Read today’s editorial about last week’s explanation of the Bar exam mess, and then consider the following, about which we had a debate in yesterday morning’s editorial meeting:
Which is worse — the favoritism that many believed had been extended to the children of the connected, or just plain bad judgment, which in the end appears to have been the case? (And yes, I know many of you still believe there was favoritism, but for the sake of my question, pretend that you agree with me on this point of fact, so that we can hash out the dilemma I’m posing.)
I disagreed with my colleagues. They thought the court’s explanation, if one believed it (and we did), described a bad situation, but not as bad as if results had been overturned in response to phone calls by the powerful. I said it was worse. I said adjusting the results in response to calls from a lawmaker (the House Judiciary chairman, no less) and a judge was not inherently bad in and of itself, if those calls did indeed lead to finding some flaw with the system. In other words, if the action itself was not corrupt, it did not matter whether the impetus for the reconsideration gave the appearance of favoritism.
Yes, I know, most folks seem to assume that if the reconsideration was prodded by someone whose name we know, the adjustment has to be corrupt. But that isn’t true. And remember — there had been no substantive disclosure as to whether there was anything wrong with that section of the test or not. In the end, there apparently was nothing wrong with the testing, only the recording of the score in one instance. But most of the talk during the couple of weeks this issue ran was about who said what to whom, not the quality of the test.
But what the court says it actually did is to me worse than taking another look at the test because of some phone calls (which is what most of the hullabaloo was about). It discovered an error — one person who had been recorded as passing had actually failed that section, and therefore the overall exam. To me, there are only two options under such circumstances — let the result stand, and allow that one person to become a lawyer (in keeping with the rule that judgments are final), or give that one person the cruel news (and as one whose child became a lawyer in recent years, I realize how cruel a disappointment that would be) that the celebration had been premature, that he or she had failed.
What the court actually did was so nonsensical that I couldn’t quite take it in from our news account. I assumed I had read something wrong, so that my first question when we had our first post-holiday editorial meeting Monday morning was, "Tell me again what the court did." As it turned out, it had done exactly what I had thought I’d read: It decided to give that one candidate a free pass on that section of the test, and then gave everybody a free pass on that section, boosting 20 demonstrably unqualified people to the status of attorney at law.
When I had read it, I kept thinking that can’t be right. There’s no way that the court would turn 20 "fails" to "passes" because of a mistake on one. And yes, I can see how some would think it logical, and fair — to the test-takers. But the court has a higher responsibility to the 4 million people of South Carolina.
This was a serious error in judgment, and to me, worse than any inherent harm based on who made a call to whom.
Do you agree or disagree?
An error in judgment can be corrected and should result in a) it not being repeated and/or b) the offending party being held accountable. The fact that the Supreme Court feels no obligation to be accountable to the public in this case is reprehensible.
Cronysim (which I DO believe is the most critical element of this situation) is eternal and will continue as long as we allow those in power to get away with it.
I hope The State does not give up on this topic quickly. This is where the power of the press can do the most public benefit.
You write: “[A]djusting the results in response to calls from a lawmaker (the House Judiciary chairman, no less) and a judge was not inherently bad in and of itself, if those calls did indeed learn to finding some flaw with the system.”
Leaving aside the pointlessness of your “which is worse” hypothetical, you still don’t seem to understand the reported facts. The Court did not say that it took action because of calls from powerful people. The Court said it adjusted the scores because “a scoring error reported by the examiner of the Wills, Trusts, and Estates Section, was communicated to the Clerk of Court.”
You’re not understanding the question I’m raising, and perhaps that’s my fault. Let me try again.
We had a situation in which we were all understandably concerned because some prominent people made phone calls, and the next thing you know, test results were thrown out in a way that benefited those people’s children, and 18 others. We needed to know whether it was the phone calls, or some independent legitimate reason, that cause the test results to be changed, and the court was not forthcoming with an answer.
When the court DID come up with an answer, our board was unanimous in believing that the answer raised new concerns — that the court had chosen the worst of several possible courses of action. But my colleagues were relieved that the phone calls from the two prominent people at least didn’t play a part. That, they believed, would have been worse.
