Requirement That Bar Pass Rates Be Disclosed Tentatively Upheld

Tuesday, August 20, 2013

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Requirement That Bar Pass Rates Be Disclosed Tentatively Upheld

By a MetNews Staff Writer

A federal district judge has tentatively upheld a regulation requiring that law schools disclose their pass rates on the bar examination, either by posting the figures on their websites or by linking to statistics published on the State Bar’s website.

U.S. District Judge James V. Selna of the Central District of California said in a written order Friday, he intends to dismiss a lawsuit brought by Southern California Institute of Law, which has campuses in Santa Barbara and Ventura. The school was created in 1986 and has been state-accredited since 1996.

The school argued the regulation violated its free-speech rights, saying the quality of a law school education should not be linked to the performance of its graduates on the bar exam.

But Selna’s ruling said that since the law school chose to obtain accreditation, it may also be subject to certain rules. The court held that the information is factual and uncontroversial and prospective students are free to draw their own conclusions about its relevance.

The judge said the rules govern commercial speech, which has more limited protection than noncommercial speech. He cited Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985) , upholding a state’s requirement that attorneys include in advertisements a disclosure that the client may be responsible for litigation costs.

“The Court holds that the challenged regulation is a required disclosure in the commercial context and that SCIL’s regulated commercial speech is not ‘inextricably intertwined’ with noncommercial speech,” he commented.

Nor, he wrote, was the Committee of Bar Examiners required to present evidence of actual deception in order to justify the regulation. He cited cases upholding consumer regulations based on the obvious possibility of deception. “California’s interest is clear: it gives CBE the authority to approve, regulate, and oversee degree-granting law schools, and set ‘standards for accreditation,’” Selna declared.