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When Will Black Lives Matter to the Florida Board of Bar Examiners?
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When Will Black Lives Matter to the Florida Board of Bar Examiners?

I am a native Tampanian, and in 1992 I graduated from Vanderbilt University Law school. Because I spent my last year of law school studying abroad, a novel idea back then, the law school registrar would not certify my graduation for me to sit for the July bar exam in 1992. This was the first stall in my legal career. Months passed, and my finances dwindled. Job after job passed over me, and eventually, I applied for food stamps.

By the time a law firm picked me up and I registered for the February 1993 bar exam I was working full time trying to get back on track financially. But, working full time and battling student loan collection calls did not help my psyche, and I failed the Florida Bar exam on my first attempt. The law firm was forgiving and let me stay on with the promise that I would face termination if I failed again. They gave me some time off; I passed part A, but unfortunately, I failed part B by a few points in the summer of 1993, and they kept their promise.

Unemployed and dejected, I was summoned to a character and fitness hearing where they asked me for a concrete plan to get my debt under control, specifically my student loans. My mother held my hand during the hearing; I did not have a lawyer. I had borrowed the money just to pay for the hearing. So, I had no answer for the Board of Bar Examiners, and I left the hearing, thinking that perhaps being a lawyer was just not for me. I had no plan. I stalled. I became a failure to launch.

I decided to reinvent myself. I went back to school. I earned a master’s degree and a Ph.D. Then, while working full time as a professor, my family members encouraged me to sit for the Florida Bar again. I failed. I failed again. I regrouped. I went on to earn another master’s degree in Cybersecurity. I added this new degree to my now 20-year career in higher education as a tenured professor.

I know this sounds like I am just talking about me, but this is not a unique story. I am no different from numerous academically talented African Americans who have taken the bar exam and failed. Law School Admissions Council researchers have reported that nationwide, “While eight percent of white students failed the bar on the first try, nearly forty percent of Black students missed the mark.” In 1989 Rahim Reed, who was the assistant dean for minority students at the UF law school, said, “If you have two students, one black and one white, and they both do well in law school, but one of them can’t pass the Bar exam or has to take it repeatedly…well, there’s a problem.”

Additionally, abandoning the law after bar exam defeat is not unusual for African Americans. In an article published in the Orlando Sentinel in 1989, one African American bar exam repeater is quoted as having said, “If you are black, the odds are you are going to fail the Bar exam at least once, maybe twice. Something’s wrong, but nobody wants to talk about it openly,” Requesting to remain anonymous because of the stigma associated with failing the exam this repeater also said, “No one wants to admit they can’t pass the Bar exam. There’s too much humiliation.” Black law students are embarrassed and humiliated about this reality because they are conditioned to think that this failure is about them. This is because too often, the discussion of why Black law students have more difficulty passing the bar exam centers on questions about their educational preparation or intellectual ability. However, as Nareissa Smith, Esq., writes, “Black law students are not lazy or incapable of learning the subjects necessary to pass the bar exam.” Rather, Black students are more often burdened by higher student loan debt, primary caregiver responsibilities, more of a need to work while they study for the exam, and other unique socio-cultural challenges that are significantly less pervasive among white students. Even though Professor Cecil J. Hunt, notes that “Disparate performance also generates concern that the bar examination, the gateway to the legal profession, may be infected with racial, ethnic, cultural, gender, and/or economic bias unrelated to the competent practice of law,” few states are concerned enough to address the reality that the bar exam is discriminatory and creating extremely significant consequences for this population of students.

Historically, the bar exam began as a method to control the number of lawyers in the legal profession. However, this concept of control translated into covert racism and sexism, as members of the Jewish community, people of color, and women sought entry into the profession. Yet, the Florida Bar has a history of establishing committee after committee to study how to augment diversity and inclusion in the profession, they profess to be concerned about creating a path to unity, but they ignore what they already know is the truth. Research shows that the bar exam does not actually gauge who will be competent lawyers or certify the existence of any real lawyering skills. Unfortunately, despite this fact, the exam is still allowed to exist as an obvious barrier to real diversity and inclusion in the legal profession. As Stephanie Francis Ward acknowledges, the bar exam is “an excellent barrier to entry, and [a] superb hazing ritual.”

Again, in 2019 family and friends needed me to help them with legal matters, and they encouraged me to take the South Carolina Bar exam. So, I stepped back into the Bar Exam arena to be hazed again. Last year I passed the South Carolina bar exam, and my scores were high enough that I can opt-out of taking the bar exam in several states. But, not in Florida. In Florida, I am still required to take Part A of the Florida Bar Exam to earn the right to practice law in the sunshine state. I went ahead and registered for the February 2020 Florida Bar exam. Then COVID-19 arrived. I decided to postpone because I could see the looming fear. I put my family first. I focused on ordering masks and sanitizer. I attempted to quell my anxiety. The world stopped being normal, and then it shut down.

I was proudly sworn in as a member of the South Carolina Bar, via Zoom, in April 2020.

Now I hold a ticket to the July 2020 Bar exam in Florida, a location that has recently been named the new epicenter of the Coronavirus pandemic! I am starting to think there is some karmic force attempting to block my successful admission to the Florida Bar. I have paid more than anyone’s share of dues when it comes to the Florida Bar Exam. Despite what people may believe my numerous failed attempts indicate, I am not academically or intellectually deficient; in fact, many people consider me a scholar. Yet, I have sacrificed friends, family, and finances, time, and time again in pursuit of this holy grail.

