Guest Column: Adherence to Bar Exam Makes SD Law License Less Portable
By Cory Allen Heidelberger on 2023-08-24
USD Law Dean Neil Fulton’s (paywalled) essay in The Dakota Scout defending the bar exam has stirred some disagreement from a few of his graduates. 2017 USD Law graduate Jun Byung Park, who can’t practice in South Dakota because he hasn’t passed the multiple-guess portion of the bar exam, says the bar exam is unfair and calls on Dean Fulton to expand his rather limited vision of alternative methods of licensing lawyers.
First, no one has suggested that the “determination of competency” be eliminated. All factions agree that a “determination of competency” should be made by the licensing authority.
Second, South Dakota’s current determination of competency includes an eight hour testing period of 200 multiple choice questions in a time-constricted setting — a method which has been proven flawed because it systematically discriminates against slow readers, test takers who suffer disabilities and test takers who come from culturally diverse backgrounds.
Third, Fulton’s viewpoint argues that the elimination of the current method will result in adverse portability consequences. Nonsense. Portability can be maintained through the maintenance of the current method, supplemented by a parallel pathway to licensure. For example, in Wisconsin the law graduates may obtain licensure through the NCBE testing and thereby retain portability, BUT applicants may also obtain licensure through a curriculum-based option which insures competency. Wisconsin permits both.
Fourth, although Fulton brags about portability, the fact remains that South Dakota is one of the least portable jurisdictions in the United States. South Dakota refuses to join the Uniform Bar Exam network which permits portability to other UBE jurisdictions. Currently 41 jurisdictions have adopted the UBE. But, not South Dakota.
The greatest irony of Fulton’s viewpoint is that he argues in favor of a system that has already been recognized nationally as flawed. Even the NCBE, recognizing the flaws in persisting in the utilization of 200 multiple choice questions administered in timed setting, is charting a course for alternatives [Jeffery Holt, op-ed, received by Dakota Free Press 2023.08.23].
National Conference of Bar Examiners, “Uniform Bar Examination: Jurisdictions That Have Adopted the UBE,” screen cap 2023.08.24.
Any article that contains the phrase “adverse portability consequences” should be memorable and is definitely worth reading.
Kyle Krause
2023-08-24 08:37
I believe the only difference between South Dakota’s bar exam and the UBE is that we have an additional Indian law question. That is a good thing given the demographic and geographic composition of our state.
M
2023-08-24 09:07
South Dakota does not combine the written and multiple choice portions when calculating a passage score- a UBE state does combine scores. SD is non-compensatory. The bar exam prior to 2015 did combine the scores but the bar exam was changed in 2015, for no apparent reason. It is also recommended that the results be scaled – SD does not scale.
SD is not a UBE state, when 41 other states are UBE. We have a one of a kind bar exam- the only type in the nation. There is no portability with our bar exam. If a student takes a bar exam in North Dakota and reaches a certain score the test taker can transfer that score to another UBE state and get licensed in that state- but not South Dakota we are not a UBE state. The bar exam failure rate was 61% in SD in 2015, and has finally reached a passing rate of 58% now. Prior to 2015 our passage rate was nearly 98%. The ABA has allowed USD to calculate their bar exam scores differently now so the school does not lose accreditation.
This bar exam change in 2015 has caused students to attend law school out of state and practice law out of state. We have a lawyer shortage in SD. The most vulnerable in our society- single parents, the elderly, veterans etc are denied access to Justice. It’s time this situation be fixed.
Ryan
2023-08-24 09:24
third paragraph of holt’s defensive comments – should be ensures competency, not insures
i love a sweet sweet grammatical error showing up in the most inconvenient conversations
John
2023-08-24 11:31
Mr. Fulton suffers from the blind spot of, ‘it worked for me, it’ll work for thee.’ His position is the epitome described by Maurice Maeterlinck: “At every crossway on the road that leads to the future, each progressive spirit is opposed by a thousand men appointed to guard the past.”
