Brian L. Frye, Spears-Gilbert Associate Professor of Law at the University of Kentucky College of Law in Lexington, Kentucky, discusses the inadequacy of the NCBE's response to the current global pandemic and the statements made by Judith Gundersen, the NCBE President, about recent graduates today...
The global pandemic brought out the best in many people. Every day, healthcare workers risk their lives to save others. Working people risk illness so others can shop at home. And regular people help their neighbors in need.
Unfortunately, not everyone has risen to the moment. Many people have fallen prey to wild conspiracy theories, and refuse to observe even basic safety precautions, like wearing a mask. Landlords threaten to evict their unemployed tenants. And legislators dither over whether and how to support people struggling to feed themselves.
Sadly, the legal profession has also failed this existential test, in almost every way. Of course, there are a few exceptions, including the legal observers monitoring the Black Lives Matter protests and the public interest attorneys representing those in dire need. But most of us are just making things worse. Judges are insisting on in-person hearings, when remote alternatives are readily available. Lawyers are requiring their employees to return to the office. And many law schools are planning for in-person classes, despite the risk.
But the most egregious failures of the legal profession belong to state bar examiners and the National Conference of Bar Examiners, which prepares and scores most bar exams, and conducts character and fitness evaluation for many states. A few have done the only right and sensible thing, and adopted diploma privilege for all 2020 graduates of accredited law schools. But most have not. Some states have insisted on a traditional, in-person bar exam, ignoring the health risks. Others have decided on an online bar exam, despite their total lack of preparedness. And many have just punted, postponing the bar exam until it is convenient for them, irrespective of the cost to applicants.
None of this is acceptable. It reflects an embarrassing degree of incompetence and lack of professionalism, all the more ironic and appalling coming from the self-appointed regulators of a profession that supposedly embodies those values. And as it weren’t enough, they went one better and adopted bizarrely punitive requirements for applicants, supposedly to prevent cheating, but inexplicable as anything but cruel, pointless hazing. Bar examiners have no business regulating menstrual products, bathroom visits, or fidgeting. Or rather, maybe they have always just been narcs, busybodies, and hall monitors, we just weren’t paying close enough attention.
The hubris and irresponsibility of the people regulating and administering the bar exam has been appalling across the board. For example, the Kentucky Supreme Court cancelled Kentucky’s July bar exam less than three weeks before it was scheduled to occur, leaving applicants hanging and jobless at the last minute. And one of the justices even had the gall to publish an op-ed in which he not only failed to apologize for the court’s mistake, but condescended to recent graduates who explained the hardship it caused them.
And yet, the worst offender of all is the NCBE, especially its comically incompetent leader, Judy Gundersen. For decades, the NCBE has benefited from a sweet grift, indeed. A virtual monopoly over most state bar exams means that it and its state bar partners can soak applicants for as much as they like, charging fees that have no relation to costs, and banking the proceeds to spend on lulus. Not exactly the behavior one expects of a charitable organization.
When the pandemic hit, and people began suggesting diploma privilege as an alternative to the bar exam, the NCBE was caught flat-footed. Everyone had come to accept the bar exam as a necessary evil, and the NCBE wasn’t prepared to defend it. Unsurprisingly, it insisted that the bar exam protects the public from incompent lawyers. But it couldn’t back up the claim, because it’s just a lie. The sad truth is, nothing really protects the public from incompetent lawyers, and the bar exam is just an administrative tax on applicants, for the benefit of the bar exam industrial complex.
Notably, NCBE doesn’t release data about its evaluation or scoring of the bar exam, because everyone knows it’s a farce. When you pull aside the curtain, you quickly realize that the NCBE and bar examiners are just a bunch of hacks, attempting to write and administer a law school exam on subjects they themselves don’t even really understand or even get right. If they tried to pull the same move at a law school, they’d get a scolding.
Gundersen embodies everything that’s wrong with the NCBE and the bar exam. From the beginning, she has refused to respond to critics of the bar exam on the merits and has insisted that diploma privilege is a terrible idea. Ironically, she herself was admitted to the Wisconsin Bar via diploma privilege, and has never taken a bar exam. She was also once a local prosecutor, and embodies many of the characteristics of the prosecutorial mindset described by Abbe Smith in her article, Can You Be A Good Person and A Good Prosecutor?: Self-righteousness, “the tendency to see things in black and white,” a lack of compassion, and a casual cynicism that results in a sort of “moral fascism.”
Anyway, it’s understandable that Gundersen and the NCBE would oppose diploma privilege so vehemently. After all, even a one-year diploma privilege would – will! – expose the bar exam for the farce it is. When you’ve got a great racket, you gotta defend it tooth and nail.
But Gundersen went way too far when she threatened her student critics. On an August 5 virtual panel hosted by Miami Law, Gundersen complained that she and other NCBE executives “have been the subject of extreme lack of civility and professionalism and in some cases, conduct that borders on harassment.” And then she said, “Character and fitness issues are arising in the way examinees are communicating with Board Staff and Board volunteers.”
As a public figure, it is Gundersen’s job to weather criticism of her job performance. Which, frankly, is quite well justified. If some of the criticism was intemperate, it comes with the territory. And it is beyond the pale for a regulator to threaten those who criticize its performance. Especially when that regulator is literally responsible for regulating its critics. The NCBE manages character and fitness evaluation in many states. Applicants could reasonably question its impartiality.
Amusingly, Gundersen justified her threat by pointing to a tweet encouraging bar applicants to join the panel and troll her. But the offending tweet was made by a notorious parody account, Yale Law Practitioners, the purpose of which is to mock the self-important gatekeepers of the legal academy. As Yale Law Practitioners would surely observe, Gunderson isn’t nearly “elite” enough to deserve its attention, let alone its scorn. Maybe she should focus on her own failings, and those of her organization. Now is not the time for defensive justifications. Now is the time for change. Be a part of it, or get out.
JURIST carries extended coverage of Bars Exams in the Pandemic. See also the JURIST Editorial Board’s July 9 statement on diploma privilege entitled The Diploma Privilege Manifesto.
Brian L. Frye is Spears-Gilbert Associate Professor of Law at the University of Kentucky College of Law. His scholarship focuses on intellectual property and legal history, especially in relation to artists and arts organizations. He is also an artist, whose films have shown at many museums, including the Whitney Museum of American Art.
Suggested citation: Brian L. Frye, The NCBE is a Joke, Give “Judge Judy” the Boot, JURIST – Student Commentary, August 5, 2020, https://www.jurist.org/commentary/2020/08/brian-frye-ncbe-judith-gundersen/.
This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at firstname.lastname@example.org
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