The problem is not Texas's bar examiners, he is quick to say. "We have great bar examiners in Texas, but what is the system around them doing? Not only to the examiners but to examinees."
Sheppard is not alone. He and the other nine law-school deans in Texas urged the Court to appoint the 11-member task force: five deans, three Texas Board of Law Examiners members, two attorneys and Chief Justice Jeff Rose of the Austin Court of Appeals. In the order establishing the Task Force on the Texas Bar Examination, the Court focused on seven questions for the task force, including whether Texas should adopt the Uniform Bar Examination, a test that allows scores to be accepted by states that have adopted it, and whether Texas should continue to use the multistate bar examination and, if so, under what circumstances.
"These are really important questions," Sheppard says, "that might not have been brought into focus but for what is a really unusual string of results that seem to be tied to this national testing instrument."
The Court appointed Sheppard chair of the task force. In addition to Sheppard and Rose, the other members are Texas law-school deans Darby Dickerson (Texas Tech), Ward Farnsworth (University of Texas), Dannye K. Holley (Texas Southern) and Bradley J.B. Toben (Baylor); Board of Law Examiners members Harold "Al" Odom, Augustin "Augie" Rivera Jr. and C. Alfred Mackenzie; and attorneys Beverly B. Godbey and Rebekah Steely Brooker, both Dallas practitioners.
Their first report is due May 31, 2017. The Court's liaison to the task force is Justice Don R. Willett.
"The forces buffeting modern legal education and practice have spurred states across America to reevaluate bar-examination methods and admission practices, and to explore alternatives," Willett said. "The Court has charged the task force with critically examining Texas's current bar-admissions landscape and recommending smart 'better bar' reforms that ensure lawyer competency and protect clients, while adapting to the dynamic 21st-century legal economy."
The task force has not met since it was created June 24, but Sheppard envisions it will survey Texas lawyers and dive into existing research about lawyer-licensing methods and their efficacies. Such research offers a scientific perspective on the national multistate bar examination – the exam Texas employs -- that he said the testing administrator will not provide.
The National Conference of Bar Examiners, the company that creates and administers the multistate test as well as the Uniform Bar Examination, does not disclose the background support to prove its tests' confidence. And, Sheppard notes, its tests do not assess knowledge and skills in Texas law.
The Texas law-school deans who asked the Supreme Court to review bar-exam procedures, methods and grading represent growing criticism among law professors as bar-exam results dropped two or more years ago across the board. For licensing applicants who "sat for the bar" in its two annual test dates from 2013 to 2016, passage rates in Texas fell almost 12 percent. Scores declined for all graduates from Texas law schools in those years, dramatically among Baylor graduates – 16 percent on the July exam, almost 13 percent for the February test – and South Texas College of Law – 18 percent for July, 19 percent in February.
Baylor graduates, who traditionally pass the bar exam at rates among the highest for Texas law schools, dropped from a 97.5 percent passing rate on the July 2013 exam to just under 82 percent for the July 2015 exam. For the February 2014 test, 89 percent of Baylor graduates passed but two years later the rate was 77 percent.
Anomalies exist, to be sure. Of those taking the February 2016 exam, St. Mary's graduates improved passage rates by almost 7 percent compared with the February 2014 test, Southern Methodist University by 3 percent and the University of Texas by 18 percent. But bar passage rates from each of those schools fell on the July 2015 exam compared with July 2013: St. Mary's by 20 percent, SMU by more than 6 percent and UT by almost 5 percent.
"The failure rate has been rising and rising and rising, but we don't believe the skills of our students are lowering," Sheppard says. "Indeed, there's a lot of evidence that the skills of our students have been getting better during this period and yet their performance on the bar is getting worse."
For the task force's mission, he says, "we need to do the best job we can to make sure every person who practices law in Texas has proven that they know the Texas law and can use it .... And if there are better ways to test, we should pursue that. And with the help of the board and the board members on the task force, we're going to pursue that. That is what I think Texas deserves."