South Carolina's bar exam controversy is not going away

The South Carolina Supreme Court has finally spoken. But that state's bar exam controversy is still with us.

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:

South Carolina Supreme Court statement

On October 31, 2007, the examiner of the WTE section reported to the Clerk's Office that he had made a scoring error in his report of the examinees' scores. This was not a "re-grade,” but merely an error in transcription that was discovered as the examiner prepared to transmit the examination books to the Court. The error was that an examinee who had previously been reported as having passed the WTE section, had in fact failed the section. The Clerk of Court then reviewed the examinee's other essay section scores and discovered that the examinee's WTE failure, coupled with the examinee's failure on one other essay section resulted in the examinee not receiving an overall passing score. The examiner's initial report of a passing score was a scrivener's mistake. The scoring error and its consequence was reported to the full Court at its conference on November 1, 2007, at which time the Court was faced with determining what action, if any, to take with regard to the error.

After deliberation, the decision was made to eliminate the entire WTE section from consideration. In making this decision the Court determined that it would be inappropriate to reverse the affected examinee's[2] previous notification of successful completion of the examination. See Rule 402(i)(5) ("The results reported by the Board of Law Examiners is final…”). This decision then raised the question of fair and equitable treatment for those examinees, who, like the examinee affected by the reporting error, had failed the WTE section and only one other section, thus resulting in an overall failing score. It was against this backdrop that the Court made the decision to eliminate the WTE section from consideration so as to provide equal treatment to those in exactly the same position as the affected examinee. The Clerk advised the Court that this action would result in an additional twenty examinees receiving overall passing scores on the examination.

No consideration was given to the identity of any examinee who would stand to benefit from this action. Moreover, the action was not influenced by any appeal, campaign, or public or private outcry. It was simply deemed the best choice among several problematic alternatives.

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:

1. 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.


2. 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.


3. 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.


4. Of course, this decision instantly creates two potential vectors of unfairness:
   
   
   1. 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.
   
   
   2. 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.
   
   
5. 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.


6. 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.

I endorse Not Very Bright's conclusion: "I’m still hoping for that restoration of confidence in the process, but at the moment I can’t make sense of any of this."

Update, 11/20/07, 11:30 p.m.

The South Carolina Bar has evidently accepted the Supreme Court's explanation. But the court's statement, in addition to the logical and legal flaws identified by The State and Not Very Bright, is well-nigh impossible to square with comments by House Judiciary Committee chairman Jim Harrison, made just before the swearing-in ceremony for South Carolina's newest lawyers, that his daughter Catherine's "hard work" in lobbying the high court enabled Catherine Harrison and 19 other candidates to be admitted to the bar.

A month ago I had the privilege of witnessing many members in my first class of graduates take their oaths as the newest members of the Kentucky bar. It was a special occasion, at once solemn and festive. I wish that South Carolina's lawyers could say the same of last week's ceremony in Columbia.