Bar exam critics move to strike testing requirement for USD law grads

New push for apprenticeship follows years of debate, creation of study group

By: - January 15, 2023 1:00 am
Students at the entrance to the University of South Dakota Knudson School of Law. (Photo courtesy of USD)

Students at the entrance to the University of South Dakota Knudson School of Law. (Photo courtesy of USD)

On Wednesday, the state’s top judicial official asked lawmakers to refrain from any changes to the bar admission process while a committee studies it.

Within hours, a lawmaker vowed to file a bill that would change the bar exam.

Rep. Mary Fitzgerald, R-Spearfish, wants University of South Dakota Knudson School of Law graduates to earn a license without passing the most contentious part of the exam. 

Instead, under her proposal, USD Law graduates would pass the ethics portion of the test and put in 1,000 hours of apprenticeship with a licensed South Dakota lawyer who has at least five years of experience.

Graduates could opt to forgo the apprenticeship and take the bar if the proposal were to pass. 

It’s the second year in a row Fitzgerald has tried to alter attorney licensing. Last year’s bill was similar, but lacked an apprenticeship component.

Fitzgerald’s second go at the bar exam is the latest shot fired in a yearslong debate over the exam’s value – both as a measure of fitness for legal duty, and its alleged effect on the state’s roster of available lawyers.

South Dakota is 45th in the nation for lawyers per capita, according to the American Bar Association, and the issue is more acute in rural areas. More than 65% of South Dakota lawyers lived in one of four urban centers in 2013. Today, the figure is 72%, according to the State Bar.

The spark for the bar exam controversy came in 2014.

State Rep. Mary Fitzgerald, R-Spearfish. (Joshua Haiar/South Dakota Searchlight)
State Rep. Mary Fitzgerald, R-Spearfish. (Joshua Haiar/South Dakota Searchlight)

That was the year the state Supreme Court required potential lawyers to earn passing scores on not only the essay but also the multiple choice section of the exam, which is more likely to bedevil examinees in South Dakota and nationwide. Until then, scores for the two exam types were averaged. The court also changed the passing score on the multiple choice test from 130 to 135.

Passage rates had already begun to fall nationwide and in South Dakota at the time of the change, and they plummeted in the years immediately afterward.

In 2018, after a lengthy rules hearing, the high court adjusted its scoring system again, this time to allow examinees to transfer points from a high-scoring essay grade to their score on the multiple choice test. It also lowered the passing score for that multiple choice test by two points.

Passage rates have since returned to levels above the national average, Supreme Court Chief Justice Steven Jensen told lawmakers this week.

Fitzgerald and some others see the exam as an unnecessary burden for all graduates that disproportionately impacts Native Americans, non-English speakers and those without the means to spend the time and money necessary to apply for, prepare for and pass the test.

The test itself carries a $450 application fee from the state, with additional fees for character and fitness reports and fingerprints. Costlier still are test preparation programs and a loss of an income from months of full-time study.

“It’s going to take you a couple of months, and what are you going to do in the meantime?” Fitzgerald said.

The bar exam wasn’t a requirement for South Dakota lawyers until 1983. Backers of “diploma privilege” have pointed out that retired Supreme Court justice David Gilbertson, the longest-serving chief justice in the state’s history, didn’t take the exam. 

Fitzgerald said diploma privilege with apprenticeship would ease the burden on students and expand the pool of available lawyers.

“If you can go to law school and pass all those exams, you ought to be able to practice law in South Dakota,” Fitzgerald said. 

National discussion on bar exam structure

The conversation in South Dakota isn’t happening in a vacuum. 

The National Conference of Bar Examiners is working to update the test to a “Next Gen Bar Exam,” in part as a response to criticisms that the multiple choice section of the test stands as a barrier to practice. That process began in 2018, and the new test will begin rolling out in 2026.

The expectation, according to USD Law School Dean Neil Fulton, is that the multiple choice section of the exam will be replaced.

Discussions on how to improve the manner of testing for legal competency, Fulton said, ought to be “a perpetual quest” for legal educators. The dean doesn’t see issues with the test as a reason to do away with it, though.

“For those people who say, ‘well, the current exam doesn’t test as well as it should,’ that’s an argument to reform the exam and make it better, as opposed to not having a licensure exam at all,” said Fulton, who serves on a South Dakota bar exam study committee. 

Jensen outlined the goals of the study group in his speech on Wednesday, but he also said the bar exam is important.

“As a court, we are not unsympathetic to the individuals who have invested time and money in law school but are unable to pass the bar examination,” Jensen said. “However, these sympathies cannot outweigh our institutional obligation to protect the public by requiring an assessment of competence before issuing a license to practice law in this state.” 

Exam keeps some out of profession

But for his troubles with the bar exam, Jun Park would be a practicing lawyer in South Dakota.

Instead, the USD Law School graduate is looking for work in Seoul, South Korea, a city he left more than a decade ago to pursue an education and legal career in the United States.

Park, who studied political science as an undergraduate in Buffalo, New York, felt like he’d found a home when he landed in South Dakota in 2015.

The school and community was small and welcoming, and South Dakota’s Christian influences suited Park’s religious beliefs.

“The main reason I want to practice law in South Dakota is that I love South Dakota,” Park said from his home in Seoul.

Jun Park and former USD Law School Professor Roger Baron, pictured in spring of 2016. (submitted photo)
Jun Park and former USD Law School Professor Roger Baron, pictured in spring of 2016. (submitted photo)

Park did well in law school. He did not do as well on the bar exam. He passed the essay and ethics portions of the exam but stumbled on the timed, 200-question multiple choice section, called the Multistate Bar Exam (MBE). Park failed the MBE three times. The 2-hour time limit was a problem for him, he said, as was choosing one answer on questions where he saw more than one good one. 