I believed that would not have been worse. I believed that the error of judgment was just as bad as the APPEARANCE of favoritism was, if not worse.
And I was asking readers whether they agreed.
The complicated part of what I was saying was this: The phone calls by the officials were not inherently something to worry about, IF they had brought to light a legitimate problem with the test that meant the results SHOULD be thrown out. Unfortunately, we had no indication that that was the case. Nor did we have any indication that it was NOT the case. We were in the dark, until the court’s belated explanation.
We were all concerned that the court’s action was the result of cronyism. You and most folks now judge the court’s official version as indicating bad judgment.
Jim Chen, Dean of the University of Louisville Louis D. Brandeis School of Law, has followed the matter a bit, reads it as cronyism under cover of stupidity, my words, not his.
He’s heavily influenced by conversations and correspondence with folks closer to the matter, but put’s great weight in this timeline maintained by blogger Not Very Bright, who’s added the contemporaneous remarks of the folks who worked very hard to get their scores changed.
As am I. Nothing in what the court did or said means that those who sought to change the scores did not influence one or more members of the court. The official act of the court as a body, proper but stupid, may well have been motivated by one or more members who just wanted to help someone out. They would not have had to say one improper word to court colleagues as they crafted a solution that met the needs of specific members of the asterisked twenty. Just another case of cronyism under cover of stupidity.
BTW, Chen’s blog entry is engaging in its own right. It’s not often that one encounters a bit of German, Dolchstoßlegende, Pickett’s Charge, and Faulkner all mixed in to make the point that it’s not easy living in the South with shenanigans like this popping up again and again.
Tell you what, Brad. Since you believed the court’s explanation, and a few weeks ago, you believed peaches to be South Carolina’s biggest crop. could I interest you in some oceanfront property in Kansas?
In my humble opinion, it was irresponsible for your editorial and Ariail’s accompanying political cartoon to suggest that this controversy calls into question the competence of every lawyer sworn in this month simply because the 20 whose grades were changed have not been overtly identified. The original and consolidated results lists are still available on the Supreme Court website, and it would take one of your staff members no more than 10 minutes to cross check the lists. The vast majority of test-takers worked very hard this past summer and passed the exam legitimately and on the merits. There is no reason to place an asterisk next to their accomplishments.
What I think people are missing is the obvious ethical breach – wherein the court stated there would be NO contact with the court or bar examiners after taking the exam. The SC Court also decided to terminate the appeal process as of last Feb bar exam – yet what happened was, 1. contact was made breaking the no contact rule; and 2. an appeal process was instigated.
While I think the Supremes did the best they could with the situation. What I think should have been done would have been to say “our ruling stands, results are final, no appeal”. That would have stopped this whole mess.
I have a great deal of respect for our Supreme Court but I think they reversed their previous decision of no appeals. My question is why and what about next time?
So you’re saying, essentially, that you don’t believe the court’s explanation. Because in the court’s explanation, appeals do not come into play. The court says the change was initiated by the discovery that someone previously ruled to have passed actually failed (which would not have been the result of an appeal — who appeals to switch a pass to a fail?), and that this discovery was followed by a very bad call — letting that person off the hook and, to be “fair,” letting 20 others off as well.
Brad, there are unfortunately several issues that make the court’s explanation hard to swallow (I don’t say impossible, but highly improbable). One in particular is that you have to either believe the Court about a scivners error AND Harrison’s and Burch’s ability to read the future that it would be uncovered the day before it happened OR you could believe Rep. Harrison’s previous statements that is was his daughter’s hard work that overturned the test scores. I don’t know how someone could believe both the Court’s explanation on one hand and Jim Harrison on the other, each of whom give directly conflicting reasons for the overturning of that section.
It does kind of make one wonder what the point is of having a bar exam, if the Court can just decide to admit to the practice of law 21 people who never passed it.
I’m also having trouble with the Court’s explanation that, because of its rule that “results reported by the Board of Law Examiners are final,” it couldn’t reverse the one guy’s score. Therefore, it reversed the results for 20 other people. In the interests of fairness.
That is just nonsensical.
very interesting, but I don’t agree with you