Monterey College of Law presses Supreme Court to lower state's bar exam scores.

Old traditions die hard, but Mitch Winick, president and dean of the Monterey College of Law, is not letting that stop him from taking on a tradition that California law students have struggled with for 70 years: the state’s high minimum passing score for the bar exam.

The score—1440 out of 2,000—is the highest in the U.S. The next highest is North Carolina, which requires 1390. The national average is 1350.

“The bar exam is only supposed to measure the minimum competency for the first year of practicing law,” Winick says. “Are you good enough to have the job for the very first day? That’s what the exam is supposed to test.”

What the high score is doing instead is blocking competent law school graduates from practicing law, Winick says, especially minorities and people from rural areas.

It especially hurts Monterey County, he reasons, which has both a majority Hispanic population and a signifiant rural population. Winick says there are currently no full-time practicing attorneys based between Salinas and Paso Robles.

Data shows that if a 1390 pass score been used for the July 2016 bar exam, Hispanic candidates would have experienced a 26.1-percent pass-rate increase and African-Americans would have experienced a 40.4-percent pass-rate increase. The overall passing rate would have improved by 20.3 percent.

There’s been talk for more than a decade about lowering the score, but opposition is strong. The California Bar Association, which administers the test, has resisted change, Winick says.

Then last year a door cracked opened or the first time in the score’s 70-year history, and Winick and other law schools seized the opportunity to push the door further open toward change.

David Faigman, dean of one of the largest and most prestigious law schools in the state, UC Hastings School of Law, spoke out when only 51 percent of its students who sat for the July 2016 exam passed their first time taking the test.

Having an influential voice in the law community raise issues about the exam and its scoring helped the issue gain traction, Winick says.

“All of a sudden it became a public issue,” he says. “We wasted no time jumping on the bandwagon.”

Hastings and the 20 other law schools in California accredited by the American Bar Association wrote directly to the state Supreme Court asking for an emergency adjustment of the score from 1440 to 1350.

Winick organized the California Accredited Law Schools—the 19 accredited by the State Bar of California’s Committee of Bar Examiners, including Monterey College of Law—to file court papers showing they agree with the ABA schools’ request.

In February, the Supreme Court chose not to make an emergency adjustment, but it did rule that the court—and not the bar association—would set the minimum passing score.

“That was huge,” Winick says.

The court also ordered the bar association to conduct the first-ever comprehensive study on score-setting standards for the state bar exam. The final report, delivered to the court September 14, showed that scores between 1388 and 1504 would be adequate to declare someone competent to practice during their first year of law.

The bar association presented three options to the court: setting an interim score of 1390, an interim score of 1414, or making no change. Winick and his CALS colleagues are urging the court to go with a score of 1390.

The court is now accepting letters and opinions on the issue up until Oct. 2. Winick believes that the court may be preparing to rule before Oct. 15, the last date in order to change the required passing score for the July 2017 bar exam results.

It’s unclear how California’s score of 1440 came to be. Winick says there’s some indication that back in the 1950s there was agreement that 70 percent should be the passing score. By the 1980s the test was at 2000 possible points, and it was determined that 70 percent would be 1440.

“The irony is the math isn’t correct,” Winick says. (Seventy percent would be 1400, not 1440.)

Monterey College of Law is small with around 120 students, and as few as eight to 10 may sit for a bar exam. (The exams are held in February and July.)

Between 45 and 50 percent of Monterey graduates pass the first time they take the test. Those who don’t and take it subsequent times have a pass rate of 60-65 percent. Those rates put the school in the top third of California accredited law schools, Winick says.

In the meantime, it's frustrating for Winick to know that those who don’t pass would have passed them in other states and gone on to make good lawyers.

“We know they’re qualified," he says.

Editor's Note: An earlier version of the story stated that the California Bar Associations' final report was submitted to the state Supreme Court in July. It was submitted Sept. 14.