Operation Yakima Recovery

The dust has settled from the hideously botched Washington State bar exam a month ago. The state Supreme Court up there, itself quite divided about what's the right thing to do, has handed down, and reaffirmed on reconsideration, several rulings.

For those who weren't able to take the exam because of the tech failures at the test site, in Yakima, the outcome depends on whether they had ever failed a bar exam previously. If they had never failed one, they are eligible to join the Washington State Bar, as much as if they had passed the exam, unless they decide they want to actually take the test, either next week or in February. But if they had ever failed a bar exam anywhere previously, there's no relief except a waiver of further application fees.

For the relative few who were able to take the exam, because the tech was working in their testing rooms, it's a different story. They'll have to sweat out the grading in the normal course, as if nothing bad had happened.

None of these rulings were unanimous. On some of them, four members of the nine-judge court dissented.

Despite the relief felt by hundreds of frustrated would-be examinees, the situation remains messy at best. The waiver of the exam does nothing for first-timers who were planning to use their score for admission to the bar of any state other than Washington. The version of the bar exam that they were planning to take, but couldn't, was a national exam, and scores are transferable among many states. To my knowledge, no other state is going to give a free pass to the unfortunate souls who chose to take it in Washington.

And not granting a waiver to those who actually completed the exam despite the widespread tech problems is controversial. Many of those in that category were people with special accommodations due to disabilities. Although the technology worked well enough for them to answer all the questions, many of them claimed that the administration of their exam was disrupted. The court rejected their arguments. Now, normally you'd think, "They'll sue." But where? The state Supreme Court is pretty much the final arbiter on matters relating to bar admission. If some federal law was broken, a federal court could get involved, even the U.S. Supreme Court, but at this point that seems like quite the longshot.

Did the state court make the right call in letting first-time takers off the hook but making the repeaters suffer yet another indignity? There is a certain rationality to the distinction. The pass rate for first-time takers in Washington in the past three summers has averaged around 82 percent, while the pass rate among those taking the exam a second or later time has averaged only around 29 percent during that period. On the other hand, the botched test was supposed to be an all new, super-duper "next generation" version of the bar exam, and so past results seem less relevant than ever.

And then there's the sad truth that nearly one out of five people who just got a free pass probably would have flunked the exam, and yet they'll be getting a license to practice in October. I feel bad for their clients. And I even feel bad for these "lucky loser" examinees, too. Many of them would have benefitted from getting the message that they're not ready to be representing people. The bar exam famously tests only for minimum competence, and these candidates may not realize that they don't have it. That's dangerous.

Meanwhile, no one's taking responsibility, legal or moral, for the outrageously mishandled administration of the exam. Now, there's a lawsuit just waiting to be filed. And somebody in Washington surely deserves a demotion or a pink slip. The phrase "You had one job" seems particularly apt in this instance.