Courts reform controversial bar exam question
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Advocates with Unlock the Bar have rallied for years for the elimination of the Character and Fitness portion of the New York State bar exam. Last week, the presiding justices of the Appellate Division announced that Question 26 of the exam, which requires applicants to disclose their criminal histories, would see changes. File photo via Unlock the Bar/Twitter
By Jacob Kaye
Beginning next month, law students taking the New York State bar exam will no longer have to disclose every interaction they’ve had with the criminal justice system.
Last week, Justices Rolando T. Acosta, Hector LaSalle, Elizabeth Garry and Gerald Whalen, who all serve as the presiding justices of the Appellate Division, announced that Question 26 of the state’s bar exam’s Character and Fitness questionnaire will be amended beginning at the start of next month.
Question 26 currently asks – “Have you ever, either as an adult or a juvenile, been cited, ticketed, arrested, taken into custody, charged with, indicted, convicted or tried for, or pleaded guilty to, the commission of any felony or misdemeanor or the violation of any law, or been the subject of any juvenile delinquency or youthful offender proceeding?”’
Beginning April 1, the question will no longer require applicants to disclose certain interactions with the criminal justice system, including matters that were adjudicated in a juvenile delinquency proceeding in Family Court, citations or tickets or arrests and other encounters with law enforcement that didn’t result in formal criminal charges or an indictment, trial, conviction or guilty plea.
Advocates say the controversial question has had a chilling effect, dissuading potential attorneys who have had past interactions with the criminal justice system – ranging from misdemeanor violations as a juvenile to felonies – from applying to be an attorney. The chilling effect also plays a role in who and who does not apply to law school, advocates say – a majority of law schools ask about criminal histories on their applications as a way to conform with the requirements of the bar exam.
According to a recent report from the New York State Bar Association, of the 4,500 students admitted to law schools in 2021, fewer than 400 students identified as African American, Native American, Alaskan or Pacific Islander.
In New York, where a vast majority of people with criminal histories are people of color, advocates and a number of legal professional groups have also said that Question 26 contributes to racial disparities seen within the court system.
“By this change, the Appellate Division seeks to advance the diversity of the bar by reducing the possible chilling effect the previous Question 26 had on law school applicants due to the disproportionate rates of policing and prosecution experienced in communities of color,” the presiding justices said in a release.
“The four Departments engaged in a lengthy deliberative process hoping to strike a balance between this and other valid concerns on one side and the need to ensure the integrity of the legal profession and to protect the public from attorney misconduct on the other,” they added.
Beyond the discrimination and the chilling effect the question may have on potential attorneys, opponents of the question, who have been urging its removal for years, say it is illegal.
Sherry Levin Wallach, the president of the New York State Bar Association, which has recently called for the question to be eliminated from the bar exam, said in a statement last week that she believes by asking the question, the court system is violating New York Human Rights Law Section 296, which “unequivocally precludes licensing agencies from posing questions about arrests that are not pending and sealed criminal convictions.”
“We appreciate New York State’s courts acknowledgement of the chilling effect the previous Question 26 had on law school applicants due to the disproportionate rates of policing and prosecution experienced in communities of color,” Levin Wallach said. “This is the right thing to do – especially when it comes to juvenile delinquency proceedings in Family Court.”
“Unfortunately, Question 26 in its revised form will still have a chilling effect on potential applicants for the New York bar, particularly when we consider the over-policing of communities of color,” she added. “Our association will continue to work with the New York State courts and law schools to address the remaining issues regarding Question 26 and to encourage diversity in our legal profession.”
The co-leaders of Unlock the Bar, Tolu Lawal and Al Brooks, told the Eagle on Monday that while they welcome the change, the Office of Court Administration has a long way to go before it can correct the core issues with Question 26.
“It's a small step and it's good for the people who no longer have to answer the particular parts of the inquiry that they decided to remove, but [OCA] doesn't get brownie points for making a question halfway legal,” Lawal said.
Applicants will still be required to disclose cases that were terminated in their favor, youthful offender adjudications and sealed and expunged records, which Lawal and Brooks said violate both the New York State Human Rights Law and the Family Court Act.
“We can be grateful that the court system has acknowledged the discriminatory effect of Question 26 and the chilling effect of it – they acknowledged that there are major issues with this,” Brooks said. “But they're continuing to do it anyway.”
Brooks and Lawal said that while they believe the question is illegal, it’s been difficult to bring litigation – an avenue they say they’ve considered.
Finding someone with legal standing poses a host of issues, including finding a plaintiff willing to put their legal history out in the open while at the same time attempting to gain admission to the bar.
“The court system is continuing to operate an illegal system and litigation is obviously a possibility,” Brooks said. “But it is our hope that we can work with the court system, and if necessary, the legislature, in good faith to solve this issue much more quickly than litigation would.”
In their press release, the presiding justices said that they believe the “character and fitness process remains a holistic assessment aimed, first and foremost, at properly vetting candidates.”
But they also noted that they believe that “the new Question 26 will make the bar application a more just and welcoming process that encourages all aspiring lawyers to apply to serve as part of this vital profession.”
State Senator Brad Hoylman-Sigal, who chairs the Senate’s Judiciary Committee, introduced legislation at the start of this year that would make significant changes to Question 26.
Under the bill, the exam could not ask about arrests that are not pending at the time of application which had terminated in the arrestee's favor, adjournments in contemplation of dismissal, sealed convictions, juvenile delinquency proceedings and youthful offender adjudications.
Applicants would still be required to disclose convictions they received as an adult that have not been sealed, under the legislation.
“Requiring disclosure of criminal justice involvement on the bar application has an adverse impact on the representation of people of color in New York law schools, which require disclosure on their application forms to conform to the bar application's required disclosure,” the bill reads.
CUNY Law School, located in Long Island City, is one of the few law schools in the state that does not require potential students to disclose past interactions with the criminal justice system when applying to their school.
The legislation was passed by the Judiciary Committee in a 10-5 vote in late February. It now awaits a vote from the full Senate.
The Assembly version of the bill, which is sponsored by Assemblymember Jeff Dinowitz, has yet to be taken up for a vote by the Judiciary Committee, which Dinowitz chairs.
Former Queens Supreme Court Justice Sidney Strauss was a member of the Appellate Division, Second Department’s Committee on Character and Fitness for a decade and has long believed that Question 26 should be reformed.
As a member of the committee, Strauss said that he witnessed the rejection of bar applicants based solely on their criminal records, despite displaying great potential for practicing law.
“[The change to Question 26] should have been done a long time ago,” Strauss told the Eagle on Monday. “And unfortunately, even though the question has been raised before, it took a big demonstration like this to get it done.”
Ultimately, Strauss said that he hopes to see major changes to the bar exam, not just its Character and Fitness portion.
“I think it's about time they make the bar exam just a routine test,” Strauss said. “With the amount of money that has to be invested to go to law school, and then when you get all done doing this, you turn somebody down because of the results on the test.”
