Office of the Consultant on Legal Education

July 10, 2008

Hulett H. Askew

Office of the Consultant on Legal Education

American Bar Association

321 N. Clark Street

21st Floor

Chicago, IL 60654-4740

Dear Bucky:

We understand that the Committee on Outcome Measures will be meeting this weekend to consider issues relating to the relationship between bar passage rates and other outcome measures. Attached is a copy of the resolution passed by the ABA Minority Caucus at the February 2008 midwinter meeting, along with the Ad Hoc Drafting Group Position Paper on Proposed Interpretation 301-6 that is referenced in the Minority Caucus resolution.

As you may recall, the National Bar Association, the Hispanic National Bar Association, and other major groups concerned with the impact of Interpretation 301-6 on diversity in the legal profession opposed the passage of this interpretation by the House of Delegates. In the face of this opposition, the Minority Caucus helped secure passage of the interpretation by supporting it in the attached resolution.

At the same time, however, the Minority Caucus resolution expressed its support for the proposal made by the Ad Hoc Drafting Group that the Council of Legal Education “[d]evelop and adopt a new standard in which bar results are only one of multiple outcome measures that will be used by the Section to determine, in light of each school’s mission, compliance with student achievement requirements.” As the resolution notes, this proposal by the Ad Hoc Group was also supported by seven past ABA presidents.

The purpose of this letter is to ask you to circulate this letter and the attachments to the members of the Special Committee on Outcome Measures in time for their consideration this weekend so that they are aware of this history.

As others have noted in past comments regarding Interpretation 301-6, the bar examination is an imperfect measure of a limited subset of analytical lawyering skills that has never been validated as a reliable measure of overall lawyering competency, other skills and values are equally, if not more important, to the competent representation of clients, and only a standard that includes bar results as one of multiple outcome measures can validly and reliably measure overall lawyering competency.

Any standard that elevates bar results to a stand-alone quantitative requirement necessarily devalues other skills and values, and has the potential to adversely affect other important ABA goals, including our mutual efforts to increase the diversity of the legal profession.

Thank you very much for your time and attention to this matter.

Sincerely,

LaVeeda Morgan Battle

Chairperson,

Council on Racial & Ethnic Justice

Attachments

MINORITY CAUCUS

OF THE AMERICAN BAR ASSOCIATION HOUSE OF DELEGATES

Position Paper Supporting the Adoption of Interpretation 301-6 by the American Bar Association House of Delegates

WHEREAS, the Minority Caucus of the House of Delegates notes that the Council on Legal Education had to develop a bar passage standard (Interpretation 301-6) in a compressed time frame pursuant to the mandate of the Department of Education.

WHEREAS, the Minority Caucus applauds the collaborative way in which the Council has received comments and suggestions from individuals and groups not only within the legal academy, but also in the larger profession, including the so called “Ad Hoc Drafting Group” to wit: Messrs. Blakey, Harbaugh, Johnson, Matasar and Nussbaumer.

WHEREAS, the Council’s latest proposal on Interpretation 301-6 has made several progressive changes, such as agreeing that non-persisters who only take the bar once and fail will not be counted in the calculation of ultimate bar pass rates, designed to help ensure that the Interpretation does not unintentionally adversely impact efforts to diversify the profession.

WHEREAS, the Minority Caucus remains concerned, however, that the potential adverse impact on diversity of Interpretation 301-6 cannot be ascertained at this time before the work of the Council’s special committee on outcome measures is completed, in the absence of a data study on its impact on law schools, and without a uniform national data tracking system being in place.

WHEREAS, the Minority Caucus therefore supports the position taken by the Ad Hoc Drafting Group in its Position Paper of December 28, 2007 (See Exhibit A) which requests that the Council:

1.  Develop and adopt a new standard in which bar results are only one of multiple outcome measures that will be used by the Section to determine, in light of each school’s mission, compliance with student achievement requirements.

2.  Promptly conduct a comprehensive five-year data study of the numerical requirements in its proposed interpretation and reexamine those requirements if either that study, or experience in administering the interpretation, suggests that the numerical requirements should be modified (i) prior to the adoption of a new outcome measures standard, or (ii) as part of the new multiple outcome measures standard.

3.  Work with the National Conference of Bar Examiners, the Law School Admissions Council, and individual bar examining authorities to develop a uniform national data tracking and collection system that will enable schools to provide the data necessary to establish compliance with the Interpretation.

WHEREAS, the Minority Caucus recognizes that the aforementioned positions of the Ad Hoc Drafting Group have received the support of seven past ABA Presidents to wit: Bill Falsgraf, Mike Greco, Robert Grey, Bob MacCrate, Bill Paul, Jerome Shestack and Shep Tate.

WHEREAS, the Minority Caucus recognizes that the Council is working diligently on the aforementioned issues with a number of constituencies, but that these issues cannot be resolved before Interpretation 301-6 must be adopted by the House of Delegates, in order for the Council to comply with the mandate of the Department of Education.

NOW, THEREFORE, the Minority Caucus supports the passage of Interpretation 301-6 in the ABA House of Delegates, but will closely monitor the Council’s efforts to undertake the actions set forth in the Position Paper of the Ad Hoc Drafting Group enumerated above.