February 1, 2017 Supreme Court of California 350 McAllister Street Room 1295 San Francisco, CA 94102 Re: The California Bar Exam Dear Justices: We, the Deans of 20 of California?s ABA-accredited law schools, write collectively to request that the Court exercise its legal jurisdiction over the California State Bar to adjust its scoring methods to bring them in line with the nation?s at large. California?s current practice of setting an atypically high ?cut score? (the minimum passing score set by each state that is keyed to the Multistate Bar Exam (MBE) portion of the exam), has resulted in the nation?s lowest bar pass rate as measured over the past couple of decades. This arbitrarily high cut score is not supported by any valid basis and we believe it causes multiple public harms both to our students and beyond. This year, the pass rate of those who took the July 2016 California bar fell to historically low rates: 43 percent overall, and 62 percent for ?rst-time takers from ABA-accredited law schools, the lowest overall pass rate in 32 years. Thirty-eight percent of the graduates of ABA- accredited law schools did not pass what is understood to be a minimum competency exam. California consistently ranks near or at the very bottom of pass rates nationally. By contrast, in New York, the pass rate this year for all ?rst-time takers from ABA-accredited schools was 83 percent, and Texas saw a similar 82-percent pass rate for its Texas ABA- accredited ?rst-time takers. 75 percent for ?rst time takers; Ohio, 76 percent. We are a distinct outlier. Critically, Califomia?s lower pass rate is not due to those who take the California bar being less quali?ed, or poorer exam-takers, than those in other states. Rather, it is a result of California?s atypically high cut score of 144 for the MBE portion of the exam. This cut score is higher than that of all other states in the country save one (Delaware) and directly generates the low pass rate in California. In fact, California bar takers, as a whole, performed better than average on the MBE portion of the exam by national standards. The national average score on the MBE was 140.3. Califomia?s overall average was 143, and for those takers from Califomia ABA-accredited schools, the average score was 145.7. (Unlike California, most states permit only graduates of ABA-accredited law schools to sit for the bar.) In other words, California bar takers from ABA law schools perform considerably better than the national average on the one part of the exam that is given nationally, and yet fared signi?cantly worse in terms of passing the bar exam, simply because California uses an atypically high cut score on the MBE portion of the exam. While the content of the essay portion of the exam varies across states, it is statistically scaled to RECEIVED FEB 1 2017 CLERK SUPREME COURT the MBE meaning, in essence, that the aggregate MBE scores drive the scaled aggregate grades on the essays as well. We recognize that there have been legitimate concerns, in Califomia and across the country, about law school admissions in recent years, including whether law schools are admitting less quali?ed students than in the past. We certainly agree that this important issue deserves attention and assessment. But the discrepancy between California?s pass rates and those of other states given the performance of California bar takers on the multistate portion of the examcannot be explained away in these terms. Let us say it again: California graduates of ABA-accredited schools are performing better than average, and yet many of them graduates of our law schools who would have passed the bar with similar performance in virtually any other state are failing it in our great State, simply because of where California has decided to draw the line between passing and failing. California?s low pass rate would be regrettable but understandable if there were a valid justi?cation for the State Bar?s atypically high cut score. This high cut score was set 30 years ago, in 1986, but we are aware of no valid evidence showing that this unusually high cut score distinguishes accurately between those who should and those who should not be licensed to practice law in Califomia, or produces better lawyers for the citizens of California than those permitted to practice in states like New York and elsewhere. Given that we can ?nd no justi?cation for the present practice of scoring the bar exam, the costs of the high failure rate should be deeply concerning to us all. The most immediate and direct costs fall upon the students who do not pass the California bar, particularly those who would have passed in other states. Many will retake the exam, and most will ultimately succeed in passing on their second or subsequent attempts. However, as a consequence of their initial failure, many of these students lose jobs or employment opportunities and months of income. Each of these students will incur substantial costs, often including newly incurred debt, to pay for further administrations of the exam, to take additional bar preparation courses, and to pay their costs of living while focusing on test preparation. Those seeking jobs as lawyers ?nd their efforts stymied while they focus on preparing for the exam. For many, failure causes harms as well. Although the bar results are often described in statistical terms, the choice of the cut score profoundly impacts real lives. Beyond our students, the