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Groups Decry Increase In Bar Exam Cut Score Thomas Adcock New York Law Journal 10-01-2004 The State Board of Law Examiners' raising of the minimum bar examination pass score has elicited strong objection from New York's legal community. Officials of the law board, whose five members are appointed by the Court of Appeals, maintain that the controversial action is a fait accompli, and a spokesman for the state's high court agreed. The new policy calls for the passing score to increase from 660 points (of a possible 1,000) to 675, at the rate of five points per year beginning in July. But there is talk among lawyers across the state about mounting a challenge to raising the so-called cut score — possibly by asking the Court of Appeals to rescind or delay the law board's action. Word of the new policy came in the form of a press release issued Friday in Albany. Virtually all opponents — including the New York State Bar Association, the Association of the Bar of the City of New York, leaders of specialty bars, and the deans of all 15 state law schools — became aware of the increase by reading a news brief in Monday's Law Journal. The opponents expressed themselves in writing and in person during three public hearings in Albany in February 2003. At each session, the board was asked to drop the idea of raising the score entirely — or to at least delay a decision pending further study and review. Nothing further was heard on the matter until last Friday's announcement. "We thought silence was golden," said James A. Beha II, chairman of the City Bar's Legal Education and Admission to the Bar Committee. On Tuesday evening, the counterpart State Bar committee met in Albany to discuss the law board action "at length," according to a staff aide who asked not to be identified. The aide described members as "pretty outraged." In June, the aide further reported, the board met with State Bar committee members but failed to mention the policy shift in its forecast of new initiatives this fall. "It's very disappointing," said Mr. Beha, a litigation partner at Winston & Strawn. "Both what [the board] did, and the manner in which it was done — with no advance notice." The board based its policy change largely on three points: • In a January 2003 letter to the State Bar, it said it would likely raise the passing score due to "significant anecdotal evidence of incompetence in the profession." At the time, Professor Lawrence Grosberg of New York Law School denied the charge. "There's no demonstration that there are a whole lot of incompetents walking around," said Mr. Grosberg, then the chairman of the City Bar's Legal Education and Admission the Bar Committee. • Some state bar licensing organizations have higher passing scores than New York. • The board commissioned a study by clinical psychologist Stephen P. Klein, who interprets psychological tests for professional licensure boards around the country, that generally supported the concept of a higher score. The methodology of Mr. Klein's study was countered in a scorching report issued last year by the City Bar. "We very carefully looked at the scientific work that had been done in that study, and we indicated the problems with it," said Mr. Beha, who dismissed the interstate score comparisons as a "vanity contest." In a parallel report, the State Bar likewise challenged the Klein study. Both bar groups noted that Mr. Klein's credibility in similar research projects in Minnesota and Florida were likewise attacked by local bar groups. During the February 2003 hearings, minority and women's bar groups said that raising the passing score would unfairly affect low-income candidates who could afford neither the time nor money for costly tutoring and months of full-time study needed to prepare for the bar exam. Among that opposition group was Nelson A. Castillo, a Long Island solo practitioner and New York regional president of the Hispanic National Bar Association. In a statement issued yesterday, Mr. Castillo accused the board of limiting access to those "who have historically been barred from the profession due to a lack of resources and finances." He reiterated testimony he gave at public hearings, when he said there were no existing problems "with the selection of those qualified to enter the ranks of New York's legal profession — indeed, the New York bar examination is widely recognized as rigorous." Nancy O. Carpenter, executive director of the law board, was unable to say how many candidates might have failed the last bar exam if the passing score was 675 rather than 660 because such measurement would involve sorting through the tests by hand. A month before last year's public hearings, both the State Bar's House of Delegates and the City Bar first called on the Court of Appeals to halt the law board's apparent designs for change in the cut score. At Tuesday night's State Bar committee meeting, Kristin Booth Glen, dean of the City University of New York School of Law, said she offered to head a subcommittee to explore appropriate means of protesting the law board decision. Board's View Meanwhile, law board chair Diane F. Bosse said the unanimous decision would stand. "The bar exam is a licensing test. Its purpose is public protection," said Ms. Bosse, a partner in the Buffalo firm Volgenau & Bosse. Increasing the passing score, she added, "is appropriate to maintain the standards of competence that the public has the right to expect. "I have kept the Court of Appeals advised as to our process and our progress. This is the final determination." A spokesman for the Court said of the new policy, "It's a determination by the Board of Law Examiners. The board is appointed by the Court of Appeals to act independently." Mr. Beha is not so sure. "I would expect that the various bar committees would express their disappointment in letters" to Chief Judge Judith S. Kaye, he said. "But I don't know whether that will lead to any further review." An attendee of Tuesday's State Bar committee meeting in Albany who asked not to be identified said one option might be to go "informally or by appeal, to the Court of Appeals and say, 'Do you really want to do this [with] overwhelming opposition by the profession?'" — Thomas Adcock can be reached at tadcock@amlaw.com. |