The Florida Bar Exam and The Florida Board of Bar Examiners have become my arch-nemesis, and this year just as I believed that I was about to become a true hero and defeat this villain in my life, COVID-19 happened. Once again, I have spent hours studying after work, I have spent thousands of dollars on bar preparation materials, I have yet again neglected friends and family in my quest to pass the Florida Bar Exam before my multistate bar exam scores are stale and don’t count. I have invested, and I must take this exam in July.

Like everyone, I had believed that 100 plus days of nationwide quarantine would flatten the curve and kill the virus and that by July, we would all be safe and sound. But instead of safety, I am now faced with being required to travel out of state during a pandemic, endure 14 days of self-quarantine to get to Florida, two days in the convention center for at least 16 hours with 1000 other people, and then 14 days self-quarantine to return home after the exam.

During my upcoming 16-hour adventure in Florida Bar exam testing, I am statistically assured to be exposed to people who are asymptomatic and pre-symptomatic carriers of the virus. Furthermore, the CDC has indicated that the longer your interaction with infected people, the higher the risk is that you will contract the virus. So in a room with 1000 people, I will be exposed to the infection. I am grappling with this fact combined with CDC reports that African Americans are at an “increased risk of getting COVID-19 or experiencing severe illness, regardless of age.” Moreover, the CDC reports that “history shows that severe illness and death rates tend to be higher for racial and ethnic minority populations during public health emergencies than for other populations.”

So, ultimately, as an African American woman in her 50’s who is even more susceptible to the virus because of my prior bout with H1N1 or Swine flu, I am being required to risk my life by taking a test that does not even gauge if I will be a good lawyer just to gain entry into the legal profession in Florida. Moreover, I am being required to risk the lives of my children, the elderly members of my family, and the African American community I live in and serve. Two states Washington and Utah, have already responded to the pandemic and certified all applicants with diploma privilege, a system that allows them to obtain a license without taking the bar exam. University of Washington Law Dean Barnes said, “I was especially concerned that our most vulnerable graduates, [including] those who are immunocompromised, persons in financial distress, and students from historically underrepresented backgrounds, would be disproportionately negatively impacted if no diploma privilege were granted.”

Over the years, while on this quest, I have given a pound of flesh and now, by refusing to directly certify July applicants who graduated from an ABA-approved law school, like other states have done, the Florida Board of Bar Examiners is asking for my soul.

When people chant “Black Lives Matter,” I believe this is the type of disparate situation they are attempting to address. Not only are we subjected to heightened police scrutiny, but we are also continually asked to pay a higher price for the same opportunities in this society. African Americans are dying at a much higher rate from the virus; thus, African American applicants who attend this exam are taking a much higher risk. Nationally, minorities are significantly underrepresented in the legal profession, with African Americans being about 4.4 percent and the Florida Bar even below this rate, with approximately 3.0 percent of its members identifying as African American.

Even the law schools in Florida have written and asked the Florida Board of Bar Examiners to reconsider holding the exam in mass gatherings. They offered classrooms at 202 of their colleges around the state to host examinees, and they were refused.

David Reeves, the chair of the Florida Board of Bar Examiners, is more concerned that, “To spread the exam out over multiple jurisdictions, you increase the risk the exam is no longer secure and is likely not to be fair to some group of people taking the examination.” What is missed here is that it is already not fair to a group of people being forced to take the examination: African Americans. As a specialist in class action defense, perhaps he does not see the African American bar exam ticket holders as a viable class that could be certified to bring suit against the Florida Board of Bar examiners for discrimination?

I am not alone in my quest, and in general, African Americans have not fared well in when attempting to pass the Florida Bar. Researchers state that the “National Conference of Bar Examiners consistently minimizes and obscures the disparate impact and unfairness of the bar exam for people of color.” Recognizing these facts The Florida Bar made it a point to adopt specific language proscribing discriminatory practices by lawyers. They even created a Standing Committee on Diversity and Inclusion. But, what does all of this mean for an African American Bar applicant? Do these concerned committees only activate once you have been admitted to the Bar in Florida?

I am not from a wealthy family. I cannot afford a lawyer to stop this injustice, and I am not a fool, so I will not act as my own lawyer. But, take note, I will not be signing a COVID-19 waiver to take the July Bar exam in Florida. I will not be afraid to speak out. I will not be embarrassed to say I have failed the exam numerous times, I will self-quarantine, I will wear a mask during the entire exam, I will push down the panic, I will sit dutifully and take the test in fear of not only failing again but of contracting COVID-19 and becoming seriously ill, or dying, or infecting my family members. Despite all of this, I will continue to chase my dream deferred, I will think about how unfair it is that I must continue to pay more for my opportunities than members of the majority population as I watch and wonder when will Black Lives Matter in a way that makes a difference to the Florida Board of Bar Examiners and in the great state of Florida.

Please feel free to share my thoughts as well as this petition by Catheren Page, a law professor in Florida and this petition by anonymous Florida Bar Examinees; perhaps someone will eventually listen to the truth.

 

Dr. Sybil Rosado is a practicing attorney and tenured full Professor of Social Science, Justice Administration, and Cyber Security at Benedict College. She earned a B.S. from Florida A&M University, a Juris Doctorate from Vanderbilt University Law School, an M.A. and Ph.D. in Anthropology from the University of Florida, and an M.S. in Cybersecurity from Norfolk State University.

 

Suggested citation: Sybil Rosado, When Will Black Lives Matter to the Florida Board of Bar Examiners?, JURIST – Academic Commentary, June 30, 2020, https://www.jurist.org/commentary/2020/06/sybil-rosado-black-lives-matter-florida-bar-exam/.


This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at commentary@jurist.org


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