negative consequences of Califomia?s high cut score also impact the people of our State more broadly. Although it is by now an urban legend that there are ?too many lawyers,? in many parts of the State and in many areas of the law there may well, in fact, be too few. Geographically, for example, the Central Valley is perennially short of practicing attorneys. And by subject area, many areas are short of legal counsel, including family law, and immigration, as well as for large areas of ?low-bono? practice on behalf of people of modest and middle class means. Moreover, the State?s elevated cut score has a direct effect on minority populations. In particular, law schools seeking to improve their respective state pass rates are forced to take fewer chances on non-traditional students, and will seek to admit as many strong test takers as possible rather than making more holistic evaluations. This will ultimately have a dire impact on minority representation in law schools and, ultimately, in the legal profession. Furthermore, California?s high cut scores generate pressure for California law schools to design their educational programs with even more focus on the bar exam itself than is required in other states. This may, at the margins, drive schools and students to additional emphasis on memorization, multiple-choice exam skills and overt test preparation rather than the full range of skills necessary for effective lawyering. We admittedly do not know precisely what cut score would be appropriate for determining who passes and who fails a state licensing exam. However, in the absence of valid support for California?s atypically high cut score, we believe that it violates basic fairness, undermines the public interest, and in?icts considerable ?nancial, emotional and costs on prospective members of the Bar, for California to hold to its historical practice of a pass rate 1.5 standard deviations below the national average. The California Bar has had thirty years to study whether its cut score is justi?ed or truly produces more competent lawyers than those in New York, Texas, Massachusetts or virtually anywhere else. Given the lack of meaningful evidence to support the validity of this elevated cut score, and the signi?cant costs to our students and the public of our current outlier approach, we strongly believe that while we wait for such evidence, the threshold should be shifted. Unless or until we have strong justi?cation for the bene?ts of California?s approach, we ought to bring our exam in line with the approach taken by other economically signi?cant states, most of which use a cut score between 133 and 136. We would welcome careful investigation and thought?il study of the appropriate cut score, and we are prepared to support and collaborate with the California State Bar in such a study. But we strongly believe that our State cannot wait to act. We therefore propose that the California Supreme Court order the California State Bar, beginning with the July 2017 administration, to employ a cut score in line with other states. In the absence of information regarding what cut score is best, a cut score Within the range we suggest (133-136) is likely the best approximation for what is fair. We believe that this standard should be maintained until the State can complete a full study of the bar exam, and we would like to re-emphasize that we are eager to participate in that study in any way that we can. Should you have any questions we would be pleased to meet at any time to discuss both our proposal and our deep concerns on behalf of our students and schools. Sincerely, Erwin Chemerinsky Dean and Distinguished Professor of Law Raymond Pryke Professor of First Amendment Law University of California Irvine School of Law Judith Daar Interim Dean and Professor of Law Whittier Law School Allen Easley Dean Professor of Law Western State College of Law David L. Faigman Chancellor and Dean John F. Digardi Distinguished Professor of Law University of California Hastings College of Law Stephen C. Ferruolo Dean and Professor of Law University of San Diego School of Law Thomas F. Guernsey President and Dean Thomas Jefferson School of Law Andrew T. Guzman Dean and Carl Mason Franklin Chair in Law and Professor of Law and Political Science University of Southern California Gould School of Law Gilbert Holmes Dean Professor of Law University of La Verne College of Law Lisa Kloppenberg Dean Professor of Law Santa Clara University School of Law M. Elizabeth Magill Richard E. Lang Professor of Law and Dean Stanford Law School Jennifer L. Mnookin Dean and David G. Price Dallas P. Price Professor of Law UCLA School of Law Francis J. Mootz Dean and Professor of Law University of the Paci?c, McGeorge School of Law Melissa Murray Interim Dean Alexander F. and May T. Morrison Professor of Law University of California Berkeley School of Law Matt Parlow Dean and Donald P. Kennedy Chair in Law Dale E. Fowler School of Law at Chapman University Susan Prager Dean and Chief Executive Of?cer Southwestern Law School Niels Schaumann President and Dean California Western School of Law Deanell Reece Tacha Duane and Kelly Roberts Dean Pepperdine University School of Law John Trasvi?a Dean Professor of Law University of San Francisco School of Law Rachel Van Cleave Dean Professor of Law Golden Gate University, School of Law Michael E. Waterstone Fritz B. Burns Dean and Professor of Law Loyola Law School SUPREME