Growing number of law school grads unable to pass bar exam

In the summer of 2014, officials at the University of South Dakota School of Law got startling news: One in four of the school’s most recent graduates who had taken the state bar exam failed to pass.

Just a year earlier, more than 90 percent in the previous class had passed the bar, which determines whether a law school grad can practice law in the state. Passage rates with percentages in the 90s and 80s were the norm.

But that was before 2014. Last summer the passage rate sunk to 63 percent. And this year, for first-time test takers who took the bar in July, the unofficial passage rate is closer to 50 percent.

The sudden collapse in graduates who can pass the bar exam is prompting fears that a shortage of lawyers in rural South Dakota could get worse. Although graduates from other states do end up practicing law in South Dakota, the vast majority of lawyers hail from the University of South Dakota, home to the state’s lone law school. USD is what’s known as an “infrastructure law school,” which provides a homegrown supply of lawyers needed for the state’s law firms, businesses and governments.

The decline in bar passage rates isn’t unique to South Dakota. Nationally, pass rates had been falling for several years. But the rapid decline in South Dakota has prompted officials to take action at USD in order to reverse the trend.

“Frankly, USD has been a bit behind in that, in part, up until 2014, we had no problem with the bar exam,” said Thomas Geu, dean of the law school. “When you’re hitting in the high 80s or 90s, you don’t worry about much.”

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Adding to the decline was a decision by the South Dakota Board of Bar Examiners to increase the minimum core needed in order to pass the bar. That decision went into effect after passage rates were already slumping, but it’s a decision that has increased the failure rate.

Nationally, South Dakota’s minimum score is equal to or greater than more than 30 other states.

Law school graduates who can’t pass the bar often find themselves saddled with huge amounts of debt while unable to get jobs as lawyers. Geu called it a “personal tragedy” for those unable to pass the exam. The growing number of students unable to pass the test keeps him up at night, he said.

“It bothers me a lot.”

Nationally, demand for law schools plummeted during the Great Recession. But the fixed costs of running a law school – the faculty and facilities – didn’t go away. Law schools began accepting higher risk students who in years past would not have been accepted – students with lower grade point averages or LSAT scores, the test used by law schools to assess candidates.

“Schools got desperate,” said Kyle McEntee, the executive director of Law School Transparency, a group that publishes data on law schools.

Law School Transparency published a report last year critical of law schools and their entrance policies. In 2010, the report found, 30 schools had admitted classes with at least 25 percent of students considered high risk – those with low LSAT scores. By 2014, that number had risen to 74 schools and 37 schools had admitted at least 50 percent of classes considered at-risk.

Some law schools are riding on the backs of students who are taking on debt while facing bleak prospects of passing the bar, McEntee said.

“I think law schools need to take a look at their decisions to take these risks and ask why they’re doing it,” he said.

Next month, the Council of the Section of Legal Education and Admissions to the Bar – an independent arm of the American Bar Association – will discuss a proposal that would require ABA accredited law schools to meet bar passage rates. Currently, law schools are required to meet certain passage rates, but no school has ever lost accreditation for not meeting the standard, McEntee said.

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“This is the job of the accreditors at their core,” he said. “They are in the job of consumer protection.”

Officials with the South Dakota Bar Association did not return messages last week.

But the proposal to hold law schools more accountable for bar passage rates has critics. Some fear that law schools will accept fewer minorities, thus hurting efforts to diversify the legal profession. Some minority groups from lower-income households have lower bar passage rates, according to the ABA.

Regardless, the University of South Dakota is stepping up the requirements it takes to get admitted, Geu said. This year, the school admitted a first-year class of 55. It was a smaller class than usual, but those admitted had higher credentials – better LSAT scores and GPAs. Higher LSATs and GPAs correlate to higher bar passage rates.

By itself, that might ensure that USD’s passage rate will trend upward again. But Geu said professors are integrating more bar style questions into their lessons, class sizes will be lower, and the university is currently advertising for a new position: A director of academic support and bar preparation.

“We are attacking this aggressively,” Geu said.

For many graduates, regardless of background, preparing for the bar is among the most grueling tasks of their lives.

Jon Hansen graduated from the University of South Dakota in May. He took one week off and then began studying full-time for the July test.

Hansen signed up to take the Barbri bar preparation class, which typically consisted of a three-to-four-hour lecture followed by hours of work on multiple-choice or essay questions. He estimated that he studied 10 hours a day.

“That’s basically the day,” he said. “Generally speaking, there’s no weekends off. You study Saturdays and Sundays, too.”

The stakes were high: Fail the test and it means the earliest he could take it again would be February, and the results wouldn’t be available to April. For many people taking the exam, passing the first time or retaking the test could mean the difference between holding a job or losing a job.

“It takes extreme dedication,” said Hansen, who works in a Sioux Falls law firm. “You basically have to put everything else on hold for those nine weeks.”

Geu is also pondering whether the school needs new teaching techniques for a generation of students that is good a multi-tasking, but perhaps less capable of focusing for eight to 10 hours on a single issue.

“We have great students, but as more and more of them are the new generation, they know so much more than we do,” he said. “But they also do things differently, and I’m not sure we’ve adjusted to that.”