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bar exam appealsShould All States Allow Bar Exam Appeals?

The bar exam comes at the end of three years of studying in law school, thousands of dollars spent in tuition, and then even more time, money, and energy spent on expensive bar review courses. It is the last step for students on their way to finally becoming lawyers.

The bar exam requires that students complete both an essay portion and MBE portion. The MBE portion is scored by a computer.  The essay portion is hand-scored.

Most states have a one-tier grading process for essays. That is, each essay goes to one specific grader, the grader assigns a grade according to a rubric, and that’s it. That’s the students score. Some states train their graders (although it is very difficult to decipher how most graders are trained) and many states provide a grading rubric for graders to follow (although, again, it is very difficult to find out much about the grading rubric, as most states do not release them, perhaps because they do not want errors to be so easily found).

And even though it seems kind of ridiculous that this grading process is so secret — given that a student’s entire law license depends on this grade, and that students who take any other important exam are generally told why they received a certain grade! — it is even worse when you realize that a lack of accountability in grading can lead to less careful scoring by the grader. It is further exaggerated by the fact that many graders are expected to read hundreds of essays in a very short period of time. This fast pace that a grader is expected to work at truly exaggerates any risk of error that is already there due to the lack of accountability that comes from not releasing grading rubrics.

Indeed, a grader is only human. Mistakes are bound to be made and oversights are bound to occur. Even personal factors could play into a grade that a student receives. Indeed, whether the grader is happy or sad or caffeinated or just read a great essay or a terrible essay or distracted by the television or their glass of wine or their significant other arguing with them – this can all make a difference in an examinee’s score.

We mean no disrespect to these graders; indeed, we know that they are fallible. However, this means that their grading decisions can be strongly influenced by something that is not on the page they are looking at.

Which also means that whether a student passes or fails can be determined, to some degree, by a grader’s mood, caffeine level, or relationship status.

Regrading:  To cure any potential discrepancy in score, about 40% of jurisdictions purport to offer a regrading process if students are a certain number of points away — that is, a second tier to their grading process. Some states are very elusive and simply say they grade essays of applicants “near the pass line” (Florida, Missouri, Texas). Others place a specific point limit on it. For example, say if an applicant is 6 points away (New Mexico), 5 points away (Michigan) 4 points away (Georgia) 2.9 points away (Mississippi) or 1 point away (Ohio) from passing, the essays will be regarded. Lastly, some states place a percentage (i.e. Oregon regrades the top 15% of unsuccessful applicant’s essay scores. Virginia regrades “usually 10%”). (To look up what your state does, see this post.) A regrading process is one way to “catch” any mistake that was made during the initial grading process.

However, unfortunately, a regrading process still does not do justice to some applicants. For example, we had a client in Michigan last February who was unjustly graded despite an automatic regrading process. Michigan’s “automatic regrading” process is invoked when students are five points away. Our client last year was six points away from passing. Why? Because she received a 0 on an essay that she likely deserved a much higher score on (and indeed, ended up receiving 6 points back on appeal for that essay). According to Michigan’s grading rules, a 0 should be awarded if an applicant makes no attempt to answer the question. Not only did our client attempt to answer it, she also provided a great answer. Thank goodness that Michigan also has another process, an appeals process (discussed below), for the applicant to challenge her score. Without an appeals process, she wouldn’t have even been able to challenge what was an obvious error by the grader. But not all cases are so drastic. We have seen essays that are obviously undergraded, practically mirror the model answer, and still receive a deduction of four points for no reason we can decipher. Without an appeals process, these errors would go unnoticed.

Thus, a regrading process is not enough because some of those who are the most wronged do not even get to take advantage of a regarding process. Further, the majority of states do not even offer such a process. And many of the states that do set the bar too high (i.e. only offering regrading if an applicant is one point away).

Bar Exam Appeals: A bar exam appeals process allows a student an opportunity to argue why he or she deserves a higher score than was initially awarded.

