Bar Exams, Constitutional Law, Free Speech, Texas

Texan Claims Bar Exam Is Unconstitutional — Which Kind Of Proves Why We Need Bar Exams

There are legitimate arguments that bar exams have a deleterious effect on the delivery of legal services. The presence of bar exams certainly artificially limits the supply of licensed attorneys, which is partially responsible for the lack of attorneys servicing low-income and impoverished clients. Certainly, the bar exam creates barriers to entry, which raises the cost of lawyer services. And, in conjunction with the ABA’s restrictive requirements, the fact that bar exam eligibility in many states is tied to ABA accreditation is one factor that allow law schools to charge exorbitant costs.

I’m generally a fan of bar exams, but there are reasonable arguments against them. But this guy who seems to be preparing to fail his second bar exam is not making one. He’s saying the bar exam in an unconstitutional restriction on his free speech.

I might have been more sympathetic if he called the bar an unconstitutional infliction of cruel and unusual punishment…

The complaint is up on Texas Lawyer (sub. req.), and it’s a stunning example of why we need bar exams:

Among other things, Jamar Osborne alleges the bar exam violates his free-speech rights because it requires test-takers to give legal opinions, and the Texas Board of Law Examiners (TBLE) determines if they’re “valid.”

“Anyone who disagrees with the Board of Law Examiner’s interpretation of the law is denied a license to practice law and ultimately denied the right to work,” alleges the June 24 complaint Citizens Against The Bar v. State of Texas, et al. “Most bar applicants wouldn’t dare disagree with the Board of Law Examiner’s legal opinions out of fear for their livelihood.” …

Osborne says he thinks the bar exam is not necessary, too expensive, “infringes on fundamental rights” and not “narrowly tailored.”

“In my fairy-tale land, I’d like to get the license and the bar exam overturned and held unconstitutional,” he says, adding, “At the very least, I hope this lawsuit will bring awareness to an important issue people aren’t focusing on, and maybe at least there can be some changes to the licensing requirement, to at least make it narrowly tailored and consider some alternatives, like maybe an apprenticeship.”

Issue spotters unite!

  • The right to remain silent only applies to a custodial stop. I think test-takers are free to leave the bar exam at any time.
  • Providing crappy legal services to unsuspecting clients is not a fundamental right.
  • Free-speech doesn’t require people to agree with you.
  • Bar exam seems “narrowly tailored” to prevent people who don’t understand the law from practicing law.
  • Court has no jurisdiction over “fairy-tale land.”
  • “Maybe at least” remedies are unavailable.

Oh that was fun. Come on, everybody play.

Meanwhile, Osborne also has race-related concerns:

He alleges that Travis County violated Title VII of the Civil Rights Act in posting attorney positions requiring a law license, which requires bar passage.

Osborne, who is an African-American, also alleges the exam has “a disparate impact on African-Americans.”

“Unless Defendant Travis County can show that the skills tested on the Texas Bar Exam are job related and that there are no less discriminatory alternatives, its license requirement for Attorney positions must be invalidated under Title VII,” alleges the complaint.

Osborne should really get a lawyer who has passed the bar exam to help him with his disparate impact claims.

You know me, I think just about everybody should be allowed to take the bar exam, but it should be harder so that passage denotes a real understanding of the practice of law, not just the mastery of a six-week prep course. The exam is never going to change through lawsuits from people who fail. It’s going to take practitioners and educators taking a harder look at what kind of licensing requirements are appropriate for lawyers of the future.

And professional licensing requirements are not unconstitutional.

Law Grad Alleges Bar Exam Is Unconstitutional [Texas Lawyer (sub. req.)]

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