Ominous early signs emerge for July 2021 bar exam pass rates

September 15, 20217:10 PM UTCUpdated ago

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The average score on the Multistate Bar Exam is down slightly
Pass rates are down in eight of the nine states that have announced July results

(Reuters) - Data from the July 2021 bar exam is starting to roll in, and test-takers' performance isn't looking great.

The average score on the Multistate Bar Exam, the 200-question multiple-choice portion of the test, fell to 140.4. That's a decrease of 0.7 from July 2019, which is the last time a national cohort of examinees took the same test, the National Conference of Bar Examiners announced Wednesday.

But more alarmingly for test takers and legal educators, pass rates are down year-over-year in all but one of the nine states that have announced results, some by large margins. (Each of the early reporting states have relatively small cohorts of test takers.)

North Carolina’s overall pass rate dropped to 75%, down from 83% in July of 2020 — and that’s with the state officials lowering the passing score by two points this year in response to technical problems encountered by some who took the online exam. Iowa’s pass rate dropped 12 percentage points year over year, landing at 71% this July. New Mexico’s pass rate is down 18 percentage points, to 71%, while Nebraska’s plummeted 17 percentage points, to 72%. South Dakota is the lone increase thus far, picking up three percentage points to land at 73%.

The National Conference of Bar Examiners said the July 2019 results are the most comparable to the July 2021 exam, given that jurisdictions took various approaches in July 2020. The latest 140.4 MBE mean score falls in the middle of the 2020 results. Those who sat for an in-person exam in July 2020 posted an average MBE score of 146.1, while those who took an in-person exam in September had an average MBE score of 142.7. But the average MBE score among those who took the first-ever national online bar exam in October 2020 had an average MBE score of 137.2.

“It’s going to be really hard to make some of the true year-over-year comparisons, but undoubtedly I think we’re going to see the results fall — and fall pretty hard in some places compared to last year,” said University of Iowa law professor Derek Muller, who tracks bar exam results on his blog, Excess of Democracy. “Then it’s just a question of why.”

The well-documented technical problems that some examinees faced with the July 2021 online test may have affected their performance, Muller noted in an interview Wednesday. Test takers reported that their screens went blank during the exam, and their computers had to be rebooted. (ExamSoft, the company that provided the testing software, attributed to the problems to “memory management issues.”)

Pandemic fatigue among test takers and the move by many law schools to online or hybrid classes last year may be a more plausible explanation for lower pass rates, Muller said. The J.D. class of 2021 spent nearly half their law school careers in online or hybrid learning, and largely went to pass/fail grading in the spring of their 2L years, he noted.

“I’m thinking about online education, and that law school transitioning online resulted in a lot of learning loss,” Muller said. “That’s showing in the results now. That’s just speculation, so I think we’re going to want to see more about it. But that’s something law schools should be looking really hard at.”

It’s difficult to make head-to-head comparisons with the July 2020 exam because jurisdictions took varying approaches to that test, which was the first administered during the COVID-19 pandemic. Some smaller states moved forward with traditional, in-person exams in July. Others delayed their in-person exam until September. Many opted instead for a shortened online bar exam administered in October. And a small number of states introduced diploma privilege programs that allowed recent law graduates to skip the bar exam altogether.

All states gave the bar exam in July this year, but 29 jurisdictions opted for a full-length online exam while 24 gave an in-person test. New York, California, Florida and Illinois chose online exams both years, but 2020 examinees took a shorter test and had more than two additional months to study than did their July 2021 counterparts. (The National Conference of Bar Examiners has said it does not plan to offer future bar exams in the online format and will return to in-person testing only.)

Five of the nine states that have already announced July 2021 pass rates only gave full-length, in-person exams in both July of 2020 and 2021 — yet the pass rates fell significantly in four of those jurisdictions this year. That could lend credence to the idea that this year’s test takers were more burned out and less prepared than examinees the previous year.

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