Question 26 leaves bar applicants in legal limbo
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Advocates have been rallying in recent months to demand the Office of Court Administration repeal Question 26 of the state’s bar exam and eliminate Character and Fitness evaluations. Photo via UTB/Twitter
By Rachel Vick
Former Queens Supreme Court Justice Sidney Strauss spent a decade reviewing hopeful lawyers’ Character and Fitness for the Appellate Division, Second Department.
During his tenure on the Committee on Character and Fitness, he saw the rejection of bar applicants based on their criminal records — despite having stellar records.
Strauss recalled one case where a man who applied for admission to the bar after serving his time earning his degrees and becoming a pastor, was repeatedly turned away. Strauss said he and several other members pushed back against the decision but were told by the executive director to consider how their approval would look in the public eye.
“How can you do this?” Strauss told the Eagle. “Isn't incarceration supposed to be about rehabilitation?”
The fight against Question 26 of the bar application, which asks about an applicant's criminal history, is once again being placed at the center of a conversation about building an equitable justice system, with advocates and bar association leaders condemning the allegedly illegal framing.
Strauss said Question 26 is “absolutely” illegal and suggested those with rap sheets reach out to their appellate division with an inquiry about whether or not they would be allowed to practice prior to applying to law school, to save potential students time and money.
Advocates, however, say that checking with the appellate division does little to get to the root of the issue. Tolu Lawal, an organizer with Unlock the Bar, said the answers applicants get early in their legal education are not binding and have been rescinded when they apply for admission to the bar.
“Someone who is formerly incarcerated could go to the court and get that affirmative but after the appointment they could come down to Character and Fitness where the committee member could make that decision; the advisor opinions aren't really helpful at all,” she explained. “Not only is it not a long term solution, it's not a short term solution.”
Advocates say the question is just one facet of an admission process that was built on a discriminatory framework — a process they say needs a full overhaul.
“It's not something that can be tweaked into becoming equitable. In and of itself was created for maintaining a white legal majority; it is baked into every aspect of the process,” Lawal said. “People are incredibly attached to the idea and veneer of legitimacy it has but were hoping to chip away at it by getting rid of the questions that cause the most disparities.”
Lawal and Al Brooks, both from New York University Law, say changes in culture need to come from within the profession.
“It feels hypocritical of us to not look introspectively at the systems we’re part of,” Brooks said. “If you're willing to do that, it feels like there's obligation to recognize those people needed to be able to represent themselves [and any] lawyer thinking critically is probably struck by injustice, but people not thinking intentionally and how this is an instance of an injustice [is what we want] lawyers to overcome.”
The question, which asks applicants “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,” also allegedly fails to comply with the New York State Human Rights Law and the Family Court Act, advocates say.
Advocates emphasize the wide reaching impact of the question and the Character and Fitness element overall, which they say act as a deterrent before application to law school and throughout the process.
A 2021 report from the National Justice Impact Bar Association highlighted the disparate impact of the question on communities of color, which are arrested and convicted at disproportionate rates. Of the 85 law schools surveyed across the country, 80 asked applicants to disclose an aspect of their justice-impacted background.
Approximately 70 percent of schools modeled their disclosure after their respective state’s bar application.
NJIBA President Dieter Tejada, who was formerly incarcerated and is in the midst of a lengthy process to prove his own character to the Connecticut Bar, said he has heard from colleagues who have had to rehash the hardest moments of their lives; an exonerated applicant being given a hard time and a victim of domestic violence asked to detail her sexual history — only to be denied for the committee’s concerns for what her experience would do to her mental health as a practicing attorney.
“I got the [grades], I did all the things they say make you a good lawyer and I took their bar exam and crushed that, but I'm not licensed and it’s because I’ve been jammed up because of my background,” Tejada said.
“The number one thing I think qualifies me is not that I did better [academically] but my experience with the system qualifies me to work and is what's being used against us,” he added. “That’s one of the most valuable things we can bring to the space: a much needed perspective on injustice.”
Strauss, recalling the aftermath of the pastor’s rejection in the early 2000s, called the situation “horrendous.”
“I’ve never been so embarrassed about what my colleagues did,” he said.
Though the members of the New York and justice-impacted legal community say change from the Office of Court Administration — which has the power to adjust or eliminate the question — is slow, they have hope for the future of the profession.
UTB leaders said they see the support on the ground, and Tejada says change is coming one way or the other.
“New York can be on the right side of history here and be one of the first ones to do it,” he said. “But it’s going to happen everywhere.”