The vast majority of states do not allow bar exam appeals. Indiana, Michigan, Mississippi, and Guam are among the states that have some kind of appeals process when an applicant feels as though they were unfairly graded on an essay(s). But that’s about it. So while approximately 40% of states purport to offer a regarding process, about 6% of states allow an appeals process to review the substance of an essay.

Some states (Connecticut, Iowa, Utah, and others) allow a bar exam appeal in a very specific set of circumstances. Connecticut allows an appeal for a “clear clerical error” (as if it is always clear what a “clear clerical error” is…).  Iowa allows a petition to the Supreme Court if there are “extraordinary circumstances” and Utah allows an appeal if there is claim that the failure was because of “a substantial irregularity in the administration of the examination that resulted in manifest unfairness or because of mathematical errors in the scoring of the Applicant’s examination” (however, this Board will not “reread, reevaluate, or regrade” bar exam answers).  These standards are elusive and would not provide assistance to applicants who are simply undergraded on an essay.

The fact that most states do not have any real appeals process (in addition to not having an effective regrading system) is astonishing to us.

An appeals process makes sense for several reasons. First, it is what happens in most “real life” scenarios. Practically every level of court in every state allows an appeal if a party feels as though they have been unjustly treated. If you lose at trial, you can move up to the Court of Appeals and even the Supreme Court if need be. Further, there are even appeals processes at undergraduate schools, graduate schools, and law schools if a student feels as though they have been unfairly graded on an assignment or in a class. Appeals are not necessarily wildly successful. But they are when they need to be, at least most of the time.

So why deny this process to a student when they are taking the most important test of their life? It indeed seems ironic for a profession whose goal is to seek justice to deny this justice to its applicants.

An Appeals Process can be Fashioned by the State. Further, just as states can invent their own protocol for regarding, states could also invent their own protocol for a regrading process.  There is no one-size-fits-all appeals process, even among the few jurisdictions that allow for a true appeals process. Some states (like Michigan) allow applicants to submit briefs and appeal as many essays as they want. Other states put a maximum on the number of essays that can be appealed (Guam allows three).

States can set up guidelines for what they want their appeals process to look like. This gives the applicant a chance to argue for admission using the state’s framework This would give a voice to grieved applicants and it would allow states to listen to specific complaints posed by the applicant.

Are there downsides to an appeals process? Yes. We wrote half of the passing bar exam appeals in the state of Michigan last July and the biggest downside we see is students putting all of their eggs in the “appeals basket” so to speak and not putting enough time and energy into the next bar exam when an appeal is never guaranteed.   We also talk to appellants who are unrealistic or who truly miscomprehend the point and purpose of the appeals process.

However, those risks that are inherent in any appeals process are not, in our humble opinion, enough to deny students the opportunity to participate in an appeals process.

Indeed, the risk of not having an appeals process is much greater to a student. What is that risk? That risk is that a student is wrongfully denied admission into the bar when they should be admitted. Not only does the student suffer mental and emotional harm, but that student has to wait another six months to take the bar exam and even longer to find out their score. That is six more months of studying and not working. Many students lose job offers if they do not pass the bar exam when they are “supposed” to. Further, they are forced to pass up opportunities that may come their way in the interim before the next bar exam.

Unfortunately, we don’t see this problem changing any time soon. Students who fail are told to deal with it, try again, and quit complaining. They are told their answers aren’t that good anyway, they were lucky to get the scores they did, and they need to study harder. And maybe it is true in some cases. But it is not true in all cases. And for a profession that is always babbling on about due process, it is past-due time to implement a process that distinguishes between the two.

(Until then, however, it is wise to continue to hope and pray that your bar exam grader is in a good mood, drinking wine, read a poorly-written essay before yours, and just got a text from their significant other.)

  • Looking to Pass the Bar Exam on Appeal?

    Check out our information on Michigan bar exam appeals here. JD Advising founder and her partner founded the Heidemann Jabbori law firm, which wrote all of the passing appeals in Michigan for the July 2018 Michigan bar administration.


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