Law Schools

Law School Deans Rail Against Grave Injustice Of... Waiting A Few Months To Take The Bar Exam

The plan for staggering the administration of the New York bar exam isn't a great one... but not for any of these reasons.

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After the New York Board of Law Examiners indicated that, because of seating constraints, it would be offering priority seating at the upcoming Fall administration of the New York bar exam to graduates of New York law schools, we started hearing deans from out-of-state schools cry foul. A total of 21 deans have now signed onto a letter addressed to New York Court of Appeals Chief Judge Janet DiFiore lodging their objections to the plan. Earlier today, Above the Law also published Dean Vik Amar’s monthly column outlining his problems with the New York response to the crisis. And there is a conversation that needs to be had about whether or not New York has adopted the best approach to serve both the public and bar applicants.

But with all the rhetoric flying around, let’s make a few things clear off the top so we don’t lose anybody:

1.) There is nothing in this proposal suggesting that out-of-state applicants cannot or will not be admitted to the bar;
2.) No, this isn’t “protectionist”;
3.) It’s definitely not something we should be calling “discriminatory” with a straight face; and
4.) Yes, New York should ultimately junk this plan.

To be abundantly clear, two things can very much be true. First, New York’s decision to prioritize seating for graduates of New York law schools for the upcoming Fall administration of the exam can be an entirely prudent and responsible course of action, and second, it can be entirely silly to insist on having an in-person bar exam at all at this point. We’ve been pretty upfront around here with our support for a diploma privilege plus program — at least temporarily, if not permanently — and, failing that, encouraging any sub-optimal solution that recognizes the folly of forging ahead with an in-person bar exam. Given the scheduling changes states have had to endure and the likelihood that applicants will need to be even further distanced when an exam really does happen, putting even further strains on the process, this is the conclusion everyone should have reached by now.

Accepting that these are independent points, the problem with legal academics tossing around terms like “protectionist” and “discriminatory” is that it not only fails to provide a useful solution, it’s downright counterproductive and smacks of a haughty presumption that’s unbecoming of these schools.

But, I guess if you’re constitutional hammers, everything starts to look like a precedential nail.

Over the weekend, former Northwestern dean Dan Rodriguez called this plan “protectionist” and Dean Amar’s column calls it “favoritism,” which strikes at the same thing. The problem is, this is not protectionist. New York is not banning out-of-state applicants. New York is not putting a quota on out-of-state applicants. New York is not instituting a different cut score for out-of-state applicants. The state said that, in a world where we still take an in-person bar exam, the in-state examinees will take the test first with out-of-state applicants to follow. No one will be denied access to a license and no benefit is inuring to New York-licensed attorneys at the expense of future examinees.

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After all, we have no problem with Wisconsin, which recognizes one rule — diploma privilege — for its law schools that isn’t accessible to those outside the state. That’s far more “protectionist” than anything proposed by BOLE since it actually sets up completely distinct paths to securing a license for in-state and out-of-state examinees.

Dean Amar’s column points out that it’s unconstitutional for a state to reserve bar membership to citizens of the state, which is probably why that’s explicitly not what New York is suggesting. It’s a fundamental right to be allowed access to a law license and stripping someone of that would invite strict scrutiny. Is that right fundamentally impaired by having some students take the exam in September and others in February? That’s a significant leap getting glossed over.

The deans’ letter notes:

Still, as you can imagine, the news of your approach has fallen hard on the many students who had planned to sit for the bar in New York this summer or fall, a number of whom have already physically returned or relocated to New York during this pandemic.

But the New York bar exam already requires many students who have relocated to their upcoming jobs in Manhattan to travel to Albany to take the exam and, let’s be honest, traveling to Albany is traumatic in the best of times.

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The point is, if the alternative is taking the UBE in New Jersey or heading to Albany, the out-of-state examinee is now better off on this score. Assuming, of course, that other states are going to allow applicants to crowd their testing halls to take an exam with no intention of securing a license in that state, which they probably won’t. That’s another knock on BOLE’s plan, but a knock wholly apart from suggesting that it’s unfair to make out-of-state applicants travel for the exam. [UPDATE: Oh, and it just strikes me that staggering the administration in this way increases the odds that an out-of-state student may be able to take it in Manhattan when the time comes which is another benefit.]

But as bad as “protectionist” rhetoric is, co-opting the language of racial and gender injustice to complain about bar exam seating is really uncalled for. Obviously treating in-state and out-of-state applicants differently for administration dates is technically “discrimination” but when that rhetoric is tossed around in letters like these it’s intended to evoke struggles that really don’t belong in this conversation.

From the deans’ letter:

And we worry that the resulting delay in the exam’s administration and admission to practice will fall hardest on the most economically vulnerable of our graduates and on those whose continued presence in the United States will be compromised by the delay…

This is a vitally important consideration but one that seems misplaced. If a Biglaw firm has hired a graduate on a visa to perform legal work, that job isn’t going away because the attorney-to-be didn’t get to take the bar exam on the first post-pandemic administration.

