The Legal Beat
Law School Dean Lashes Out At D.C. Bar Seating Plan As ‘Likely Unconstitutional’
Posted on Tuesday May 10, 2022
Yesterday we told you about the controversy brewing over the July administration of the D.C. Uniform Bar Exam. Last week, folks that wanted to take that exam learned that capacity at the exam would be capped at 1,100 — which is *half* the number of people who took the July 2021 test. What’s more, they also learned that priority registration would be given to those that attended law school in the District of Columbia. Oh, and by the time they learned just how crunched seating would be at the exam, the deadline to register for many other jurisdictions had passed.
It’s a dilly of a pickle for the D.C. Court of Appeals who administers the exam and an incredibly stressful situation for the hundreds who likely find themselves locked out of the bar exam.
On Friday, Chief Judge Anna Blackburne-Rigsby responded to a letter from 100+ law school deans that practically begged the D.C. Court of Appeals to find a way to accommodate the wannabe test takers. That response repeated many of the excuses we’ve heard before, that seating capacity is limited at the venue:
“The Court has secured the largest venue available in D.C. on the dates of the exam. The seating capacity was determined by the size of the venue. We are able to seat a total of 1,100 applicants. The use of multiple smaller venues does not meet the needs for implementing best practices for administering a high stakes exam.”
And that the court’s April 1 announcement that there would be limited seating at the July exam should have given applicants enough notice to register for other jurisdictions’ exams. Of course, that April notice did not provide test takers with any sense of *how* limited the seating would be and especially not that capacity would be half of what was needed in 2021.
But rather that wait for all of his fellow deans to get together and respond, Erwin Chemerinsky, dean and Jesse H. Choper Distinguished professor of law at the University of California, Berkeley, School of Law, took the mic. As reported by Law.com he finds it pretty sus that there isn’t a bigger venue available: “It is hard to believe that in the entire D.C. metropolitan area there are not facilities that you could find to accommodate more test takers.”
“Moreover, your letter does not address the concern of the deans that it is arbitrary and unfair to favor those who attended D.C. law schools over those who went to law school in other jurisdictions,” Chemerinsky wrote. “I cannot understand the rationale for such favoritism and I think it is likely unconstitutional.”
This isn’t the first time law school deans have fought bar examiners over preferential treatment. Two years ago, New York announced a similar plan, but backed off when deans threatened to take them to court.
Chemerinksy said he believes giving preferential seating for the bar “violates equal protection because it is so arbitrary and serves no legitimate purpose.”
“If done by a state, it would violate the dormant commerce clause,” he said. “But it is unresolved whether the dormant commerce clause applies to the District of Columbia,” adding that he didn’t know whether a lawsuit is being prepared at this time.
Prior in-person administrations of the D.C. bar exam took place at the D.C. Convention Center, which has a larger capacity. However, an anime convention booked that space during the last week of July, and will do so in the future.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).