Virginia Bar Exam: Lack of Transparency
Part III of a Legal Catch 22
Johnathan Bolls
Issue date: 1/26/10 Section: Features
Over the past year I have decided to represent myself in an interesting legal case against the Virginia Board of Bar Examiners. First, a quick review of my background. I graduated from law school in May 2008 and took the Virginia Bar Exam in July. At the test I experienced a software malfunction that caused me to have to seek hands-on technical assistance during the saving stage of the exam. In October, when the results came out, my essay score appeared to be significantly underreported, and I requested my essays. After being denied from obtaining my essays, I filed for an emergency court order in the Fairfax Circuit Court in November. That court took the matter under advisement and ultimately denied relief for lack of jurisdiction in mid-March.
The Fairfax Circuit Court, in considering what remedies are available to an aggrieved test taker, requested supplemental briefs on the applicability of the state Administrative Process Act. It turns out the Board is both exempt from that as well as the Freedom of Information Act. Without the essays, it was impossible to make an informed decision as to whether to petition the Virginia Supreme Court under one of the substantive grounds of review for a bar exam (substantial misgrading, manifest unfairness, fraud, imposition, or coercion). Even if one of the above occurred, it would be impossible to prove it without the only evidence in which it could be proved. Despite repeated requests, I was completely thwarted in all my attempts to obtain the essays.
In order to get perspective on Virginia's nondisclosure policy, I phoned each bar examiner office in the country (contract info. easily accessble off of the National Conference of Bar Examiners' website) to find out what rights applicants in those jurisdictions have to their essays. It turns out 43 jurisdictions allow some form of access, most of which simply send the essays in the mail for a small fee. I also discovered that many of these states, like New Hampshire and Tennessee, just recently instituted the computer based test in the last year or so. Some, like Connecticut, Massachusetts, and Indiana have been considering it for some time but have decided against it for one reason or another.
The Fairfax Circuit Court, in considering what remedies are available to an aggrieved test taker, requested supplemental briefs on the applicability of the state Administrative Process Act. It turns out the Board is both exempt from that as well as the Freedom of Information Act. Without the essays, it was impossible to make an informed decision as to whether to petition the Virginia Supreme Court under one of the substantive grounds of review for a bar exam (substantial misgrading, manifest unfairness, fraud, imposition, or coercion). Even if one of the above occurred, it would be impossible to prove it without the only evidence in which it could be proved. Despite repeated requests, I was completely thwarted in all my attempts to obtain the essays.
In order to get perspective on Virginia's nondisclosure policy, I phoned each bar examiner office in the country (contract info. easily accessble off of the National Conference of Bar Examiners' website) to find out what rights applicants in those jurisdictions have to their essays. It turns out 43 jurisdictions allow some form of access, most of which simply send the essays in the mail for a small fee. I also discovered that many of these states, like New Hampshire and Tennessee, just recently instituted the computer based test in the last year or so. Some, like Connecticut, Massachusetts, and Indiana have been considering it for some time but have decided against it for one reason or another.
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posted 2/02/10 @ 9:49 AM EST
Lack of transparency?? NO transparency at all!
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