Let’s talk bar exam

Sometimes, when I know we’re going to editorialize about something, and I’ve had that internal conversation, I forget to blog about it. Or I don’t have much to add to what the editorial says, and don’t blog about it for that reason.

Other times, I have some other stuff to say, but it would probably take a whole column to say it, and I don’t get time, or I want to save it for the column, and I don’t blog about it for THAT reason.

The first and third reasons sort of apply on the bar-exam thing, but we should delay no longer. Until I write that column, or something close to it, here’s our editorial on the subject from yesterday, so we can go ahead and get a thread going about it here:

LIKE TO BELIEVE House Judiciary Chairman Jim Harrison was merely trying
to alert officials to a potential problem with the Bar exam, and not
trying to pull strings on behalf of his daughter, when he called the
Supreme Court and the head of the testing board in apparent violation
of a new court rule.

We’d like to believe that Circuit Judge Paul
Burch’s call to that same official was merely to inquire about an
appeal procedure, and not to intervene on behalf of his own daughter.

it would be nice to believe that even if either man was trying to gain
an unfair advantage for his daughter, those actions had no effect —
that the court indeed threw out one section of the exam because “a
scoring error reported by the examiner” left it with no better options,
and not because, as Mr. Harrison’s daughter bragged on the Web, “We
worked really hard last week to make this happen.” That would mean our
Supreme Court has moved beyond the small-town, back-scratching,
who’s-your-daddy politics that still permeates the Legislature that
elects judges.

We’d like to believe all that, just as we like to
give our Supreme Court the benefit of the doubt in all situations —
something we tend to believe it deserves. But until the court better
explains its handling of this affair, we can’t.

We understand the
reluctance of judges to answer questions outside the courtroom, to
confine their explanations to formal opinions that address only those
matters that absolutely must be addressed. Judges’ words have special
meaning in our society, and a careless one can send the other two
branches of government off in directions they needn’t go.

when it regulates the legal profession, the Supreme Court isn’t acting
as the judicial branch of government. It is taking on an administrative
role — and in that realm, the public deserves answers.

The court
might have gotten away with its curt explanation for essentially giving
students a pass on one-seventh of the exam if it had actually issued
that explanation at the time that it granted that gimme. It did not,
and that raises more questions than the court has answered:

What was this “scoring error” that the examiner reported, and how did he discover it?

Was the examiner aware of the phone calls by Rep. Harrison and Judge Burch?

was the failure rate on the section, and how did that rate compare to
1) the usual failure rate on that section and 2) the failure rate on
other sections?

Will Rep. Harrison and Judge Burch be investigated for their possible violations of court rules?

to any Web site where this whole mess is being discussed, and you’ll
find lots more questions — some of which are legitimate, some of which
are not. But the point is that the court created the environment in
which conspiracy theories thrive. And in the Internet age, that has
cast a shadow of suspicion over the 20 lawyers who benefited from the
change, over the entire legal profession and, most importantly, over
the court itself.

This leaves the court in the unfortunate
position of needing to go much further in explaining itself than it
normally would need to. But that is a small price to pay to restore the
crucial public confidence that this situation has threatened to


12 thoughts on “Let’s talk bar exam

  1. Homeboy

    Great job on the editorial. Great job by the SC Bar’s Board of Governors to ask for an explanation. Let’s hope if and when the Supreme Court does “go much further in explaining itself than it nornally would need to” that it will tell the truth. This isn’t just a parked car that can be taken to a body shop and repaired this time.

  2. Mike Cakora

    This episode is bizarre, the court’s action seems indefensible. Kinda shoots the notion of the “Rule of Law” in the butt, no? And by lawyers!
    The Chief Justice won’t discuss the court’s rationale. What does that tell a reasonable person other than it’s not how hard you strive, but who you know?
    She’s been on the high court almost 20 years; her current term expires in 2014 and she’s old enough to retire
    I hope that she clears the whole thing up during her resignation speech next week.

  3. weldon VII

    I don’t know what everybody’s so upset about.
    I mean, it’s not like somebody left the scene of an accident or anything.

