As thoroughly reported here at Above the Law, bar exam passage rates have plummeted across the nation for the past several years. In California in particular, test-takers’ performance has been outstandingly poor, prompting a chorus of critics to demand that the state’s cut score be lowered so that more law school graduates will be able to pass the exam and become practicing attorneys. As it stands, California’s required passing score of 144 is higher than that of 48 other states, with only Delaware’s cut score being higher. For decades, California’s bar exam has been referred to as the hardest in the country, but year in and year out, data has revealed that to be untrue. With the state’s mean scaled MBE scores continuing to be higher than the national average, it seems that California’s bar exam is simply the most difficult to pass thanks to its arbitrarily high cut score.

After a stunningly low overall passage rate of 34.5 percent for the most recent exam, the State Bar of California committed to study the test and examine the cut score, but it looks like the California Supreme Court thought that the process was taking too long, so the justices took it upon themselves to do something.

According to the Daily Journal (sub. req.), in an unprecedented move, the California Supreme Court has decided to strip the Committee of Bar Examiners of its authority to decide the minimum score needed to pass the exam:

The state Supreme Court amended its rules to specify only the court has authority to set the passing score on the exam. The changes to the “California Rules of Court,” which become effective 2018, also empower the court to appoint a majority of members to the Committee of Bar Examiners. There has not previously been a rule mandating the court set the passing score, said Cathal Conneely, a spokesman for the Supreme Court. The court has the authority to do so, and “the new rules just spell it out and make it absolutely clear,” Conneely said Friday. The court’s action comes as the State Bar and bar examiners study whether to recommend a lower passing score on the attorney licensing test because of falling success rates.

As noted on the Fleming’s Fundamentals of Law website, the court’s goal was to create scoring practices in California that were not only fair, but uniform with the rest of the country. Mark Stone, chair of the Assembly Judiciary Committee, said, “We also believe [the new rules] are consistent with case law regarding the level of oversight that’s required of the Supreme Court in order to protect the state from antitrust liability. While the Committee of Bar Examiners can recommend the content and the passing score, the Supreme Court has the ultimate authority over those decisions.”

One wonders when the California Supreme Court will set a new passing score for the state’s exam. While we’ll likely have to wait until after scores and passing rates from this summer’s new two-day exam are released for any movement on this front, there is a new hope for law students in California who are fearful that they’ll be unable to pass the state’s bar exam due to its high cut score.

Will a lower cut score in California serve to further dumb down the profession, or is it an opportunity for the state to align itself with the rest of America when it comes to bar exam cut scores? Please feel free to email us, text us at (646) 820-8477, or tweet us @atlblog to let us know what you think.

UPDATE (3:45 p.m.): According to Joanna Mendoza, elected trustee of the State Bar of California, via Twitter: “The study on the CA bar exam cut score should be finalized next month and sent to the CA Supreme Court by Sept. It has already been publicly stated that a new cut score could be retroactively applied to July exam by Sup. Ct.” This summer’s test-takers may luck out after all.

State Supreme Court says it must set bar exam passing score [Daily Journal (sub. req.)]

Committee of Bar Examiners Stripped of Authority to Decide Bar Passage Scores [Fleming’s Fundamentals of Law]

Earlier: Who’s To Blame For School’s ‘Horrific’ Bar Results? Maybe The California Bar Examiners.

Tightening Bar Pass Standards And The ‘California Problem’

Staci Zaretsky has been an editor at Above the Law since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, or comments. You can follow her on Twitter or connect with her on LinkedIn.