During the height of in the immediate post-Vietnam War, US Army general officers strongly argued that there was nothing ‘wrong’ with the US Army: it’s soldiers, doctrine, training, organization, etc. , the Army’s faults were outside the Army. Fortunately the blame-the-others-generals lost the arguments and visionaries like DePuy (SDSU ’41) and Thurman, sacked the blamers and rebuilt the Army. But what Thomas Ricks (journalist! and author) who studied US Army generalship discovered – that US Army generalship is stuck in mediocre –because it adheres to its past ground in the Korean and Vietnam Wars. Those decrypt models, ‘worked for me (sayeth the generals that mucked national treasure through Iraq and Afghanistan)’. While the Army soldiers, doctrine, equipment, training all improved – generalship is worse than it was in WWII.
On the other hand, it’s one hell of an indictment of the law school and its faculty that their graduates perform abysmally on the bar exam. Do the B-school grads flop on the accounting exam at those rates; the medical school grads;, and at DePuy’s SDSU – are the pilot graduates falling out of the sky or falling their FAA checkrides? Comfortable puffery of ‘teaching the theory of law’ is not good enough. It might be time for South Dakota’s Regents to have a “DePuy” or “Mad Max Thurman” clean house.
John
2023-08-24 11:40
Specific analysis of the failures are required. What type questions are the applicants consistently failing: contracts, criminal law, criminal procedure, civil procedure, constitutional law, business law, etc.? Narrow that down. Then fix specific problems (professors and their sponsors). If however, the problem is across the board . . . then (as per the US Army in Vietnam’s performance in the above example) – then, the problem is systemic requiring a tearing down, reorganizing, and rebuilding. I suspect the problem is the latter, but withhold judgment pending the raw specific data.
P. Aitch
2023-08-24 12:12
Hear, hear John of DFP
Kyle Krause
2023-08-24 15:41
Our bar passage rate is not 58% as people have been saying. That number seems to come from the number of USD graduates who eventually become licensed in South Dakota, which is very different than the number of USD graduates who pass the bar (the most obvious reason being that many will take the exam in another state). If someone who wants to be an attorney continually conflates those numbers, that person might not have the analytical ability to be an attorney.
Bar passage rates suggest that South Dakota’s bar exam is not substantially harder than the bar exam in most states, including a large portion of the states that use the UBE. For the July 2022 exam, 70% of test takers passed in South Dakota, and 79% of first-time test takers passed. Here’s how that compares to neighboring states, which all use the UBE:
1) North Dakota: 59% and 65%
2) Minnesota: 83% and 88%
3) Iowa: 79% and 83%
4) Nebraska: 80% and 82%
5) Wyoming: 55% and 61%
6) Montana: 77% and 82%
A large portion of the differences between the state passage rates is also attributable to the class composition at each state’s law schools, which are going to make up the bulk of bar exam test takers in each state. Here are the very quick search results for “average LSAT score at [insert school name].”
USD: 150
University of Minnesota: 164
University of Iowa: 163
Drake: 155
Creigton: 153
University of Nebraska: 158
University of Wyoming: 148-153
University of Montana: 154
University of North Dakota: 150
It is not surprising, and in fact should be expected, that USD grads will pass the bar at a lower rate than graduates of the slightly more prestigious law schools in neighboring states. Similarly, bar exam test takers in South Dakota do better than those in Wyoming and North Dakota, which both have law schools accepting students with similar LSAT scores to USD.
P. Aitch
2023-08-24 16:12
The 1L class at University of Colorado—Boulder has a median LSAT of 164. The 25th percentile LSAT is 159 and the 75th percentile LSAT is 166.
Kyle Krause
2023-08-24 16:54
This cite has a nice graph of first-time bar-exam passage rates for USD law grads. Notably, the downward trend to some rather abysmal years started in 2014 rather than in 2015 when the changes to the test were made. https://www.lawschooltransparency.com/schools/southdakota/bar
The significant drop in bar passage rates from 2014 to 2017 was a national trend which also showed up in South Dakota. Our changes to the bar exam were not the primary cause of our declining bar passage rates. MBE scores across the nation declined significantly in those years, primarily because few people applied to law school and law schools therefore admitted less qualified applicants. This was mostly the result of the economic downturn of 2008-2009, which significantly impacted the legal profession as well. This caused fewer people to want to go to law school in 2010 and the following years, and those students started graduating in 2014. Back in 2009-2010, legal services organizations in South Dakota would get literally hundreds of applications for an open position. Now they perpetually have multiple open positions, and even deputy states attorney jobs are going unfilled. https://www.abajournal.com/news/article/multistate_bar_exam_scores_drop_to_lowest_point_ever_are_low_end_lsat_score/ https://abovethelaw.com/2015/09/as-bar-exam-scores-continue-to-plummet-early-results-reveal-worst-performance-in-decades/
We can probably figure out an alternative pathway to legal licensure that does as good as the bar exam at ensuring competency. I do think we should be exploring it. Having the portability of a UBE score while still getting people to learn about Indian law would also be a good thing. But, I also tire of people blaming our bar exam for their failure to get licensed though. There are only a very, very small number of cases on the margins where our particular scoring system makes a difference versus the UBE.
