South Dakota bar exam not ‘easy’
The Nov. 5 editorial on the South Dakota bar exam may be misleading or at least confusing to prospective law students and others interested in the subject. As a former USD Law School dean (1993-2011), regular participant in American Bar Association accreditation inspections of other law schools, and long-time instructor of the Law School’s Legal Profession course, I am writing to provide clarification.
The editorial seems to suggest, based on a ranking of how easy respective states’ bar exams are, that the South Dakota bar exam has been made easier to compensate for the allegedly inferior legal education that USD Law students receive. If that is what the editorial is saying, it is erroneous.
First, one might infer from the article that the Law School controls the South Dakota bar exam. It does not. The South Dakota bar exam and bar admission generally are administered by the South Dakota Board of Bar Examiners, an agency of the South Dakota Supreme Court, which has constitutional, statutory and inherent authority to license and regulate lawyers. While the justices of the Supreme Court contribute in various ways to the educational program of the Law School, the Court’s sole purpose in regulating lawyers is to protect the public. Making the Law School look good by covering up an inferior legal education would be antithetical to the fundamental purpose of the Supreme Court and Board of Bar Examiners in the administration of the bar exam.
Second, the editorial is based on a ranking of how hard respective states’ bar exams are. This ranking, which was done by a Pepperdine law professor, is flawed. In defense of the Pepperdine professor, doing flawed rankings related to legal education is a lucrative industry, as demonstrated by U.S. News & World Report, so it seems to be a temptation too hard to resist. The ranking is based on a comparison of each state’s bar exam pass rate with LSAT scores (and, in another iteration, LSAT scores and undergraduate GPAs). One flaw is that the use of LSAT scores for this purpose is inconsistent with the most basic advice of the Law School Admissions Council about the use of its test, which is that it is valid only for the purpose of predicting the likelihood of success in the first year of law school.
An even more egregious flaw is that the ranking compares the bar pass rate for persons who took the bar in a particular state with the aggregate median LSAT scores of the students in that state’s law schools. These are two different sets of people, since the students from any state’s law schools take the bar exam in various states. The only thing this comparison proves is that the person doing it can’t tell kiwis from pomegranates.
Third, the ranking fails to consider all the factors that go into a particular state’s bar exam pass rate. While there is some uniformity among states because of the use of exam components developed by the National Conference of Bar Examiners (NCBE), there is still considerable diversity from one state to another. For example, all states do not use all the exam components developed by the NCBE. One component, the Multistate Essay Exam, is graded locally and may be graded according to law of general application or the law of the particular state. Each state determines the weight to be given to each part of the bar exam and the overall minimum passing score.
In addition to the divergent factors related to the exam itself, there is considerable diversity among the persons who take the exam. Some states permit graduates of foreign law schools to take the exam, while others do not. And, as mentioned previously, the test takers in any state come from law schools all across the nation. For example, 52 students from the last four USD Law graduating classes took the bar exam in 19 states other than South Dakota, and their first-time pass rate was 81%.
In addition to its reliance on this flawed ranking of bar exams, the editorial seems to rely on a faulty premise that the South Dakota bar exam must be easy because the pass rate is so high. Anyone who has taken a bar exam will attest that no bar exam is easy. In every state, it is a high-stakes exam intended to keep out the unprepared for the protection of the public. It has its critics, including me, but I would never criticize it as being too easy.
In trying to assess how hard a particular state’s bar exam is, there are many relevant factors. Obviously, one is the passing score set by each state’s supreme court and bar admission authority. Another may be the quality of the legal education received by those taking the test. A third is the time and effort each test taker puts into specific preparation for the exam, usually in a commercial bar prep course.
Prospective students and others interested in legal education do not need to rely on flawed rankings or editorials. There is extensive data on bar exams at ncbex.org, the NCBE website. Data about legal education, including school-specific data, is available at lsac.org, the website of the Law School Admission Council.
Lawyers like analogies, so I will end with one. Assume that LeBron James has more dunks this year while playing for the Cleveland Cavaliers than he did last year with the Miami Heat. There might be many reasons that would explain this. One would not be that the baskets are lower in Cleveland than they are in Miami. If you read an editorial that suggests this is the reason, dig a little deeper.
— Barry R. Vickrey, former USD Law School dean and professor emeritus
