USD Law Dean Neil Fulton’s (paywalled) essay in The Dakota Scout defending the bar exam has stirred some disagreement from a few of his graduates. 2017 USD Law graduate Jun Byung Park, who can’t practice in South Dakota because he hasn’t passed the multiple-guess portion of the bar exam, says the bar exam is unfair and calls on Dean Fulton to expand his rather limited vision of alternative methods of licensing lawyers.
First, no one has suggested that the “determination of competency” be eliminated. All factions agree that a “determination of competency” should be made by the licensing authority.
Second, South Dakota’s current determination of competency includes an eight hour testing period of 200 multiple choice questions in a time-constricted setting — a method which has been proven flawed because it systematically discriminates against slow readers, test takers who suffer disabilities and test takers who come from culturally diverse backgrounds.
Third, Fulton’s viewpoint argues that the elimination of the current method will result in adverse portability consequences. Nonsense. Portability can be maintained through the maintenance of the current method, supplemented by a parallel pathway to licensure. For example, in Wisconsin the law graduates may obtain licensure through the NCBE testing and thereby retain portability, BUT applicants may also obtain licensure through a curriculum-based option which insures competency. Wisconsin permits both.
Fourth, although Fulton brags about portability, the fact remains that South Dakota is one of the least portable jurisdictions in the United States. South Dakota refuses to join the Uniform Bar Exam network which permits portability to other UBE jurisdictions. Currently 41 jurisdictions have adopted the UBE. But, not South Dakota.
The greatest irony of Fulton’s viewpoint is that he argues in favor of a system that has already been recognized nationally as flawed. Even the NCBE, recognizing the flaws in persisting in the utilization of 200 multiple choice questions administered in timed setting, is charting a course for alternatives [Jeffery Holt, op-ed, received by Dakota Free Press 2023.08.23].