M
2023-08-24 19:04
Kyle: I have the raw scores from the Board of Bar Examiners. The true data that shows the pass/failure rate. Have you seen those scores? I have. It’s easy to state things incorrectly when you don’t have all the data.
Kyle Krause
2023-08-24 20:33
M: 58% is contrary to any publicly available information. Are you claiming that only 58% of test takers passed the bar but they are publicly reporting a different percentage? That would actually be a scandal. My suspicion is that you are misinterpreting the data you have, especially since I saw the same 58% number used misleadingly yesterday.
grudznick
2023-08-24 20:36
Mr. H likes to call out paywalls mostly on his internet advertising competitors, or fellows like the young Messrs. Ellis and Sneve who are up and comers and I am told have a pod cast of recordings.
Mr. Krause is a fellow with some ADHD gone awry, I suspect.
M
2023-08-25 00:33
Oh Kyle. You are finally catching on. Bingo! Finally.
Kyle Krause
2023-08-25 08:19
M: I do not believe you. If you have evidence that actual bar passage rates are lower than what is being publicly reported, produce it. I’m sure Cory and innumerable other reporters would love to break that story.
A Rule Change was put before the Supreme Court to return to the combing of the multiple choice and essay position of the bar exam and it was denied. We have a one of a kind bar exam. South Dakota is only state in the nation that calculates the bar scores/passage rates this way. Why are 41 states UBE states and not SD. I know every pass rate/failure rate since the bar change in 2015. In 2015 39% failed. It’s not the school, it’s not the students, it’s the calculation of the exam itself. All students pass the written, ethics portion. It’s the multiple choice. Which does not have one question on SD law, by the way. 200 questions…25 of the 200 questions are not graded. So you could have answered all or some of the 25 questions correctly but they are not included in your score calculation. And they don’t tell you how many of the 25 you answered were correct. Yes go back to the UBE.
M
2023-08-25 15:46
A Rule Change was brought before the Supreme Court to return to the combing of the multiple choice and essay position of the bar exam and it was denied. We have a one of a kind bar exam. South Dakota is only state in the nation that calculates the bar scores/passage rates this way. Why are 41 states UBE states and not SD. I know every pass rate/failure rate since the bar change in 2015. In 2015 39% failed. It’s not the school, it’s not the students, it’s the calculation of the exam itself. All students pass the written, ethics portion. It’s the multiple choice. Which does not have one question on SD law, by the way. 200 questions…25 of the 200 questions are not graded. So you could have answered all or some of the 25 questions correctly but they are not included in your score calculation. And they don’t tell you how many of the 25 you answered were correct. Yes go back to the UBE.
M
2023-08-25 15:49
Bar Exam July 2015
Correction 39% passed 61 failed. I stated it incorrectly above.
M
2023-08-25 16:17
Bar Exam Passage for July of Each Year
2019
51 took the bar 33 passed – 64% passed
2020
57 took the bar 27 passed – 47% passed
2021
60 took the bar 33 passed – 33% passed
Arlo Blundt
2023-08-25 16:31
To me, the whole controversy goes back to South Dakotans being quite limited in their mastery of the English Language. If anything, the tests measure the prospective Lawyers ability to understand, use, and manipulate the English Language. They cannot demonstrate their abilities with Critical Thinking until they demonstrate a mastery of the English Language.
Kyle Krause
2023-08-25 16:54
M: Are those numbers just USD grads, or are those total South Dakota bar exam test takers? Those numbers do not match what I am able to find publicly for total test takers.
M: Nothing in that ABA Journal link supports your specific numbers. It is a 2020 article based on scores from 2017. The data I have found and linked shows USD grads failed to pass at a sufficient level for accreditation for three classes – 2015, 2016, and 2017. The provisional accreditation was due to those years.
