New Study: A Five-Year Retroactive Analysis of Cut Score Impact: California’s Proposed Supervised Provisional License Program

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A new study published by AccessLex Institute this week is the second study released this month addressing the impact of the minimum passing score (known as the “cut score”) on the diversity of new admittees to the legal profession in California.

Selecting a qualifying score lower than the current 1390 cut score will significantly increase both the overall number of eligible participants and the diversity of the group eligible to participate in the proposed alternate licensing program.

A new study published by AccessLex Institute this week is the second study released this month addressing the impact of the minimum passing score (known as the “cut score”) on the diversity of new admittees to the legal profession in California. The study, published by Monterey College of Law, modeled how the selection of different qualifying scores would affect the number of previous California bar examinees, by race and ethnicity, who would qualify for the supervised provisional licensing program proposed last week by the State Bar of California Provisional License Working Group. The study, A Five-Year Retroactive Analysis of Cut Score Impact: California’s Proposed Supervised Provisional License Program, used actual deidentified scores of 39,737 examinees who sat for the California bar exam across a five-year period from 2014 to 2018. Five qualifying scores were selected for the simulation: 1440 - California’s previous cut score; 1390 - California’s current cut score; 1350 - the U.S. median cut score; 1330 - New York’s current cut score (the large jurisdiction that is most similar to California); and 1300 - the lowest cut score used by multiple U.S. jurisdictions (Alabama, Minnesota, Missouri, New Mexico, and North Dakota).

The results indicate that using California’s current 1390 cut score to determine eligibility would qualify relatively few previous examinees for the provisional licensing program. At a 1390 qualifying score, the total number of eligible participants from the five-year retroactive period would be approximately 1,802 previous examinees. However, using the national median cut score of 1350 as the qualifying score, the number of eligible participants would significantly increase to 4,180. Alternatively, using New York’s cut score of 1330 as the qualifying score would increase the number eligible to 5,030 and as many as 6,226 previous examinees would be eligible to participate if a qualifying score of 1300 were used. A similar relationship between the number of eligible examinees by qualifying scores also would be seen if the retroactive period was limited to a fewer number of years.

Another consideration is whether the provisional licensing program would provide the opportunity to improve the diversity of those eligible for licensure. The data indicate that using 1390 as the qualifying score also would have very little effect on improving the diversity of those eligible to participate. However, selecting a qualifying score of 1350 - the national median score, 1330 - the cut score used by New York, or 1300 - the cut score used by five other states, would significantly increase the diversity of the examinees eligible to participate in the proposed alternate licensing program.

Although the selection of a lower qualifying score increased eligibility across all groups, the percentage of increase for minority examinees who would be eligible to participate was significantly higher at qualifying scores of 1350 to 1300. For example, the increase in the number of African American examinees who would qualify for the program at a score of 1390 was only 6.65 percent but increased to 17.19 percent at 1350 and to 26.25 percent at 1300. Similarly, beneficial increases are seen for Asian and Latinx examinees as well.

According to the working group’s draft proposal, a provisionally licensed lawyer would be allowed to provide a broad array of legal services for clients, including “appearing before a court, drafting legal documents, contracts or transactional documents, and pleadings, engaging in negotiations and settlement discussions, and providing other legal advice, provided that the work is performed under the supervision of a qualified supervising lawyer.” Unlike other states that have adopted provisional licensure programs, the specific limits on what a provisionally licensed California lawyer would be allowed to do during the period of supervised practice would be up to the supervising attorney. Upon successful completion of the period of supervised practice, the supervising attorney will be required to certify that the provisional lawyer has the necessary skills to receive an unrestricted license.

The result of the simulation models indicated that selecting a qualifying score lower than the current 1390 score will significantly increase both the overall number of eligible participants and the diversity of the group eligible to participate in the proposed alternate licensing program.

This study follows a recently released AccessLex Institute report titled, Examining the California Cut Score: An Empirical Analysis of Minimum Competency, Public Protection, Disparate Impact, and National Standards, http://ssrn.com/abstract=3707812, that determined maintaining a high cut score does not result in greater public protection as measured by disciplinary statistics but does result in excluding minorities from admission to the bar and the practice of law at rates disproportionately higher than Whites.

Both of these AccessLex studies were led by Professor Victor Quintanilla, Indiana University, Maurer School of Law, Dr. Sam Erman, Professor of Law at the University of Southern California, Gould School of Law, and Michael Frisby, University of Michigan. MCL President and Dean Mitchel Winick and MCL Professor Christina Chong-Nakatsuchi worked with the research team as the lead writers for the reports.

SSRN Link to the full report: http://ssrn.com/abstract=3716951

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Mitchel Winick, President and Dean
Monterey College of Law
+1 (831) 582-4000 Ext: 1015
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