Oregon Law School Deans failed to convince Supreme Court to increase Bar exam pass rate from 58% to 78%.

For years the cut score has been 284, and in 2016 that produced a pass rate of 58% – the same as the national average.

The Oregon Deans wanted a cut score of 266, which would have produced a pass rate of about 78%. The Oregon Supreme Court gave the Deans a cut score of 274, which should increase the pass rate for the students who just took the July exam to about 68%, making Oregon one of the easier states in which to get a law license. This in turn will boost the law schools’ US News rankings a bit, bring in more law students, and perhaps mean that UO won’t have to spend quite so much undergrad tuition subsidizing our law school. Just kidding, that last part will never happen.

This post was updated on 8/7/2017, 8/8/2017 and 8/10/2017 below, with info on my efforts to get public records on this order from the Oregon Supreme Court. Given that the Court is ultimately responsible for enforcing Oregon’s public records law you’d think they’d work a little harder on their own compliance, if only to set a good example.

Instead, as explained below their website lists a defunct email address for public records requests, they have a pdf form with a submit button that doesn’t work, their email responses are incomplete and uncommunicative, and they are either unaware of the law on fee waivers or they hope those asking for public records are. I’m still waiting on them, apparently the only person at the Oregon Supreme Court with the authority to waive a $3 public records fee is out of the office.

So I also asked the Oregon Bar Examiners Board for their public records. In contrast to the Oregon Supreme Court, their response was very professional (although they could use a new scanner). They provided their public records in less than a week, at no charge. Click the link for the full pdfs, I’ve only posted snippets:

1. Supportive letters to the Court on lowering the cut score from Jeff Howes of the Board of Bar Examiners (274), from Law Deans at UO and Lewis & Clark, and Willamette (266), and from the Oregon Student Bar Associations: http://uomatters.com/wp-content/uploads/2017/08/Official-letters-to-Court-BBX-PubRcrdsReq-Aug-17.pdf:

2. Emails between the bar examiners and the various helper deans: http://uomatters.com/wp-content/uploads/2017/08/Bar-examiner-and-Dean-emails-BBX-Records-JH-Aug-17.pdf:

I have no idea why they went into executive session for a vote on something like this. Is that legal?

And while I do not have an informed opinion on what the cut score should be, I was surprised at how superficial the discussion in these documents is, given the obvious disagreement between the Board Examiners and the Deans. Maybe they saved the substance for the executive session? Why did the Deans lose in court?

8/3/2017: Oregon Supreme Court quietly dumbs down Oregon Bar exam requirement:

California is currently engaged in a public debate about doing the same. There are many interesting issues. At the request of 20 California law school deans, the CA Bar commissioned and published a study, and the CA Supreme Court will soon take up the case of what to do. Google “california bar exam cut score” and you can find the study, many news stories, and a lot of blogging on both sides of the issue, including discussions in the American Bar Association journal, etc.

Oregon has already lowered its cut score – i.e. the score needed to pass the exam – and the process was far less transparent. There is this terse announcement on the Oregon State Bar website:

Dig a little deeper and you’ll eventually find a study from 2008, and a few brief statements in various committee minutes – but no sign of public discussion. Go to the Oregon Supreme Court website, and you’ll find no mention of this order, much less the arguments pro and con.  Keep digging and eventually you’ll find an old ABA report showing that Oregon’s pass score used to be 284 – from what I can tell that history has been removed from the Oregon Bar’s website.

The only evidence I can find of any public discussion is this op-ed in the Daily Emerald, by a UO law student, who is opposed to lowering standards. She reports that the motivation for lowering the cut score was a petition by Oregon law students.

What I’ve had to do to get the public records on this decision, with regular updates:

8/6/2017: I thought readers might be interested in what information the Oregon Supreme Court used in making this decision. Since nothing is online, I thought I’d make a public records request, and went to their website, here. There is no information about how to get public records, but there is a link to “Public Access & Case Inquiry“, which I followed. That takes you a page which has, at the bottom, a link to “Public Records Requests” That page has a link to another page, which has a link to “How to Request Public Records“:

For Supreme Court and Court of Appeals records, you must send your request to the Appellate Court Records Section. The request may be emailed to ACRS.records.request@ojd.state.or.us …

That email address doesn’t work:

But if you keep searching that page and look under “required information” you’ll find a link to what seems to be a fillable pdf form: http://www.courts.oregon.gov/forms/Documents/OSCAPublicRecordsRequest.pdf

Except that form doesn’t work either, nor does it give you any hint that it doesn’t work. Type away, sucker.

