Recently, the American Bar Association announced a new way to compare law school bar exam pass rates in a single place with the publication of a spreadsheet designed to report “ultimate bar passage percentages.” To the surprise of many, the study showed an uptick in bar pass rates and an ultimate pass rate of 77% for 2017 graduates. Oh, if it were only that simple and clear cut. Instead, like most studies, the new numbers recall Mark Twain’s famous quip about “lies, damned lies and statistics.”

Here are 5 things that make the report not so rosy:

1. The Aggregate Numbers Mask Individual Results
Large law schools generally had good first time bar taker results. That’s great news but it masks the reality that most law schools are much smaller and the pass rates there were often dramatically lower. But, because of the sheer number of bar takers from schools like Harvard (590 Bar Takers in 2015) and Georgetown (656 Bar Takers) that had good pass rates, the numbers skew upward for the overall rates.

But according to Inside Higher Ed, 24 schools actually had pass rates below 75% and another 13 had rates below 80%. The reality is that there is a wide variation in law school rates and the expected success of T25 law schools with large enrollments hides much of the failure in the bottom 20%. Graduates from the law schools with the worst pass rates were generally schools with smaller enrollments.

2. It Still Took 4 Bar Exams for Many Applicants to Achieve a Passing Score

It’s great news that so many 3Ls pass the bar exam, but worth noting that it took many of those applicants up to 4 attempts before succeeding. A 2-year+ gap between graduation and bar passage is an eternity to a student with loans due and life on hold.

Instead of cheering, I suggest we revisit the traditional “big box bar review” methodology of memorize, cram and recite that leads many students into a retake, in place of a modern approach used in courses like ours that ultimately allows many of these applicants to pass the exam. In other words, since we’re cleaning up the mess these big guys make, let’s not give them credit for the pedagogy behind the pass rate.

3. Law Schools are Taking Liberties with their Reporting

It’s no surprise to anyone who’s followed the US News Law School Rankings that some schools are “creative” in their reporting. That’s also the case here. One example: some law schools pay (or incentivize in other ways) at-risk bar takers to not sit for the first exam after graduation, thereby moving those applicants out of the first-time taker pool. Law Schools were unable to give the ABA information on over 1000 students in 2015.

Because self-reporting is fraught with opportunities to massage the data, applicants and consumers should be wary of taking these numbers as wholly accurate – or even representative of some school’s performance.

4. The Study Ignores Non-Traditional Bar Takers

In my view, this may be the largest problem in the study. It only focused on traditional ABA accredited law school first time bar takers. That’s helpful but it ignores at least 3 massive groups of bar takers: Foreign Attorneys, Students from non-accredited schools and delayed or distant bar takers.

The number of Foreign Attorneys sitting for the bar exams in jurisdictions like California, NY, Texas and a growing number of other states has risen dramatically in the past 5 years. This group is also far less likely to pass the bar, with pass rates often under 20%. The results of foreign attorneys were not compiled in this report.

The same is true of students who attended state approved or correspondence law school programs. These “non-traditional” students have a substantially lower pass rate than students from even the lowest ranked ABA schools. Again, this cohort was not considered in the study.

And finally, there are many bar takers who are relocating across state lines and taking an exam for the first time in years, or those who graduated more than 5 years ago and are just now taking the bar due to changes in their life circumstance. This growing group of both licensed attorneys and adults seeking entry to the profession later in life are not part of the study.

All 3 groups have dramatically lower pass rates than a traditional 3L from an accredited school. While the study only focused on the latter group, its exclusion of the non-traditional bar takers make the numbers look dramatically better than they really are.

5. There are More Repeat Bar Takers than First Time Takers in Many Jurisdictions

For many who read this study, it seemed like a happy picture when it comes to bar pass rates, but unfortunately, this is only a cropped version of the whole landscape. The overall pass rate in many jurisdictions continues to be an abysmal rate that in some states, consistently remains in the 30-35% range (we’re looking at you, California). How can that be true? Simply put, there are more repeat bar takers than first time takers in a number of jurisdictions (particularly on the February test administrations) and the result is a dramatically lower state pass rate than the numbers touted by the ABA in this report.
So, while it’s wonderful that so many 3Ls pass the bar exam within 2 years (4 exams) that still leaves a staggering number of bar applicants who fail their exams repeatedly. By focusing only on the privileged group of ABA accredited school graduates, we are ignoring a large (and growing) subset of applicants who do not pass. This includes foreign attorneys, non-accredited school students, distant applicants and the unfortunate 12-23% of the study group who do not pass in their first 4 exams. For those applicants, the traditional approaches to bar review and test taking have not proven successful. Studies like the ABA report only serve to mask and hide that unpleasant truth.