M
2023-08-26 16:16
The ABA allows them to calculate their passage rates so they can retain accreditation. I’m not going to argue with you because I am right and you are misinformed. That’s why the SD Supreme Court is studying this very topic. A Representative made the failure rate public before the state legislature.
Kyle Krause
2023-08-26 18:11
M: Your numbers appear to be just made up. A legislator saying something definitely does not make it true. I’m far more inclined to believe the Chief Justice of the South Dakota Supreme Court and the dean of the law school.
The ABA’s standard is not that complicated. Of students who take the bar exam, 75% have to pass within two years. USD has met that standard since 2018.
Your numbers definitely do not need to be accurate for our Supreme Court to reevaluate the bar exam. There has been a national movement to do so for a while now, it makes sense to reevaluate from time to time, and the legislative push to change things brought the issue to the fore.
It should not be that hard to agree on objective fact. I have yet to see any evidence to suggest that your unsourced numbers are remotely accurate.
Scott McGregor
2023-08-28 02:19
Since we sold naming rights to the Law School to please T. Denny Sanford we should just sell the place to him and let it be moved to Sioux Falls. Let the private sector deal with the bar exam problem. Money talks.
Stuart Dent
2023-09-09 18:19
I’m having a really hard time finding any relevance to this response.
(1) There are certainly people arguing against the current SD bar exam as an appropriate “determination of competency.” Maybe distance disconnects the author from the conversation so much that he doesn’t realize this? Fulton at least identified enough taking this stance that he felt comfortable addressing it.
(2) the UBE also has a 200-question long-term multiple choice portion identical to South Dakota’s, yet the author holds out the UBE as an appropriate “determination of competence.” [While scored differently, the format of this portion of the exam is the same, and in that similarity is equally discriminatory.]
(3) it is apparent here that the author fails to understand the definition of “portability.” Fulton defined portability as the ability to obtain a license outside of SD with a JD from USD. A redesigned curriculum in favor of diploma privilege would necessarily be more SD-focused, disservicing out-of-state bar takers and portability. Fulton actually talked at length in his article about possible alternative paths to licensure in SD. This makes me wonder how in-depth the author actually read Fulton’s article to which he responds.
(4) only confirms the author’s misunderstanding of the definition of portability. A jurisdiction, by its very nature, is not portable, where a degree *can* be. This is illustrated by the fact the author was unable to obtain a license in South Dakota, yet the *portability* of his degree allowed him to obtain licensure in North Dakota.
This response to Fulton is weakly reasoned, self-contradicting, and ultimately fails to understand and respond to Fulton’s arguments. This article alone may be sufficient evidence that the exclusionary function of the SD bar examination’s “determination of competence” is working exactly as intended.
Any article that contains the phrase “adverse portability consequences” should be memorable and is definitely worth reading.
I believe the only difference between South Dakota’s bar exam and the UBE is that we have an additional Indian law question. That is a good thing given the demographic and geographic composition of our state.
South Dakota does not combine the written and multiple choice portions when calculating a passage score- a UBE state does combine scores. SD is non-compensatory. The bar exam prior to 2015 did combine the scores but the bar exam was changed in 2015, for no apparent reason. It is also recommended that the results be scaled – SD does not scale.
SD is not a UBE state, when 41 other states are UBE. We have a one of a kind bar exam- the only type in the nation. There is no portability with our bar exam. If a student takes a bar exam in North Dakota and reaches a certain score the test taker can transfer that score to another UBE state and get licensed in that state- but not South Dakota we are not a UBE state. The bar exam failure rate was 61% in SD in 2015, and has finally reached a passing rate of 58% now. Prior to 2015 our passage rate was nearly 98%. The ABA has allowed USD to calculate their bar exam scores differently now so the school does not lose accreditation.
This bar exam change in 2015 has caused students to attend law school out of state and practice law out of state. We have a lawyer shortage in SD. The most vulnerable in our society- single parents, the elderly, veterans etc are denied access to Justice. It’s time this situation be fixed.
third paragraph of holt’s defensive comments – should be ensures competency, not insures
i love a sweet sweet grammatical error showing up in the most inconvenient conversations
Mr. Fulton suffers from the blind spot of, ‘it worked for me, it’ll work for thee.’ His position is the epitome described by Maurice Maeterlinck: “At every crossway on the road that leads to the future, each progressive spirit is opposed by a thousand men appointed to guard the past.”