Fortunately I’d saved a screen-shot. I kept searching, and eventually found the general info email address, and submitted my public records request there, along with a note explaining that their public records email address was broken and gave this response, and attaching my PR request:

Here’s the response so far:

From: OJD.INFO@ojd.state.or.us
Subject: Re: Oregon Supreme Court public records request, bar exam cut score order
Date: August 4, 2017 at 1:56:10 PM PDT
To: Bill Harbaugh <wtharbaugh@gmail.com>

This is an automatic reply feature to let you know your message was received and what to expect:

Thank you for your email to the OJD info mailbox. The in-box is checked regularly during the week, but not daily. We will review and respond, if required, as soon as possible. Also please review the FAQs (http://courts.oregon.gov/OJD/pages/faq.aspx) for information that may be of help to you.

If you are writing to comment on a recent court opinion, we will pass on the comments as appropriate about the court and its work.

Sincerely,
Oregon Judicial Department

That FAQ link eventually takes you back to the broken email address and pdf form.

8/7/2017 update:  Today someone from the Supreme Court forwarded me the order, but they ignored the rest of my request:

On MondayAug 7, 2017, at 11:02 AM, …. wrote:

Mr. Harbaugh,

Attached is a copy of the Order lowering the pass score for the Oregon Bar examination.

Since this response was less than complete, I replied:

Thanks … , when do you expect the court will provide the other documents listed in my public records request?

Bill Harbaugh

They replied:

Mr. Harbaugh,

Would you mind sending me a list of the documents you requested. It is very difficult to read the screen shot of your public records request. Thank you.

I replied:

Hi – I requested

A copy of the order as well as “any documents received by the Court from the OS Bar, ABA, Oregon Board of Bar Examiners, or law school faculty administrators or students or others that were considered by the court in reaching its decision.”

Thanks,

Bill Harbaugh

8/8/2017 update: Monday afternoon I got a response from the Court, asking for $3. Their email and the subsequent back and forth, culminating in my proposal that they waive the fee and fix their public records compliance problems:

On MondayAug 7, 2017, at 2:27 PM, Appeals.docrequests@ojd.state.or.us wrote:
Good morning, the documents you’re requesting are in electronic format. There is a flat $3.00 document charge that will need to be paid before I can send the documents.

We accept VISA or MasterCard, you can contact me at the number below to process the payment.

If you prefer to send a check or money order, please make it payable to STATE COURT ADMINISTRATOR,
and send the payment to:

Appellate Records Office
1163 State St
Salem OR 97301-2563

I asked what had happened to my fee waiver request, and got this response:

On MondayAug 7, 2017, at 2:55 PM, Appeals.docrequests@ojd.state.or.us wrote:

Mr. Harbaugh, we have a Chief Justice Order dated November 17, 2014, setting Appellate Court and Administrative fees. I’m attaching a copy for your use.

(See attached file: CJO 14-067.pdf)

Your waiver request has been reviewed, and I’m sorry I have not been given the authority to waive the fees for this request.

My response:

Hi –

$3 is a small fee, I’m willing to pay it and I will call with my cc#, if after reading the explanation below (which I’d appreciate it if you would pass on to the responsible persons) the Court still insists on collecting this fee.

My understanding of Oregon’s Public Records law is that while state agencies can create fee schedules for public records, doing so does not release them of their responsibility to evaluate requests for public-interest fee waivers such as the one I made, on a case by case basis.

I’m basing this on the language in the DOJ’s Public Records and Meetings Manual at https://www.doj.state.or.us/wp-content/uploads/2017/06/public_records_and_meetings_manual.pdf. See page 16 for the section on fees, and page 18 for fee schedules, and then page 19 for the section on fee waivers, which notes:

The law requires a multi-part analysis to evaluate fee waiver or reduction requests.61 Under this analysis, a public body determines (a) whether the “public interest” test is satisfied, and (b) whether to grant a fee waiver or reduction.