Perhaps unintentionally, the concern over the economically vulnerable gets to the heart of BOLE’s rationale for prioritizing the graduates of New York schools. Dean Amar writes:

What about the possibility that New York-based law school graduates are less likely (than graduates of out-of state schools) to take their UBE score and leave the state to practice elsewhere?

This is getting to the issue, but not quite there. The Stanford grad taking the New York bar is far more likely to be joining a global Biglaw firm that will allow the graduate to be employed and receive benefits while working as a supervised law clerk. The population of graduates who depend on passing the New York bar as a lifeline to earn their livelihood as future solo practitioners or at tiny shops that can’t carry an employee without a license are more likely products of local New York schools. Someone may be graduating from Duke with a plan to work slip and falls in Utica, but probably not. The graduates most likely to be economically at risk based on a modest delay are the graduates of New York-based schools. Add in that these attorneys are more likely to be serving economically underprivileged sectors than, say, Exxon and Goldman Sachs, and the value of speeding in-state examinees in a staggered schedule is a lot more compelling.

So that’s the purpose of the New York plan. It isn’t cutting off bar admission to anyone; it’s a reasonable effort to stagger the schedule in a way that minimizes pain. That it’s not perfect is probably a good reason to abandon an in-person exam, but if we’re stuck here then we’re stuck here.

In their letter, the deans make four suggestions for BOLE of varying degrees of plausibility.

• Offering a second date for New York’s administration of the UBE in the September 30-October 1 sitting that will be offered by the National Conference of Bar Examiners;

Would that they could. Unfortunately, the NCBE has shown no interest in allowing a second administration of the test as part of the entity’s overarching worry that someone might get a slim unfair advantage. We expect to hear more about NCBE’s plans for September with a promised update tomorrow, but barring some loosening out of the NCBE, New York’s hands are tied.

• Increasing seating for New York’s September 9-10 administration of the UBE by adding new locations within New York State;

• Creating seats for New York’s administration of the UBE outside of New York State, including, potentially, using some of our schools as possible venues;

Adding more seats! Wow, why didn’t New York think of that? Some 10,000 people take the July administration of the New York bar every year and almost half of them take it in the Javits Center, Manhattan’s sprawling convention center. All of these venues, but especially the Javits Center, are locations booked far in advance and boast a near constant stream of hosting obligations. It’s highly unlikely that the state can secure all of these seats on a dime for a September administration (nor would they necessarily be wise to do so as it’s equally unlikely those venues would permit a second wave of COVID triggering an impossibility clause which could leave the state on the hook for a massive bill if it relied on these commercial venues) and assuming some manner of social distancing will still be either required (or at least preferred by neurotic law grads), BOLE is potentially staring at a more extreme real estate need.

And while some out-of-state schools have offered up their campuses to help out, this only creates a new problem. As the deans themselves just explained above, students have already relocated to New York so forcing them to return to the West Coast to take a test does little to address that problem. It also privileges students at the out-of-state schools capable of servicing their graduates while applicants in New York proper are likely still going to be turned away in September for lack of space even with these provisions. The whole thing reeks of the privilege that graduates of top schools that have secured Biglaw jobs should obviously not be inconvenienced by a global catastrophe. If it makes the deans feel any better to know that the U.S. News rankings won’t ding them on bar passage within nine months over this, we could try to make that happen.

• Working to develop an on-line bar exam, either in conjunction with the NCBE or as a freestanding New York exam.

Yes. This.

This is the only viable proposal in this letter and it’s one that New York should not only consider but one that the state should use its considerable clout to pressure the NCBE to accommodate. The NCBE already balked at an online exam and prompted Massachusetts to start writing its own exam. Add New York to that list and the folks in Madison probably couldn’t stand up to the mounting pressure.

Bar applicants shouldn’t have to sit for an in-person exam this year. Period.

Despite this September plan, there’s still no certainty on timing. There’s no obvious path for prep courses to move forward. There’s a seating demand that is frankly untenable. And it just sucks to ask graduates to take time out of their new jobs to go back and cram for and take a test. The fairest solution is one that requires everyone to take it online at once or no one have to take an exam portion at all. At the point you find yourself dancing around with how New York should better allocate limited seats for an in-person exam, you’ve completely lost the plot.

But here’s the thing that my weekend interactions with legal academics showed me — they just don’t get how silly these arguments sound under the circumstances and, consequently, how badly their strategy undermines the effort to get some useful reform.

(Check out the deans’ letter on the next page.)

Earlier: Law School Student Governments Petitioning For Diploma-Privileged Admission
NY Bar Exam To Be Limited To NY Law Schools, Other Law Schools… Displeased
NY Bar Exam Encounters New Hurdle — Not Enough Space To Test Everyone
The New York Bar’s Misguided Discrimination Against Out-Of-State Law Schools

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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