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INSIGHT: Bar Exam Repeaters Shouldn’t Be Pushed to Back of the Line

June 1, 2020, 8:01 AM

Thousands of aspiring lawyers recently learned that they failed the February bar exam. In New York alone, 2,000 failed. In most years, those law school graduates would pick themselves up, return to their books, and begin preparing for the July exam. This year, many won’t have that option.

Due to the Covid-19 pandemic, at least six states are limiting seats for their next bar exam and pushing repeaters to the back of the line: New York, Massachusetts, Connecticut, the District of Columbia, Louisiana, and Tennessee.

In other states, repeaters are being shut out by seemingly neutral “first come, first served” seating rules. Those states opened registration for the July bar exam before releasing results from February. As a result, thousands of repeat test-takers didn’t even know that they would need a seat until after most were already taken.

Restaurants are cutting seats to comply with social distancing rules, but the bar exam is not a restaurant. The bar exam is the primary—and in most states, only—gateway to a profession that serves the public. A profession dedicated to securing access to justice must not narrow its gates during a pandemic, especially when it licenses new lawyers only twice a year.

Other Options Exist

States that cannot safely test all candidates at a single exam site have other options. They can find additional test sites, as many states are doing; law deans have offered the use of their schools as test venues. They can offer additional test dates, as Kansas, Kentucky, Louisiana, Texas, and Washington have done. They can follow the lead of California, Nevada, Indiana, and Michigan by moving the exam online. Or they can license some graduates through supervised practice, as Utah has done, saving limited exam seats for candidates who do not qualify for that route.

Lawyers share a professional responsibility to maintain pathways to licensure. The preamble to our Model Rules of Professional Conduct recognizes that our “profession’s relative autonomy carries with it special responsibilities of self-government.” Limiting seats for the bar exam, when alternatives are available, abdicates that responsibility.

It is not uncommon for 40% to 50% of takers to fail the bar exam. Some of the nation’s most influential judges, lawyers, and leaders—Benjamin Cardozo, Franklin D. Roosevelt, and Michelle Obama—were repeat takers. Kathleen Sullivan, one of the nation’s top appellate advocates and former dean of Stanford Law School, failed the California bar exam on her first try. Dean Sullivan, like many other unsuccessful bar takers, failed the bar because she was working full-time during bar study and lacked time to prepare.

Testing Takes Time, Financial, Intellectual Commitments

People fail bar exams for many reasons. Some lack the money for expensive bar prep courses; others need to work full-time to support themselves and their families. Some must study while caring for children or sick relatives. And some do not study hard enough or effectively enough the first time.

The bar exam tests detailed rules in dozens of subjects, closed book, over two days. It is very different from single-subject law school exams and requires very different preparation strategies. Data also show that a significant number of repeat bar takers are graduates from historically underrepresented populations. The myriad reasons for this are beyond the scope of this commentary, but one thing is clear—limiting seats will exacerbate this disparity.

Whatever their personal situations, repeat takers have one characteristic in common: They are redoubling the time, financial, and intellectual commitments to join the legal profession. Putting repeaters in the position to have to wait to retake the exam exposes them to even greater economic hardship; they will have a harder time finding jobs and paying back student loans.

Every applicant who qualifies to take the bar exam deserves a seat, or the opportunity to be licensed in some other fashion, during the next licensing cycle. Repeaters who demonstrate the resilience, determination, and grit lawyers need, and who do the hard work of preparing to re-take the exam, are no exception.

Limiting seats for the bar exam should be a last resort—after states have fully explored additional venues, dates, online administration, supervised practice, and other alternative means of assessing minimum competence to practice law. All of us in the profession should assist courts and bar examiners to find ways to keep our licensing path open: We are all in this together.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Andrea A. Curcio is a professor of law at Georgia State University College of Law.

Marsha Griggs is an associate professor of law and director of academic support and bar passage at Washburn University School of Law.

Joan W. Howarth is the interim associate dean for experiential legal education and distinguished visiting professor at UNLV - William S. Boyd School of Law. She is also dean emerita at Michigan State University College of Law.

Deborah Jones Merritt is a distinguished university professor and the John Deaver Drinko/Baker & Hostetler Chair in Law at the Ohio State University Moritz College of Law.

All four authors are members of the Collaboratory on Legal Education and Licensing for Practice, a group of 11 scholars who have studied and written about the bar exam, licensing, and legal education for many years. Affiliations are listed for identification only; all authors contributed to this column as individual scholars and not as representatives of their respective institutions.

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