudlow
Senior Editor
When the Florida Supreme Court raised the pass/fail line of the bar exam from 131 to 136, at the request of the Florida Board of Bar Examiners, there was great concern it would have a negative impact on minorities trying to enter the legal profession.
Three years after that March 2003 decision, have those fears proven to be valid?
“This is a question that the board is studying and will forward its findings to the court,” said Miguel M. de la O, chair of the Florida Board of Bar Examiners.
“Because the demographic breakdown of bar results is confidential, the board cannot comment on what impact, disparate or otherwise, raising the pass/fail lines has had on minority applicants.”
Leading up to the court’s March 20, 2003, ruling (in case no. SC 96,869), there was much debate about the topic and a rare glimpse into those tightly held demographic results.
The Florida Bar Board of Governors, on April 7, 2000, agreed to support the bar examiners’ petition to raise the passing score, as long as that action didn’t make it more difficult for minorities to become lawyers.
The Legal Education Advisory Council, charged by Board of Regents Chancellor Adam Herbert to find new ways to bring more minorities into the legal profession without creating new law schools, voted on April 28, 2000, to “encourage the Florida Board of Bar Examiners to conduct a two-year study to identify the impact on minorities” if the pass/fail line of the exam was raised.
Noel G. Lawrence, the lone member of the Board of Bar Examiners to vote against raising the pass/fail line, 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. He filed demographic results on race and national origin/ethnicity of test-takers of the February 2000 bar exam that showed the higher the pass/fail line is raised, the fewer percentage of minorities will pass and the hardest hit are blacks.
In oral arguments, on October 3, 2001, Daryl Parks, representing the Florida Chapter of the National Bar Association, said, “It’s one of my main concerns that there is the greatest disparity to minority groups as the score rises.”
The high court was divided on the question, too, when it ruled the pass/fail line would be raised from 131 to 133 in 2003, and then upped again to 136 in 2004. In a separate opinion concurring in part and dissenting in part, Justice Barbara Pariente, joined by Justices Peggy Quince and Leander Shaw, said they would not have raised the standard out of “concern about potential adverse effect this change would have on minorities. Combined results for first-time test-takers in the two examinations administered in 2001 reflect greater declines for black first-time test-takers than for white,” Pariente wrote. “The pass rate for blacks would have declined by 6 percent at a passing score of 133 and 14 percent at a passing score of 136, compared to a 4 percent decline at a score of 133 and an 11 percent decline at a score of 136 for white test-takers.”
At oral arguments in that case, Board of Bar Examiners General Counsel Tom Pobjecky argued: “I think the focus should be on what is the appropriate standard. And there is no basis for 131. . . . Of course, the board shares the concern that the court has on diversity and passage rates of minority groups.”
In an interview after oral arguments on the courthouse steps, Pobjecky said he believed Florida’s law schools will rise to the occasion and better prepare students if the bar exam is raised.
“Studies have consistently shown that,” he said. “It’s the education you get, and the preparation you do.”
Now Florida is in a wait-and-see mode for a study with results to be made public.
“The board has been monitoring applicant performances, broken down by ethnicity/race and sex, even before the pass/fail line was raised, and will continue to do so for the foreseeable future,” de la O said.
“Whether the bar exam has a disparate impact on minorities has always been of concern to the board and the court, again, even before the pass/fail line was raised in 2003.”
While the board already releases certain information regarding bar exam performance to the 10 law schools in Florida, de la O said, “The board can only release additional information if the court authorizes such disclosure.”
Joseph Harbaugh, dean of Shepard Broad Law Center at Nova Southeastern University who argued against raising the pass/fail line, hopes the court will allow the board to share more information.
Asked if he thinks the higher passage line has had a negative impact on minority students, Harbaugh said, “I think our problem is that we don’t know. What we do know is that the statewide bar passage rate is lower. On behalf of a number of the Florida deans, I have asked the Bar Examiners to release more information. I’ve asked specifically for results as it pertains to race and ethnicity. It’s before the board right now.”
The Board of Bar Examiners is split on whether to release such information.