The South Dakota Supreme Court declined to offer Park another chance, which is required in the state to take the bar more than three times. In most states, law school graduates can continue to take the test until they pass.

Some students move to states with less stringent requirements for retakes, or to one of the majority of states that average scores on different sections of the test to arrive at a final score.

Park’s classmate Jeff Holt did that, moving to North Dakota after struggling with the South Dakota exam. North Dakota doesn’t allow unlimited retakes, but it does scale its scores.

Before moving north, Holt paid his fees and spent months preparing for the South Dakota test. He missed a passing score in South Dakota by two points, he said.

Holt would like to see diploma privilege, but also sees apprenticeship as a reasonable track. His employer and his clients are pleased with his work, he said, and he sees that as a more realistic metric for legal skill than the MBE.

“Let their boss evaluate them after six months. Like any job, if they’re doing well, they could keep them. If they’re not, you let them go,” Holt said.

Holt said Park, his former law school moot court teammate, would have a lot to offer to South Dakota clients.

“I have no doubt that Jun would be able to handle any type of law you’d throw at him,” Holt said.

Test takers trip over multiple choice

Fitzgerald and her supporters point to the state’s scoring system as the problem.

“Basically, we are the only ones that grade our bar exams like this,” Fitzgerald said. “It’s created a shortage of lawyers.”

More pointedly, many who refer to those who fail the South Dakota bar as “victims” of the state’s testing scheme argue that the exam is a poor measure of competence. 

Supporters of Fitzgerald’s 2022 diploma privilege proposal told lawmakers that the timed MBE test punishes slow, methodical readers and English language learners for lacking skills lawyers don’t actually need.

Some even argued that slower readers may have more to offer potential clients.

“I want a lawyer who is methodical, who takes the time to do the research,” former USD Law Professor Roger Baron told the House State Affairs Committee in 2022

Lawrence County State's Attorney John H. Fitzgerald.
John Fitzgerald (Submitted photo)

Rep. Fitzgerald’s husband John Fitzgerald, a longtime prosecutor recently elected to a circuit judgeship, said in an interview with South Dakota Searchlight that the expense of the test is a particular concern.

Backers of bar exam change often hear from graduates who can’t afford to stop working for months to study or to spend thousands of dollars on study aids, he said. 

“It favors those who have more resources,” John Fitzgerald said. “It does play into this idea that there’s two systems: one for the rich, one for everybody else.”

Some of those issues are not unique to South Dakota. Forty-nine states require a bar exam for licensure. One, Wisconsin, has diploma privilege, but Fulton pointed out that the state has strict academic performance measures designed to make sure students grasp the basics tested for in the bar. 

New Hampshire’s Daniel Webster program, which allows some students to forgo the post-graduation bar exam, builds bar exam testing into its coursework.

Other states, including Oregon and Minnesota, have explored alternatives through apprenticeship.

Support for scoring system

Fulton and Jensen reject the notion that the state’s scoring system is behind examinee troubles – especially today. 

A 2018 rules hearing that lowered the required MBE score to 133 from 135 and instituted a point sharing option saw a host of legal minds challenging the scoring scheme and questioning the exam.

Thomas Geu, the former USD Law School dean, decried the increasing complexity of bar exam questions. Mark Mickelson, former speaker of the South Dakota House, questioned the value of a higher score to potential clients across the state. One former chair of the Board of Bar Examiners, Jim Leach of Rapid City, sided with John Fitzgerald in arguing for a return to the pre-2014 system, noting the disparate impact the changes had on Native American lawyers.

University of South Dakota Law School Dean Neil Fulton speaks to students. (photo courtesy USD)
University of South Dakota Law School Dean Neil Fulton speaks to students. (Photo courtesy USD)

“As best we can estimate, we think there are about 30 Native American lawyers in South Dakota, and that’s approximately 1% in a state where the population is 10%,” Leach said. “In western South Dakota, I’m told that approximately half the cases that are filed involve Native Americans.” 

Leach also questioned the importance of a higher required score. When Leach sat on the board, between 1997 and 2008, the passing score on the MBE was 130. Every year, he said, a handful of lawyers would pass with scores lower than the 135 required after the 2014 rule change.

“We have a whole group of lawyers that have been practicing between nine and 21 years, and further back than that, who got in with scores between 130 and 134,” Leach said. “To my knowledge and belief, we have not had a problem with incompetent lawyers in South Dakota.”

Jensen, who had only recently joined the Supreme Court in 2018, said the changes made that year have paid off. But he also said the hearing signaled that the next set of changes deserved a more thorough review. Jensen hopes to invite representatives from the National Conference of Bar Examiners to speak to South Dakota’s bar exam committee this year.

The cost of exam preparation, passage rates, barriers to entry and potential changes to the test at the national level all played into the Supreme Court’s decision to appoint the study group less than a year after Rep. Fitzgerald’s bill failed in a legislative committee, Jensen said.

Instead of a change by legislative fiat or moving in one direction or the other to satisfy specific interest groups, Jensen said, the hope is for a thorough review that can inform meaningful action.

“Those are really the factors that caused the court to say, ‘let’s look at this. Let’s not try to piecemeal it or try to fix something that maybe really isn’t the problem,’” the chief justice said. “Let’s look at this comprehensively and put a group together to study it so we have good information in terms of whether their changes should be made.”




Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

John Hult
John Hult

John is the senior reporter for South Dakota Searchlight. He has more than 15 years experience covering criminal justice, the environment and public affairs in South Dakota, including more than a decade at the Sioux Falls Argus Leader.