It is odd when the teachers complain the test is too hard. Such complaints should be viewed skeptically when, as in this case, they are raised in defense of the schools as much as the students. The Bar exam is not supposed to benefit either schools or students. It is supposed to benefit consumers.
I get to the skepticism below, but it is fair and important to note that the Deans' complaint makes a good point. The Bar apparently cannot justify the current minimum passing score either on its own or in comparison to the minimum score in other states. The Bar appears to concede as much, and that is embarrassing. One can hardly claim the bar protects consumers when one cannot connect the minimum score to consumer protection. Consumers need protection both from unqualified practitioners and from over-pricing, which might result from needless scarcity. As with much else in the world of self-regulation, the score may be set where it is because that is where it was set a long time ago. That is not much of a justification.
The same point applies to the subjects tested on the bar. Wills and succession? Really? Some wealthy individuals no doubt need sophisticated planning beyond the grasp of a good computer program, but to test a field in which the modal consumer is as well if not better served (ex ante) by software is perverse. I am biased, of course, because those are not my fields, and the wills and trusts folks no doubt have their own contrary examples. The more general point is that few if any lawyers will practice all subjects tested on the bar in the course of their careers. The array is a by-product of the choice to use a single one-size-fits-all test as a gateway to the profession.
I take the Bar's comments in the Recorder story to say that some check on competence is needed and that the exam is the best we have right now. That is fair as far as it goes, but the choice to use such a test inevitably will generate a lot of false posiitve results (people good at taking tests but not practicing law) and false negatives (people who would do well in their chosen field but trip up on fields they will never touch). No test will be perfect, so the fact of such error is not itself decisive, but one would hope the exam would be structured and administered to minimize such errors. That would require relating the minimum passing score to a benchmark of competence that has been validated from a consumer protection point of view. Judging from the Bar's comments, such a benchmark appears to be absent at present.
Skepticism is justified because schools have an economic stake in pass rates. The ABA recently took a renewed interest in pass rates as a metric for accreditation, though the house of delegates voted against tightening standards. (I hope the ABA ultimately adopts this proposal.) Some schools are nervous about their pass rates because they are nervous about accreditation and, more generally, about survival. Even apart from the ABA, prospective students may be unwilling to attend schools whose graduates fail too often. The schools' interest therefore align imperfectly with consumer interests. In some cases the interests of a school may be contrary to consumer interests--both for consumers of legal services and consumers of legal education. The welfare of schools is not a legitimate objective of self-regulation or of the bar.
Skepticism is also justified because recent declines in scores seem unrelated to changes in the exam itself. If the exam (and its scaling to the MBE) is a constant, it cannot explain variability in scores. Lowering the minimum passing score therefore risks targeting a symptom rather than a cause. It is also instructive to compare positions on the question of the minimum score for passing the bar, which some want lowered now without study, with positions on the ABA proposal, which some want studied more. In each case the concern is that a proposal would be studied into oblivion and buried. The difference in positions is most readily explained by the self-interest of schools.
A lot of criticism has been leveled at law schools over the past few years, much of which boils down to the contention that we cost too much and do too little. In some cases the critique is overstated but I think that basic point is sound. We should cost less and do more. The cost structure of schools makes this a hard problem to address, but that does not make the basic criticism less sound. The debate over minimum passing scores should be viewed in this context. The seeming and to some extent inevitable arbitrariness of the bar exam is a problem that needs to be dealt with. But we should not allow that problem to divert attention from the problems created by the present model of legal education.