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The Ugly Truth About What's Going Wrong in American Law Schools

With test scores and bar-passage rates falling, academics grope for answers

The news from law school campuses has gone from bad to worse. Who's suffering? Does it matter?

My colleague Natalie Kitroeff ably chronicles the dismal times in legal education. "Fewer people with high Law School Admission Test scores are applying to and enrolling in law school, and less-qualified students are filling their slots," she reports in her latest dispatch, and she's got the stats to prove it.

In December, Kitroeff investigated a burgeoning controversy over why bar exam passage rates plummeted last year, a trend, she notes, that appears to be persisting, if at a more moderate rate, as results begin to trickle in this year.

Are law students getting dumber, foreshadowing a future dip in the talents available to legal clients nationwide? Or are aspiring attorneys getting a bad rap?

The National Conference of Bar Examiners (NCBE), the nonprofit that creates the multiple-choice portion of the test used by many states, goes with the diminished-intellect theory. "The group that sat [for bar exams] in July 2014 was less able than the group that sat in July 2013," NCBE President Erica Moeser said in a blunt memo to law deans last October.

"That's just baloney," Brooklyn Law School's Dean Nick Allard tells me. An innovative leader scrambling to keep his venerable institution afloat in a shrinking legal job market, Allard alleges darkly that unnamed pooh-bahs are fixing the system to exclude his scrappy students. "It's a jaw-dropping story," he says. "The NCBE is a powerful testing organization with a web of financial interests that has an outsize role in determining the future careers of law school graduates." Tens of thousands of law school graduates, he adds, "are ripped off by the bar exam scam twice a year."

The NCBE's Moeser flatly denies there's anything awry. Her group rechecked its scoring and determined "the results are correct."

The best dispassionate analysis I've found suggests a testing snafu last year, but one that doesn't account entirely for the larger air of crisis. Blogging at Law School Cafe, Deborah Merritt, a law professor at Ohio State University, explained in late March how a severe software glitch exacerbated test-taker anxiety and, through the magic of esoteric scoring techniques, rippled across the country. It's a complicated account, well worth reading in full.

Tallying the damage, Merritt estimates that "hundreds of test takers—probably more than 1,500 nationwide—failed the bar exam when they should have passed." That's not the tens of thousands of casualties mourned by Allard, but it's a lot of people whose exams deserve another look. Over to you, NCBE.

Last year's bar exam hiccup doesn't fully account for the ominous clouds hanging over law schools. The widely reported contraction of legal employment won't be solved by tinkering with tests. There aren't enough jobs for the 120,000 students enrolled at accredited law schools, let alone those poor souls wasting their tuition dollars at non-accredited institutions.

Darkening employment prospects, reasonably enough, have discouraged some number of smart college seniors from applying to law school in the first place. Diminishing applications leads to increased competition for top students, forcing less prestigious schools to fill seats with less promising candidates. Which takes us back to the shrinking number of impressive LSAT scores.

Elite schools are doing fine (for now). It's the former night schools, the stand-alones, and the lesser state schools that are seeing graduates struggle—both on the bar exam and in the job market. Check out a Nov. 25, 2014, letter sent to the NCBE by Allard and 78 other law deans, questioning "the integrity and fairness" of the July 2014 exam. No Harvard, Yale, or Stanford.

Hard questions have to be asked at law schools whose modest reputations and forgiving admission standards do not ensure their graduates gainful employment. Time to reduce entering classes? Shut some schools altogether? The law education bubble is over.