In a statement issued on Monday, November 19, 2007, the Supreme Court provided further details of its November 2 decision to nullify all negative scores on the wills, trusts, and estates (WTE) portion of South Carolina's July 2007 bar exam:Neither The State (South Carolina's leading newspaper) nor Not Very Bright (an astute blogger) is buying the court's explanation. They shouldn't. Each of these observers has identified some serious holes in the court's explanation.
According to The State's account, the Supreme Court's November 20 statement came as a surprise to the chairman of South Carolina's bar examiners: "Board chairman George Hearn told The State last week that no one from the high court nor any of his examiners reported the scoring error to him after the scores were released initially." Moreover, as The State has steadfastly reported, the court's decision to reverse the final grades represents an "apparent violat[ion] [of] its own March order, in which it established a rule that said, 'The results reported by the Board of Law Examiners are final and no applicant shall be allowed to seek re-grading or any other review of the results of the examination."
Not Very Bright's reaction, contrary to that blog's name, is even more illuminating:
I’d be interested in someone smarter than myself making sense of why you would pass twenty persons who you knew didn’t meet the qualifications to be a lawyer in order to fix a “transcription error” for one person. And why if your goal is to allow that one erroneously-passed person to remain “passed,” you simply wouldn’t leave it be rather than throwing out a section? And how does this square with the Facebook page and the Harrison and Burch interviews admitting contact with the Court and/or examiner?Why indeed. These steps, which seem eminently logical, appear to have lain far, far beyond the consideration of South Carolina's highest court:
- Petitioner X in fact flunked the bar exam. Due to a "scrivener's error," Petitioner X was wrongfully told that she or he had passed.
- It seems within the power of the court and of the bar examiners to inform Petitioner X that she or he would not be administered the oath of office as a new lawyer, since in fact she or he had flunked the bar exam.
- Insofar as the court wished to privilege the erroneous reporting of Petitioner X's exam results over her or his actual performance, the logical (and obvious) remedy would have been a decision to qualify Petitioner X as a new member of the bar.
- Of course, this decision instantly creates two potential vectors of unfairness:
- Allowing Petitioner X alone to pass disadvantages every other person who similarly flunked the bar exam as a whole on the basis of the wills, trusts, and estates question.
- Admitting every person who flunked the bar exam because of the wills, trusts, and estates question ─ including Petitioner X ─ cheapens the achievement of every person who passed the bar by performance rather than court order. It also creates unfairness, as palpable as it is perceived, vis-à-vis those who flunked the bar on the basis of questions besides the wills, trusts, and estates question that the Supreme Court elected to nullify.
- A decision to admit 20 people to the bar ─ none of whom, even by the Supreme Court's account, actually passed the exam ─ exposes the high court to speculation about ex parte manipulation of the process, improper political influence, and the deeper meaning of Facebook entries. South Carolina and its bar deserve better.
- Because the integrity of the bar exam process is paramount, the only defensible decision before the court was either to admit Petitioner X alone, on the basis of a scrivener's error in her or his favor, or to stand on the basis of Petitioner X's actual bar exam performance and to deny her or him admission to the bar.
Labels: South Carolina bar exam scandal