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Colorado Supreme Court reduces minimum passing score for bar exam

Friday, November 4, 2022

DENVER – The Colorado Supreme Court[1] announces today that starting in 2023, the minimum passing score on the Uniform Bar Examination (UBE) required for admission to practice law in Colorado shall be lowered from 276 to 270.  This change is prospective and shall become applicable to candidates for admission beginning with the February 2023 administration of the UBE as well as to candidates who seek to transfer their scores to Colorado from the February 2023 administration of the UBE in other jurisdictions.   

The Court arrives at this decision after consultation with the Law Committee of the Board of Law Examiners.  The Court expresses its gratitude to the Law Committee for its research and thoughtful input.

Colorado’s current cut score of 276 was first instituted in 1985, at a time when Colorado administered its own bar examination.  Colorado’s cut score has become an anomaly; it is currently the second-highest cut score in the nation among the 41 UBE jurisdictions.  Only Alaska uses a higher cut score (280), and only four other UBE jurisdictions use cut scores above 270 (Alaska (280), Arizona (273), Idaho (272) and Pennsylvania (272)). 

Colorado has administered various iterations of a bar examination over the years.  Starting in 1972, when Colorado adopted the Multistate Bar Exam—the multiple-choice component of what is now the UBE—Colorado used a cut score of 258.  That cut score remained in effect until 1985, when Colorado changed its exam structure and grading process to give additional weight to the written portion of the exam.  Following a psychometric analysis of the exam used at that time, Colorado raised the cut score from 258 to 276, where it has remained.  When Colorado joined the UBE Compact and began administering the UBE in February 2012, it retained the cut score of 276 on the premise that UBE scores would correspond to scores under the prior exam.

Colorado was among the pioneering jurisdictions to adopt the UBE.  Jurisdictions that joined the UBE compact at the same time or after Colorado most often adopted cut scores between 260 and 270.  A few adopted cut scores at the higher end, such as Idaho (starting in February 2012 with a cut score of 280), Alaska (starting in 2014 with a cut score of 280), Maine (starting in July 2017 with a cut score of 276), Oregon (starting in July 2017 with a cut score of 284), and Rhode Island (starting in February 2019 with a cut score of 276). 

Five states have since lowered their cut scores after initial adoption.  In 2016, Montana lowered its score from 270 to 266.  In 2017, Idaho lowered its score from 280 to 272.  In 2020, Maine lowered its score from 276 to 270.  In 2021, Rhode Island did the same.  Oregon lowered its score twice:  in 2018, it lowered the score from 284 to 274, and last year, following a psychometric study, it lowered the score a second time to 270.  The net result of these changes is that Colorado remains virtually alone in maintaining its unusually high cut score.

Although the 41 UBE jurisdictions have cut scores ranging from 260 to 280, the largest cluster of jurisdictions have settled at 270.  These sixteen jurisdictions[2] include our neighbor states of Nebraska, Utah, and Wyoming, as well as other western states such as Oregon, Texas, and Washington. 

Colorado’s current cut score does not necessarily take into consideration significant changes in the bar examination and grading processes under the UBE.  At the time Colorado adopted its current cut score, the written portion of the bar exam was significantly different and required test takers to demonstrate the ability to spot issues but not necessarily apply the law to a set of facts.  Since the adoption of the UBE in 2012, however, the written portion of the exam has been graded both for content (issue spotting) and substance (application of the law to a set of facts presented in the problem). 

Oregon’s recent psychometric study of the exam focused on the written portions of the UBE.  The essay portion of the exam requires candidates to demonstrate their ability to apply legal principles to hypothetical fact patterns; the Multistate Performance Test examines a candidate’s ability to work with a limited set of materials and produce a professional work product (typically a legal memorandum, brief, or motion, under time constraints).  The Court believes that these portions of the exam are particularly useful as a measure of a candidate’s ability to perform the tasks required of lawyers in entry-level positions or in opening their own law offices as solo practitioners. 

Although Colorado could engage in another psychometric analysis, such a process would be both time consuming and costly.  Instead, the Court finds the Oregon study persuasive. The Court therefore joins the sixteen other UBE jurisdictions that have adopted a cut score of 270.  The Court adopts this change prospectively, beginning with the February 2023 administration of the UBE.

At the same time as announcing this prospective change to the cut score, the Court recognizes that significant changes to the bar exam are coming in a few years.  The National Conference of Bar Examiners (NCBE) is developing a new exam, known as “NextGen,” that will be in a different format and test fewer subjects, but with more focus on lawyering skills.  As with the UBE, each jurisdiction will decide whether to join the compact that allows applicants to transfer their exam scores to other jurisdictions, and each jurisdiction will determine what is the passing score to be admitted to the bar of that jurisdiction.  The Court plans to invite public input on the broader question of how to determine minimum competency of candidates for admission to the Colorado bar.  The Court will announce details regarding that opportunity for public input once the NCBE has further defined the timing and content of the proposed NextGen exam.  In the meantime, stakeholders may wish to monitor NCBE’s NextGen website:  https://nextgenbarexam.ncbex.org/.

 

[1] Justice Berkenkotter recused herself from any participation in discussions or the Court’s decision announced today.

[2]These jurisdictions are Arkansas, Maine, Massachusetts, Nebraska, New Hampshire, North Carolina, Ohio, Oregon, Rhode Island, Tennessee, Texas, Utah, Vermont, Washington, West Virginia, and Wyoming.

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