During the height of in the immediate post-Vietnam War, US Army general officers strongly argued that there was nothing ‘wrong’ with the US Army: it’s soldiers, doctrine, training, organization, etc. , the Army’s faults were outside the Army. Fortunately the blame-the-others-generals lost the arguments and visionaries like DePuy (SDSU ’41) and Thurman, sacked the blamers and rebuilt the Army. But what Thomas Ricks (journalist! and author) who studied US Army generalship discovered – that US Army generalship is stuck in mediocre –because it adheres to its past ground in the Korean and Vietnam Wars. Those decrypt models, ‘worked for me (sayeth the generals that mucked national treasure through Iraq and Afghanistan)’. While the Army soldiers, doctrine, equipment, training all improved – generalship is worse than it was in WWII.
On the other hand, it’s one hell of an indictment of the law school and its faculty that their graduates perform abysmally on the bar exam. Do the B-school grads flop on the accounting exam at those rates; the medical school grads;, and at DePuy’s SDSU – are the pilot graduates falling out of the sky or falling their FAA checkrides? Comfortable puffery of ‘teaching the theory of law’ is not good enough. It might be time for South Dakota’s Regents to have a “DePuy” or “Mad Max Thurman” clean house.
Specific analysis of the failures are required. What type questions are the applicants consistently failing: contracts, criminal law, criminal procedure, civil procedure, constitutional law, business law, etc.? Narrow that down. Then fix specific problems (professors and their sponsors). If however, the problem is across the board . . . then (as per the US Army in Vietnam’s performance in the above example) – then, the problem is systemic requiring a tearing down, reorganizing, and rebuilding. I suspect the problem is the latter, but withhold judgment pending the raw specific data.
Hear, hear John of DFP
Our bar passage rate is not 58% as people have been saying. That number seems to come from the number of USD graduates who eventually become licensed in South Dakota, which is very different than the number of USD graduates who pass the bar (the most obvious reason being that many will take the exam in another state). If someone who wants to be an attorney continually conflates those numbers, that person might not have the analytical ability to be an attorney.
Bar passage rates suggest that South Dakota’s bar exam is not substantially harder than the bar exam in most states, including a large portion of the states that use the UBE. For the July 2022 exam, 70% of test takers passed in South Dakota, and 79% of first-time test takers passed. Here’s how that compares to neighboring states, which all use the UBE:
1) North Dakota: 59% and 65%
2) Minnesota: 83% and 88%
3) Iowa: 79% and 83%
4) Nebraska: 80% and 82%
5) Wyoming: 55% and 61%
6) Montana: 77% and 82%
https://www.ncbex.org/statistics-research/bar-exam-results-jurisdiction
A large portion of the differences between the state passage rates is also attributable to the class composition at each state’s law schools, which are going to make up the bulk of bar exam test takers in each state. Here are the very quick search results for “average LSAT score at [insert school name].”
USD: 150
University of Minnesota: 164
University of Iowa: 163
Drake: 155
Creigton: 153
University of Nebraska: 158
University of Wyoming: 148-153
University of Montana: 154
University of North Dakota: 150
It is not surprising, and in fact should be expected, that USD grads will pass the bar at a lower rate than graduates of the slightly more prestigious law schools in neighboring states. Similarly, bar exam test takers in South Dakota do better than those in Wyoming and North Dakota, which both have law schools accepting students with similar LSAT scores to USD.
The 1L class at University of Colorado—Boulder has a median LSAT of 164. The 25th percentile LSAT is 159 and the 75th percentile LSAT is 166.
