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Supreme Court Names Committee of Lawyers to Review SD Bar Exam; Partner Orgs Support Critical Race Theory?

Last week the South Dakota Supreme Court appointed a committee to study the bar admissions process. Surprisingly, the committee consists entirely of South Dakota lawyers:

Chief Justice Jensen will chair the Committee.  The committee membership will also consist of:

  • Dean Neil Fulton, Knudson School of Law, Vermillion
  • Jack Hieb, Attorney, Aberdeen
  • Sheridan Anderson, Chief of Legal Research, South Dakota Supreme Court, Pierre
  • Josey Blare, Attorney, Sioux Falls
  • Dennis Duncan, Attorney, Sioux Falls
  • Aaron Eiesland, Attorney, Rapid City
  • Denise Langley, Attorney, Access to Justice, Pierre
  • Lisa Marso, Attorney, South Dakota State Bar Association President, Sioux Falls
  • John Richter, Attorney, Pierre
  • Mark Vargo, Attorney General, Pierre
  • Eric Whitcher, Pennington County Public Defender, Rapid City

I say “surprisingly” because, as we have learned from Governor Kristi Noem’s rewrite of our K-12 social studies standards, when the state needs to study an issue requiring professional expertise, it throws out the work of actual professionals and turns to political hacks and outside interests.

This committee of lawyers could end up facing the same fate as the educators worked diligently to revise our social studies standards, only to see the Governor rip up their work out of false fears of “critical race theory” to turn the standards into a political prop for her national campaign. The Supreme Court’s order for this study notes that the National Center for State Courts and AccessLex Institute are contributing staff and resources to support the project. Both organizations do work that promotes concepts Governor Noem and her partisan culture-war hawks would likely condemn as expressions of critical race theory.

Just this month, the NCSC sponsored a National Convening of Court Diversity, Equity, and Inclusion Professionals to “allow professionals who work in America’s courts the opportunity to learn and share DEI best practices in a supportive and relevant environment.” The NCSC has done research to support drawing more diverse and inclusive jury pools. The organization has said “systemic barriers” prevent “people of color” and other groups from “accessing justice and legal help.” In May 2021, the NCSC launched the “Blueprint for Racial Justice” to address those barriers. The Blueprint supports a resolution by the Conference of Chief Justices and the Conference of State Court Administrators that calls for courts to, among other actions, “identify and address unconscious bias, and facilitate the uncomfortable conversations that arise from the recognition of such bias”, “collect, maintain and report court data regarding race and ethnicity that enables courts to identify and remedy racial disparities”, “develop career pathways to improve the racial and ethnic diversity of the bench, law clerks, and court staff, as well as the legal community”, and “engage in conversations with communities of color, so that, in the words of Bryan Stevenson, founder of the Equal Justice Initiative, our courts ‘get proximate’ to the challenges faced by such communities”.

AccessLex supports LexScholars, a program to recruit law students “from underrepresented racial, ethnic, and socioeconomic backgrounds who possess potential for law school success but may be unlikely to gain admission due to unfavorable standardized test scores.” LexScholars operates from the premise that the lack of demographic diversity in America’s legal profession directly reflects “unequal access to legal education” that must be remedied through “systemic change“. AccessLex also supports the “Professionals in Legal Education Developing Greater Equity” Fellowship program to support law school students from underrepresented groups by “fostering environments of diversity and inclusion in law schools.” AccessLex holds that “racial diversity is crucial to quality legal education and to an effective legal profession“.

NCSC’s and AccessLex efforts to fight systemic racism in America’s courts and legal profession should scream “Critical Race Theory” to Governor Noem and her anti-woke warriors. Expect Noem to storm into the South Dakota bar admissions study committee’s next meeting and demand that they sever all ties with these woke organizations. Or maybe expect the Governor to simply dissolve the committee and pick Mark Miller (sure, he’s a lawyer!) and some other loyal political cronies to rewrite the bar exam themselves to make sure South Dakota’s law students don’t have to know a thing about critical race theory (which is a law school topic), systemic racism, or diversity, equity, and inclusion.


  1. O 2022-11-28 10:19

    Correct me if I’m wrong, but unlike education, the state plays no role in the Bar. The Bar association is a self-contained professional organization who control their own standards and practices. Whereas the state plays a direct role in the standards and practices in education. SDEA does not accredit or certify the credentials of teachers.

  2. Arlo Blundt 2022-11-28 14:49

    I have faith in the SoDak Bar and the Supreme Court to run an up and up process…there is a perceived need to modernize Bar admission. This is progress and of course will be viewed with disdain by the Noem Administration, such as they are.

  3. R. Kolbe 2022-11-28 19:27

    Both planed ( Jim Crow ) and subtle personal bias.
    C R T.
    Critical Race Theory
    A study on how racism both overt and covert have functioned in the U S
    C R T
    Is the C S I (Crime Scenc Investigation)
    of Racism in the U S.

    Those that object are using weasel words
    and misdirection of issues to not directly
    address the the subtlety of Racism.

  4. Cory Allen Heidelberger Post author | 2022-11-29 06:22

    O, yes, the state bar and the Supreme Court operate with formal independence from the Governor. The education standards are subject to Executive Branch control. It would be harder for Noem to disband this study committee and impose her own CRT-bashing agenda on their work.

    But boy, she could raise a fuss. After all, the above examples from the organizations supporting this study of our bar admission procedures far more explicitly invoke tenets of critical race theory than anything Noem has pointed to in our education standards.

  5. P. Aitch 2022-11-29 06:42

    There’s zero doubt that people of color deal with unfair, imbedded discrimination in the courts. This discrimination is as real as the white privilege that underlies it.

  6. MJ 2022-11-29 11:26

    It’s the high failure rate of the bar exam that is responsible for the formation of this committee. The bar exam was changed in 2015 and since that time the bar passage rate (averaged) is around 66 percent. The ABA calculates the bar passage rate differently so USD won’t lose its accreditation. It’s a serious problem and those in charge are reluctant to admit they made a mistake. Taxpayers are footing the bill to educate lawyers that leave the state following graduation and get licensed elsewhere. South Dakota is the only state in the nation that grades their bar exam (non compensatory vs compensatory) this way. Look for another bill this January. I’ve heard too many sad stories and will lead the fight again in the legislature to get the bar exam grading changed. Why we are the only state in the nation that continues to do this is unimaginable and cruel. Let’s stop the exiting of our most educated youth from leaving our state.

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