“The board has studied, and debated extensively, whether to release the data. As a result, the board recognizes there are strong arguments on both sides of the issue and has provided the court with those arguments without making any recommendation,” de la O said.
The News asked Chief Justice Fred Lewis, who serves as a liaison to the Board of Bar Examiners, what he thinks about the matter. Supreme Court spokesman Craig Waters responded: “The court will address these issues, which as you noted are the subject of a pending request before the Bar Examiners, when they are properly brought before it as a collegial body. Until that time, any comment would be inappropriate.”
The only information Michele Gavagni, executive director of the Florida Board of Bar Examiners, said she could release are news releases that break down results for first-time test-takers showing the number taking the test, the number passing the test, and the percent passing for each of Florida’s law schools and for non-Florida law schools.
For the July 2001 general bar exam, the total for first-time test-takers passing the exam was 81 percent. For the July 2005 general bar exam – after the pass/fail line was raised and after Florida added two new public law schools at Florida A&M University and Florida International University — the total for first-time test-takers passing the exam dropped to 70.5 percent.
“Any time you raise the cut score, more people will fail. That shouldn’t be a banner headline,” said Erica Moeser, president of the National Conference of Bar Examiners in Madison, Wisconsin.
Her group recently completed a report for the state of New York, which similarly raised its passing score five points in July 2005, and just as in Florida heard concerns about a possible negative impact on minorities.
“After that went into effect, our board agreed to study what impact that would have on students,” said John McAlary, executive director of the New York Board of Law Examiners. “We are still collecting data. It’s a three-year project,” he said.
On its Web site at www.nybarexam.org, McAlary posted the 155-page NCBE report titled “Impact on the Increase in the Passing Score on the New York State Bar Examinations.”
Candidates taking the July 2005 New York bar exam were asked to complete a demographic survey, and more than 90 percent of 10,175 candidates supplied the requested information. Among the key findings:
• “Increases in the passing score produce decreases in the passing rates.”
• “There are large differences in pass rates across the racial/ethnic groups. . .and the order of the five groups in terms of pass rates remains the same as the passing score increases. The Caucasian/White group has the highest pass rates, the Asian/Pacific Islander group is second, the Puerto Rican group is third, the Hispanic/Latino group is fourth, and the Black/African American group is fifth.”
• “The Black/African American group and other minority groups tend to suffer sharper declines in pass rates than the Caucasian/White group as the passing score goes up. In addition, because the minority groups have lower pass rates to begin, a decrease in a few percentage points in the pass rate has a larger proportional impact on the pass rates for these groups than it would if the initial pass rates were higher.”
• “Among 430 Black/African American candidates in the sample, the pass rate declined 3.9 percent (to 54 percent) with the increase in the score from 660 to 665.”
• “In general, law-school GPA is strongly related to performance on the bar examination.”
Meanwhile, in Florida, Dean Harbaugh waits to see whether his request for more information will be granted. He not only would like to see information on race and ethnicity, but also data broken down to reveal the ages of students, gender, and when students finished their undergraduate degree.
“My goal is to have as many students as possible pass the bar exam the first time,” Harbaugh said.
“The greater the information we have available, the more likely we are to prepare our students for the rigors of the bar exam and entry into practice.
“Unless there are very good reasons why that information should not be released, it seems to me there are valid reasons for the release of information. For example, one of the things we know from the national bar passage study and our own internal bar passage study is that there is a correlation of first-time bar passage and grade point average in law school. We don’t know where it begins to break off and where students’ lower GPAs make them higher risks, whether on the Florida portion or the multistate. We don’t know where to put our teaching resources.”
California is one state that publicly displays racial, ethnic, and gender breakdowns in bar exam results on its Web site.
“You see a huge variety of approaches around the country. It is truly all over the map,” said Moeser, of the national group.
“But very few jurisdictions have collected racial or ethnic data for candidates taking the bar. I do think the trend is for more information to be made available.
“I personally endorse as much transparency as possible. Frankly, I think it’s information candidates themselves should have access to. I happen to think public confidence grows when there is transparency.”

Source: Bar News Article