This cite has a nice graph of first-time bar-exam passage rates for USD law grads. Notably, the downward trend to some rather abysmal years started in 2014 rather than in 2015 when the changes to the test were made.
https://www.lawschooltransparency.com/schools/southdakota/bar
The significant drop in bar passage rates from 2014 to 2017 was a national trend which also showed up in South Dakota. Our changes to the bar exam were not the primary cause of our declining bar passage rates. MBE scores across the nation declined significantly in those years, primarily because few people applied to law school and law schools therefore admitted less qualified applicants. This was mostly the result of the economic downturn of 2008-2009, which significantly impacted the legal profession as well. This caused fewer people to want to go to law school in 2010 and the following years, and those students started graduating in 2014. Back in 2009-2010, legal services organizations in South Dakota would get literally hundreds of applications for an open position. Now they perpetually have multiple open positions, and even deputy states attorney jobs are going unfilled.
https://www.abajournal.com/news/article/multistate_bar_exam_scores_drop_to_lowest_point_ever_are_low_end_lsat_score/
https://abovethelaw.com/2015/09/as-bar-exam-scores-continue-to-plummet-early-results-reveal-worst-performance-in-decades/
We can probably figure out an alternative pathway to legal licensure that does as good as the bar exam at ensuring competency. I do think we should be exploring it. Having the portability of a UBE score while still getting people to learn about Indian law would also be a good thing. But, I also tire of people blaming our bar exam for their failure to get licensed though. There are only a very, very small number of cases on the margins where our particular scoring system makes a difference versus the UBE.
Kyle: I have the raw scores from the Board of Bar Examiners. The true data that shows the pass/failure rate. Have you seen those scores? I have. It’s easy to state things incorrectly when you don’t have all the data.
M: 58% is contrary to any publicly available information. Are you claiming that only 58% of test takers passed the bar but they are publicly reporting a different percentage? That would actually be a scandal. My suspicion is that you are misinterpreting the data you have, especially since I saw the same 58% number used misleadingly yesterday.
Mr. H likes to call out paywalls mostly on his internet advertising competitors, or fellows like the young Messrs. Ellis and Sneve who are up and comers and I am told have a pod cast of recordings.
Mr. Krause is a fellow with some ADHD gone awry, I suspect.
Oh Kyle. You are finally catching on. Bingo! Finally.
M: I do not believe you. If you have evidence that actual bar passage rates are lower than what is being publicly reported, produce it. I’m sure Cory and innumerable other reporters would love to break that story.
It appears that jurisdiction-specific components are still permitted by the UBE. The easy solution would probably be to switch to the UBE with an additional required local component regarding Indian law. That appears to be what Montana does.
https://www.ncbex.org/exams/ube/ube-local-components
https://thebarexaminer.ncbex.org/article/september-2016/ube-jurisdiction-specific-components-seven-unique-approaches-2/
Did you struggle to pass the bar, Mr. Krause?
A Rule Change was put before the Supreme Court to return to the combing of the multiple choice and essay position of the bar exam and it was denied. We have a one of a kind bar exam. South Dakota is only state in the nation that calculates the bar scores/passage rates this way. Why are 41 states UBE states and not SD. I know every pass rate/failure rate since the bar change in 2015. In 2015 39% failed. It’s not the school, it’s not the students, it’s the calculation of the exam itself. All students pass the written, ethics portion. It’s the multiple choice. Which does not have one question on SD law, by the way. 200 questions…25 of the 200 questions are not graded. So you could have answered all or some of the 25 questions correctly but they are not included in your score calculation. And they don’t tell you how many of the 25 you answered were correct. Yes go back to the UBE.
A Rule Change was brought before the Supreme Court to return to the combing of the multiple choice and essay position of the bar exam and it was denied. We have a one of a kind bar exam. South Dakota is only state in the nation that calculates the bar scores/passage rates this way. Why are 41 states UBE states and not SD. I know every pass rate/failure rate since the bar change in 2015. In 2015 39% failed. It’s not the school, it’s not the students, it’s the calculation of the exam itself. All students pass the written, ethics portion. It’s the multiple choice. Which does not have one question on SD law, by the way. 200 questions…25 of the 200 questions are not graded. So you could have answered all or some of the 25 questions correctly but they are not included in your score calculation. And they don’t tell you how many of the 25 you answered were correct. Yes go back to the UBE.
Bar Exam July 2015
Correction 39% passed 61 failed. I stated it incorrectly above.
Bar Exam Passage for July of Each Year
2019
51 took the bar 33 passed – 64% passed
2020
57 took the bar 27 passed – 47% passed
2021
60 took the bar 33 passed – 33% passed
To me, the whole controversy goes back to South Dakotans being quite limited in their mastery of the English Language. If anything, the tests measure the prospective Lawyers ability to understand, use, and manipulate the English Language. They cannot demonstrate their abilities with Critical Thinking until they demonstrate a mastery of the English Language.