  4. weldon VII

    And now a more serious comment.
    Perhaps worse than the act of changing the grades is the attitude of the court, which seems to be saying, “We’re the Supremee Court, and we don’t have to say anything about this if we don’t want to.”
    The justices should be reminded that the other two branches of government, not the courts, make the law, and the Supreme Court is not above it, no matter how Jean Toal acts in matters vehicular.
    Matters of law must be subject to public scrutiny, else judges and legislators seem to have appointed themselves gods.

  5. Silence Dogood

    Brad, I appreciate that the state has kept up the stories, and written and editorial about this incident because it is very important for the people of this state to believe their legal profession is administered fairly, this story – without the further explaination that so many are no asking for – seems on first, second and third blush, not to be above board. One thing that I am curious about is that the bar examiner or examiners in charge of that section of the bar exam has not yet been questioned. In light of the Supreme Courts current/terse statement on it and head of the bar examainers George Hearn’s statement that he knew nothing about what happened after the bar exams were turned in, I would love to know what the bar examiners who supposedly reported “a scoring” error after that date were thinking by not alerting their boss about the change in grades or going to the Supreme Court to let them know about it. I don’t know if the Will Truts and Estates examiner(s?) has been interviewed yet, but I haven’t seen a “no comment” from them in the press yet. However, a few words from them could clear things up…or make them a LOT MORE MESSY really quickly.

  6. Mike Cakora

    In your entry you say that it was the bar examiners who reported a scoring error; that has not been reported. So for three is no report that anyone involved in developing, administering, or grading the exam played a role in the court’s decision.
    By all accounts to date it looks like the justices somehow determined on their own that there was a scoring error.

  7. Mike Cakora

    Silence Dogood –
    Here’s today’s (Saturday’s) report from John Monk and Rick Brundrett. And here’s the pertinent excerpt:

    However, on Nov. 2, a week after the original list of 428 who passed last July’s bar exam was published, the Supreme Court added 20 names.
    In a brief statement posted later on its Web site, the high court said it had discovered a “scoring error” but didn’t divulge details such as what the error was and who found it.
    Moreover, the court apparently didn’t consult with George Hearn, chairman of the Board of Law Examiners, which grades the bar exams, about the error.

  8. kc

    Mike C, the Supreme Court’s statement said: On October 31, 2007, a scoring error reported by the examiner of the Wills, Trusts, and Estates Section, was communicated to the Clerk of Court.
    The statement is worded in such a way as to leave open the possibility that someone other than the Wills, Trusts, and Estates examiner is the one who “communicated” the error to the Clerk of Court. I may be parsing it too much, but . . .

  9. Gordon Hirsch

    No matter what they say, any further explanation will be tainted by the fact that there’s no way to corroborate it independently from a trustworthy source. We have to either take their word about what little has been said, or believe what may yet be said. Given the personalities involved, that’s hard to swallow. … It’s a pretty sad statement on our highest court. Their credibility is shot.

  10. Gordon Hirsch

    Or, let’s put it another way – Everyone involved should resign, starting with Jim Harrison, Paul Burch, Jean Toll, et al. Then (maybe) we can start over with a fresh crop and a bigger gavel. Until that happens, our Supreme Court will remain a public joke.

  11. Slugger

    The students that passed the law exams have been done a great injustice. They studied hard and passed apparently a very hard exam to become a lawyer only to find out that 20 of their fellow students received special treatment. Shame on all that were involved in this miscarriage of justice.

  12. slugger

    After two weeks, South Carolina’s justices broke their silence and said the grade changes had nothing to do with complaints from the examinees. The court in a statement that the grader of the wills, trusts and estates section of the exam had discovered he passed an applicant who actually should have failed that portion – and thus would have failed the entire test.
    But the names of the people thought to have passed this year’s July exam had already been publicly released, including that of the one applicant whose test was improperly scored. Instead of acting as other states’ examiners did four years ago, retracting the applicant’s congratulatory letter, the justices chose to reverse the 20 other scores en masse.
    The above was taken from The State newspaper. The students that passed the exam without receiving special treatment need to the congratulated for all the hard work and study hours spent to pass without help. Will there be special treatment in the future for those that did not pass the whole exam? The door has been opened.

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