COURT OF CALIFORNIA I, Katelyn N. Madar, declare: I am a citizen of the United States and employed in the City and County of San Francisco, California in the of?ce of a California law school at whose direction the following service was made. I am over the age of eighteen years and not a party to the within-entitled action. My business address is 200 McAllister Street, San Francisco, California 94102. On February 1, 2017, I served a copy of the within document(s): El LETTER FROM 20 DEANS OF CALIFORNIA ABA-ACCREDITED LAW SCHOOLS TO THE CALIFORNIA SUPREME COURT RE THE CALIFORNIA BAR EXAM SIGNED FEBRUARY 1, 2017 by FACSIMILE TRANSMISSION, by transmitting via facsimile the document(s) listed above to the fax number(s) set forth below on this date before 5:00 pm. by UNITED STATES MAIL, by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at San Francisco, California addressed as set forth below. I am readily familiar with this law school?s practice of collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the US. Postal Service, in a sealed envelope(s) with postage fully prepaid. by COURIER placing the document(s) listed above in a sealed envelope and af?xing a pre-paid air bill, and causing the envelope to be delivered to a Delivery Service agent for delivery. by PERSONAL DELIVERY, by personally delivering the document(s) listed above to the person(s) at the address(es) set forth below. by E-MAIL VIA PDF FILE, by transmitting via e-mail or electronic transmission the document(s) listed above to the person(s) at the e-mail address(es) set forth below. by ELECTRONICALLY POSTING to the ECF website of the AND The Court performed service electronically on all ECF-registered entities in this matter. PROOF OF SERVICE 1 El by ELECTRONICALLY SERVING the document via Lexis Nexis File Serve as described above on the recipients designed on the Transaction Receipt located in the LexisNexis File Serve website. BY US. MAIL AND EMAIL Erwin Chemerinsky Dean and Distinguished Professor of Law Raymond Pryke Professor of First Amendment Law University of California Irvine School of Law 401 E. Peltason Drive, Suite 1000 Irvine, CA 92697-8000 echemerinsky@law.uci.edu Judith F. Daar Interim Dean and Professor of Law Whittier Law School 3333 Harbor Blvd. Costa Mesa, CA 92626-1501 jdaar@law.whittier.edu Allen Easley Dean Professor of Law Western State College of Law 1 Banting Irvine, CA 92618 aeasley@ wsulaw.edu David L. Faigman Chancellor and Dean John F. Digardi Distinguished Professor of Law University of California Hastings College of Law 200 McAllister St. San Francisco, CA 94102-4707 faigmand@uchastings.edu Stephen C. Ferruolo Dean and Professor of Law University of San Diego School of Law 5998 Alcala Park San Diego, CA 92110-2492 sferruolo@sandiego.edu PROOF OF SERVICE Thomas F. Guernsey President and Dean Thomas Jefferson School of Law 1155 Island Avenue San Diego, CA 92101 guernsey@tjsl.edu Andrew T. Guzman Dean and Carl Mason Franklin Chair in Law and Professor of Law and Political Science University of Southern California Gould School of Law 699 Exposition Boulevard Los Angeles, CA 90089-0071 dean@law.usc.edu Gilbert A. Holmes Dean Professor of Law University of La Verne College of Law 320 East St. Ontario, CA 91764 ghohnes@laverne.edu Lisa A. Kloppenberg Dean Professor of Law Santa Clara University School of Law 500 El Camino Real Santa Clara, CA 95053-0001 1kloppenberg@scu.edu M. Elizabeth Magill Richard E. Lang Professor of Law and Dean Stanford Law School Crown Quadrangle 559 Nathan Abbott Way Stanford, CA 94305 emagill@law.stanford.edu Jennifer L. Mnookin Dean and David G. Price Dallas P. Price Professor of Law UCLA School of Law 385 Charles E. Young Drive, East Los Angeles, CA 90095 mnookin@law.ucla.edu PROOF OF SERVICE Francis J. Mootz, Dean and Professor of Law University of the Pacific, McGeorge School of Law 3200 Fifth Avenue Sacramento, CA 95817-2705 Melissa Murray Interim Dean Alexander F. and May T. Morrison Professor of Law University of California Berkeley School of Law 215 Boalt Hall Berkeley, CA 94720-7200 mmurray@law.berkeley.edu Matthew J. Parlow Dean and Donald P. Kennedy Chair in Law Dale E. Fowler School of Law at Chapman University One University Drive Orange, CA 92866-1032 parlow@chapman.edu Susan Westerberg Prager Dean and Chief Executive Of?cer Southwestern Law School 3050 Wilshire Blvd. Los Angeles, CA 90010-1106 Niels B. Schaumann President and Dean California Western School of Law 225 Cedar Street San Diego, CA 92101-3046 nschaumann@cwsl.edu Deanell Reece Tacha Duane and Kelly Roberts Dean Pepperdine University School of Law 24255 Paci?c Coast Highway Malibu, CA 90263-4655 deanell.tacha@pepperdine.edu PROOF OF SERVICE John Trasvifia Dean Professor of Law University of San Francisco School of Law 2130 Fulton Street San Francisco, CA 941 17 jdtrasvina@usfca.edu Rachel Van Cleave Dean Professor of Law Golden Gate University, School of Law 536 Mission Street San Francisco, CA 94105 ?2921 rvancleave@ gu .edu Michael Waterstone Fritz B. Burns Dean and Professor of Law Loyola Law School 919 S. Albany Street Los Angeles, CA 90015-1211 michael .waterstone@ .edu BY PERSONAL DELIVERY AND E-MAIL Vanessa L. Holton General Counsel, The State Bar of California 180 Howard Street San Francisco, CA 94105 vanessa.holt0n@calbar.ca.gov Executed on February 1, 2017 in San Francisco, California. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. elyn N. Madar PROOF OF SERVICE