M: Are those numbers just USD grads, or are those total South Dakota bar exam test takers? Those numbers do not match what I am able to find publicly for total test takers.
2019: The July exam appears to have had 65 test takers, with 52 of those passing (80%).
https://thebarexaminer.ncbex.org/2019-statistics/persons-taking-and-passing-the-2019-bar-examination/
2020: The July exam appears to have had 61 test takers, with 43 of those passing (70%).
https://thebarexaminer.ncbex.org/2020-statistics/persons-taking-and-passing-the-2020-bar-examination/
2021: The July exam appears to have had 70 test takers with 53 of those passing (76%).
https://thebarexaminer.ncbex.org/2021-statistics/persons-taking-and-passing-the-2021-bar-examination/
Here’s the ten-year passage rates for the South Dakota bar from 2012 through 2021, both overall and for first-time test takers.
Overall 83% 87% 72% 56% 50% 58% 56% 75% 61% 71%
First-Time 86% 91% 75% 70% 55% 68% 78% 82% 70% 70%
https://thebarexaminer.ncbex.org/2021-statistics/ten-year-summary-of-bar-passage-rates-overall-and-first-time-2012-2021/
I am hesitant to accept any contrary numbers thrown out without a verifiable source.
https://www.abajournal.com/news/article/legal-ed-posts-public-notice-for-schools-out-of-compliance-with-bar-passage-standard
M: Nothing in that ABA Journal link supports your specific numbers. It is a 2020 article based on scores from 2017. The data I have found and linked shows USD grads failed to pass at a sufficient level for accreditation for three classes – 2015, 2016, and 2017. The provisional accreditation was due to those years.
The ABA allows them to calculate their passage rates so they can retain accreditation. I’m not going to argue with you because I am right and you are misinformed. That’s why the SD Supreme Court is studying this very topic. A Representative made the failure rate public before the state legislature.
M: Your numbers appear to be just made up. A legislator saying something definitely does not make it true. I’m far more inclined to believe the Chief Justice of the South Dakota Supreme Court and the dean of the law school.
The ABA’s standard is not that complicated. Of students who take the bar exam, 75% have to pass within two years. USD has met that standard since 2018.
Your numbers definitely do not need to be accurate for our Supreme Court to reevaluate the bar exam. There has been a national movement to do so for a while now, it makes sense to reevaluate from time to time, and the legislative push to change things brought the issue to the fore.
It should not be that hard to agree on objective fact. I have yet to see any evidence to suggest that your unsourced numbers are remotely accurate.
Since we sold naming rights to the Law School to please T. Denny Sanford we should just sell the place to him and let it be moved to Sioux Falls. Let the private sector deal with the bar exam problem. Money talks.
I’m having a really hard time finding any relevance to this response.
(1) There are certainly people arguing against the current SD bar exam as an appropriate “determination of competency.” Maybe distance disconnects the author from the conversation so much that he doesn’t realize this? Fulton at least identified enough taking this stance that he felt comfortable addressing it.
(2) the UBE also has a 200-question long-term multiple choice portion identical to South Dakota’s, yet the author holds out the UBE as an appropriate “determination of competence.” [While scored differently, the format of this portion of the exam is the same, and in that similarity is equally discriminatory.]
(3) it is apparent here that the author fails to understand the definition of “portability.” Fulton defined portability as the ability to obtain a license outside of SD with a JD from USD. A redesigned curriculum in favor of diploma privilege would necessarily be more SD-focused, disservicing out-of-state bar takers and portability. Fulton actually talked at length in his article about possible alternative paths to licensure in SD. This makes me wonder how in-depth the author actually read Fulton’s article to which he responds.
(4) only confirms the author’s misunderstanding of the definition of portability. A jurisdiction, by its very nature, is not portable, where a degree *can* be. This is illustrated by the fact the author was unable to obtain a license in South Dakota, yet the *portability* of his degree allowed him to obtain licensure in North Dakota.
This response to Fulton is weakly reasoned, self-contradicting, and ultimately fails to understand and respond to Fulton’s arguments. This article alone may be sufficient evidence that the exclusionary function of the SD bar examination’s “determination of competence” is working exactly as intended.