(a) Public Interest Test Under ORS 192.440(5), a public body may reduce or waive fees if it determines that doing so is in “the public interest because making the record available primarily benefits the general public.” The Oregon Court of Appeals construed the public interest requirement for granting a fee waiver or reduction in a 2005 decision.62 It concluded that “[a] matter or action is commonly understood to be ‘in the public interest’ when it affects the community or society as a whole, in contrast to a concern or interest of a private individual or entity.”63 In addition, it stated that “a matter or action ‘primarily benefits the public,’ * * * when its most important or significant utility or advantage accrues to the public.”64 Therefore, the public interest test is satisfied “when the furnishing of the record has utility – indeed, its greatest utility – to the community or society as a whole.”65 etc.

Additionally, I’m concerned that:

a) the email address that the Oregon Supreme Court lists on its website for public records requests does not work.

b) the pdf form that the Court uses for public records requests does not work, and there is no indication of this fact after filling it out and hitting submit. This means that the court does not know who is submitting records requests, and those submitting them do not know that the court does not know that they’ve made a request. This could lead to all kinds of confusion.

c) Court employees responding to public records requests do not seem to follow common procedures for responding to public records requests. For example, aside from the fee waiver issue, the first response I received from the court to this request was partial and made no mention of how the rest of the request would be filled. It took several follow-ups to get an answer.

Given all these irregularities in the Court’s public records compliance, and the time I’ve been forced to spend on this matter so far in order to try and make documents public which really should have been posted by the Supreme Court on their website in the first place, I’d appreciate it if the Court would fix the email and website form issues and either post these documents or send them to me without charge so that I may do so.

Thanks for considering this proposal,

Bill Harbaugh

I suppose I should have asked how it was that they couldn’t read enough of the screen-shot to figure out what records I wanted, but could read enough to figure out my fee-waiver request should be denied.

8/10/2017: A promising response from the Supremes, except the person with the “administrative authority” to waive a $3 fee is out of the office til Monday:

Mr. Harbaugh, your fee waiver request is being routed to another administrative authority.  However that person is out of the office, and will be back next Monday.  I’m not sure how soon a decision will be made on your fee waiver.

… Paralegal
Appellate Records Office

Meanwhile I’ve also been trying to get related public records from the Oregon Bar Association’s “Board of Bar Examiners”. They don’t have much of a web presence, or give contact info for their 2 public members, but it wasn’t too hard to find the chair:

Sent: Friday, August 04, 2017 10:58 AM
To: HOWES Jeffrey <Jeffrey.HOWES@mcda.us>
Subject: oregon bar exam cut score change

Dear Mr. Howes –

I’m writing to you in your capacity as Board of Bar Examiners chair. I’m trying to get a copy of any comments submitted to the Board related to the Oregon Supreme Court’s decision to lower the Bar exam cut score, as well as any materials the Board submitted to the Supreme Court.

Any help you can provide would be appreciated.

Bill Harbaugh,
Editor and Blogger
http://www.uomatters.com
http://www.openuporegon.com

He sent a prompt acknowledgement:

From: HOWES Jeffrey <Jeffrey.HOWES@mcda.us>
Subject: RE: oregon bar exam cut score change
Date: August 7, 2017 at 11:33:27 AM PDT
To: UO Matters <uomatters@gmail.com>

Mr. Harbaugh –

I have received this request. I have forwarded this request to OSB Director of Regulatory Services Dawn Evans and to OSB Admissions Director Troy Wood. You should anticipate that Ms. Evans, Mr. Wood, or OSB General Counsel Amber Hollister will respond to you shortly.

Thank you very much –

JEFF HOWES

Jeffrey A. Howes
First Assistant to the District Attorney
Multnomah County, OR
Jeffrey.howes@mcda.us
503-988-5260

and then

On Monday Aug 7, 2017, at 2:59 PM, OSB Regulatory Services <RegSvcs@osbar.org> wrote:

Dear Mr. Harbaugh:

In accordance with ORS 192.440(2), this is to acknowledge our receipt on August 4, 2017 of your request for the following record[s]:

Copy of any comments submitted to the Board related to the Oregon Supreme Court’s decision to lower the Bar exam cut score, as well as any materials the Board submitted to the Supreme Court.

Having reviewed your request, we are able to inform you that:

The Oregon State Bar may be the custodian of at least some of the requested public records. We will provide an estimate of the time and fees for disclosure of the public records within a reasonable time.

For more information on the Public Records Request Procedure, please visit our website at http://www.osbar.org/public/pubrecfees.html.

