Michigan State Bar exam changes set, but law schools are still unhappy

 by Gary Gosselin

Dolan Media Newswires
Michigan State Bar exam takers appear to be adapting to the no-scaling grading rule put in place last year, with first-time passers hitting 67 percent in July’s exam, compared to 62 percent for July 2012.

Total passers are at 60 percent in 2013, compared to 55 percent in 2012.

And, despite complaints by all of Michigan’s law schools, the Board of Law Examiners’ stance appears to be what you see is what you get from now on.

“Nothing has changed since the last exam; the board hasn’t altered its decisions to stop scaling,” said Marcia McBrien, spokeswoman for the Michigan Board of Law Examiners.

“It’s definitely going in the right direction,” said Joan W. Howarth, dean of Michigan State University College of Law, citing the jump in her school’s first-time passers from 66 percent in July 2012 to 79 percent July 2013, but adding that it’s not the near-90 percent rates the school used to post.

“We are definitely engaged in ongoing discussions, so far the BLE has at least responded to some of our criticism on testing methodologies,” Howarth said. “But there are still significant issues to be addressed.”

The State Bar of Michigan would not comment, with representatives saying they haven’t been involved in any discussions between the BLE and the schools.

Wayne State University Law School, University of Michigan Law School, University of Detroit Mercy Law School and The Thomas M. Cooley Law School were all contacted and did not comment.

The BLE responded with a follow-up email stating:

“There was dialogue between the BLE and the law schools last spring and into the summer. Justice [Brian K.] Zahra heard and responded to the law schools’ concerns. He also made it clear that scaling was eliminated for the protection of the public, and that, for that reason, the BLE would not return to scaling the exam. The BLE continues its efforts to ensure that the public is protected, through the fair administration of an examination that tests for minimum knowledge of Michigan law.”

In the meantime, the American Bar Association is considering Proposed Standard 315, a proposal to raise the percentage of passers for schools to maintain their accreditation from 70 percent to 80 percent, and the five law schools have sent three joint letters this year — in March, June and October.

Those letters complained about the testing methodology in Michigan now, and the inability to get out-of-state bar results, which would help them better figure passer rates from those who take out-of-state tests.

“In 2012, the Michigan Board of Law Examiners decided without notice or an opportunity to comment that it would no longer scale its essay scores to the multistate Bar Exam, as it had previously done, becoming only one of four states in the country that do not scale their essays this way,” the deans said in the October letter.

“As a result, the statewide first-time pass rate after appeals on the July 2012 exam plunged to 64%, 17 percentage points lower than the 81% statewide first-time pass rate after appeals on the July 2011 exam. …”

The deans reiterated that the BLE had no intentions of conforming to national norms. In their March letter, the deans point out that only Kentucky, Oklahoma, South Carolina, the Republic of Palau and the Virgin Islands do not scale. Kentucky and Oklahoma are rethinking that position, the letter said.

Zahra had said the BLE placed more emphasis on the essays because many takers just did not understand Michigan law, and that deficiency had to be addressed.

By not scaling and not tying the essays in with the multistate, that makes the test unreliable, Howarth said, and unreliability should be the death of a test, or its application, at least.

“We keep having ongoing dialogue with the [Supreme Court], the [BLE] and [SBM] so in my mind nothing is finished,” Howarth said. “It’s heartening for me to have our school finish higher, but not like before when the test was more reliable. I know that our profession is losing very talented new lawyers who are choosing not to stay in Michigan because of the problems with the bar exam, and that is not what this state needs.”

Timothy Dinan of Grosse Pointe-based Park Dinan & Associates PC, who has done exam appeals for about 20 years, has seen about 25-30 of this July’s tests. He said it’s pretty uniform grading but tough testing that’s very detailed and requires a good knowledge of Michigan law.

“It may be a reflection of better preparation by the schools,” Dinan said of the better pass rate. “But I don’t know if it’s any one factor. Are they 5 percent smarter? I do think grading remained stringent and if that’s the table that has been set.”

As far as the law school deans changing the minds of the BLE, he said, it probably won’t happen. “There is nothing to negotiate — the standard is set by the board, and as I understand it, it is still a writing/knowledge issue,” Dinan said.

“It’s certainly not settled,” Howarth said adamantly. “Problems remain, and in my judgment they remain significant.”