2020’s Bar Exam Lesson: You’d Better Get A Working Knowledge Of First Amendment Doctrine.
Yesterday, New York announced that it cancelled its September 9-10 bar exam with no indication on future plans to hold it. I had predicted as much for northeastern states, which is why I am going west to take mine. Nonetheless, last night, I got the predictable rush of texts and social media messages from people who wanted my opinion again on whether Connecticut will hold a bar exam during 2020.
I don’t have good news for those people. Connecticut can’t even operate its court system according to constitutional requirements, let alone administer a bar exam safely during a pandemic. The Connecticut powers that be are also procrastinators who, according to my sources, have not taken any steps toward putting the infrastructure in place to deliver an online exam.
New York applicants were predictably outraged when the New York Bar Examining Committee canceled the exam long after the withdrawal deadline. Welcome to the real world where you are required to know about the implied covenant of good faith and fair dealing to pass an exam, but the powers administering the exam are clueless about it. Connecticut will be no different. Procrastination will rule the day, and you will never see your application fees back.
When people solicit your opinion during a crisis, they are seeking some sort of hope – either a reassurance that you too see light at the end of the tunnel or you alone hold out hope that there’s a way out of the labyrinth. I have no hope to offer those who seek my opinion on the Connecticut bar exam. I am a realist, and I don’t trust anyone, especially people who have not demonstrated any measure of competence.
So I propounded a question to the folks who sought my opinion: “What are you going to do? Lay down? Give up? Fight?” My questions were often met by long pauses and an extreme reluctance to answer. The answers were unanimous. “I am going to wait and see.”
You’ll be waiting and seeing a long time, folks.
I asked a few of my friends who reached out if they would consider suing over the bar exam. Admittedly, a lawsuit is a serious undertaking, and it would be a long shot on a variety of creative legal theories that apparently only I carry around in my head right now. If I had screamed “I am COVID-infected” at the top of my lungs, I could not have generated more distaste for a proposition. Everyone I broached the subject with is worried about public advocacy or a lawsuit affecting their Character and Fitness assessments to be admitted to the bar.
Let’s get one thing straight. The First Amendment and most state constitutions give you the right to petition your government for the redress of your grievances. The United States Supreme Court has repeatedly held that the right to petition government for the redress of your grievances includes the right to access the courts. See Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 741 (1983) (“the right of access to the courts is an aspect of the First Amendment right to petition the Government for redress of grievances”).
If the state bar examining committees have a problem with you accessing the courts to state your grievances against them and want to create problems for you during your admission to the bar, the retaliation claim practically writes itself. If the state bar examining committees want to create problems for you for publicly advocating against their procedures, they are retaliating against you for engaging in protected political speech.
You may never deal with constitutional issues in your area of practice for your entire career, but there is one aspect of constitutional law that you had better learn and fast. That is that you have the right to access the courts and speak freely without being retaliated against. The law is clear and well-established.
Stop being afraid to speak out and boldly assert your constitutional rights. The state bar examining committees have a vested interest in discouraging you from speaking and opposing their decisions. You are the ones in the best position to do so. When they come after you, there’s plenty of wise guys like me out there who would love to get a piece of state bar examining committees in the courtroom.
I am going back to studying for the bar. You know how to find me if you find your courage….