Thank you,

Sergio Hernandez
Public Records Coordinator
503-431-6330
shernandez@osbar.org

I sent a follow-up last night (Aug 9) and this morning I received this helpful update:

Hi there, Mr. Harbaugh. I’m the primary person pulling together response to your request. We expect to have materials later today, I believe. Feel free to call me if you have any questions.

Kateri Walsh, Media Relations
Oregon State Bar
503-431-6406
kwalsh@osbar.org

8/10/2017: This afternoon Ms Walsh sent me the documents that I’ve now put at the top of this post, along with an offer to look for anything else I thought was relevant. Very helpful. Meanwhile I’m still waiting on the Supreme Court.

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13 Responses to Oregon Law School Deans failed to convince Supreme Court to increase Bar exam pass rate from 58% to 78%.

  1. honest Uncle Bernie says:

    So they want dumbed down standards so they can pass the bar exam, thinking this will allow them to pay off their stupendous student loans. But this will just flood an already overcrowded market with yet more underqualified and in any case unemployable lawyers. Not going to have a happy end.

    Kind of like grade inflation at the universities.

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    • Anonymous says:

      A lose lose situation for everyone

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    • just different says:

      This situation is nothing like grade inflation. The contention about grade inflation is that it supposedly makes it difficult to determine who the “good” students are. Not even the crankiest complainer about grade inflation thinks that incompetent students are being passed.

      As Bar Examiner below notes, the cut point for a professional exam is supposed to indicate the threshold for professional competence. It’s not supposed to artificially limit the number of licenses to match the number of available jobs.

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      • Dog says:

        oh I am quite a cranky complainer and I think incompetent students
        are passed all of the time. I know I certainly pass them …

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        • just different says:

          Maybe you’re passing students who should fail, but the data says that about the same percentage of students have gotten Fs for the past 50 years.
          https://economix.blogs.nytimes.com/2011/07/14/the-history-of-college-grade-inflation/?_r=0

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          • dog says:

            check the percentage of students that have gotten F’s at the UO …

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        • honest Uncle Bernie says:

          Let’s just say that the Gentleman’s C, as was once bemusedly spoken of, ain’t what it used to be. More like the Gentleman’s B now. Or at some of them fancy pants places, the Gentleman’s A-. Except, of course, we no longer speak of the students as Ladies and Gentlemen. Hah!

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  2. Former Bar Examiner says:

    Until the Supreme Court acted, Oregon had the third highest “cut score” of any US jurisdiction, at 284. Most states set the cut score at 270. California (one of only two states with a higher cut score) is in the process of lowering its cut score and New York’s cut score is only 266. Why does Oregon have such a high cut score? Is that score necessary to separate those who can competently practice law from those who cannot?

    Nothing of which I am aware suggests that the former 284 cut score was determined in a psychometrically valid fashion to distinguish competent from incompetent lawyers. Thus, to hold on to the score as some sort of sacred line makes little sense. Instead, Oregon should be able to justify its position as an outlier among the states. It cannot.

    I was a member of the 2008 Oregon State Bar Admissions Task Force. We recommended that the Supreme Court, in consultation with the Board of Bar Examiners and other interested groups, commission a standard-setting study to determine the
    appropriate cut score for the MBE in Oregon. Although it has taken ten years, I am pleased that the question of what a valid cut score should be was finally adressed by the Oregon Supreme Court.

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    • uomatters says:

      Thanks for this informative comment.

      I will post the arguments that the Supreme Court used in making its decision, when and if I get them.

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  3. Gone Girl says:

    If true, it is beyond disappointing that Oregon law students helped push to water down the exam standards. I’m old enough that the plummeting value of my UO law degree isn’t going to affect my career, but I feel bad for the young ‘uns who are soon going to have to put their degrees to use.

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  4. Anonymous says:

    The letter from the deans is deceptive and this plan is poorly conceived. At UO Law 83% of students pass the bar the first time. (Better than Willamette or L&C, but they are also good). The problem is they can’t find jobs. Ten months after graduation, only 60% of UO law graduates are employed in jobs using their J.D. And now they’re going to have to compete with a flood of new lawyers. What a dumb idea, Dean Moffitt and AD Commissiong. Lowering standards might help law schools, but it will hurt plenty of your students. Doesn’t anyone remember what motivated Margie Paris’s plan to fund jobs for unemployed grads?

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