Bar Bulletin

Bar Bulletin

A Broken System

September 2020 Bar Bulletin

By Veasna Hoy

I was sitting on my couch watching the news, months into the stay-at-home order, when the image of George Floyd filled my screen: a Black man laying on the cement, gasping for air, while a white police officer, pressed his knee on his neck. In that instant, I reached for the remote because my 3-year old daughter was standing in front of me. After fumbling for the remote, I quickly turned the channel but it was not before my daughter caught a glimpse of the screen and immediately turned her body toward me. It was only a few seconds, but I will never forget the look on her face. In her young mind, she knew what she saw was wrong. I will never forget the look of pain in George Floyd’s eyes as he pleaded for his life or the grim expression on the officer’s face above him, which showed a complete disregard for this human being as if the result of his conduct would equate to no significant consequences, either to George Floyd’s family or to himself.

Too often we talk about how the criminal justice system is broken. We have come to a general consensus that the system is broken because of the racial disproportionality among Black, Indigenous, and People of Color (BIPOC)1 who enter into the system and who are, in turn, disproportionately treated with fairness by actors within the system. It is broken because BIPOC are more likely to be sentenced longer than similarly situated white defendants. It is broken because BIPOC have less economic means to advocate for their rights and end up getting swallowed up in the expeditious machinery of criminal court, solidifying their future and the future of their family members as irrevocably damaged.

The solution has been offered to provide training on trauma-informed care and implicit racial bias in an effort to better serve clients and address racial disparities, but we have seen in the past that that is not enough. Disproportionate minority contact and excessive use of force by police officers continue to plague communities of color and exacerbates in our stores, parks and neighborhoods, through the lens among many that BIPOC are inherently more suspect.

Access to Justice

Although I have always had a passion for law, I almost never became an attorney. Not a strong standardized test-taker but articulate, experienced, and poised for rigorous studying, I was the first in my family to enroll in college, earn a master’s degree, and later in my career track, a law degree. I had a baby my third year in law school but still graduated on-time and proudly walked the graduation stage with my daughter in tow.

While I believe I was just as ready as my fellow graduates to practice law, it took me several years to pass the bar exam, nearly the same amount of time it took me to attend law school. With each attempt, my scores indicated a proficiency in areas of law which I devoted laser-focused studying to, but would fall short by a small margin of an overall passing score.

During this time, I felt like I was the weight holding back my family from moving forward, and I felt heavy guilt every time I had to put them through this painful cycle. While I spent most of my professional career working towards equity and social justice initiatives for communities of color in education, government, and non-profit sectors, I never considered the bar exam an impediment toward racial justice or a barrier to fairness within the court system. I, like many other first-generation law students, believed that the bar exam was a necessary and traditionally honored rite of passage into the legal profession.

I no longer hold onto to the tenant that, upon earning a law degree, solely passing the bar determines whether a person is competent and prepared for the practice of law. I write this because on my second to last attempt I scored a 169.3 on the exam, which is .7 of a point away from a passing score. I could have painfully walked away like many other law degree holders, many of whom who are from communities of color, or from disadvantaged backgrounds, who were not afforded an upbringing with households made up of parents who were doctors and lawyers, or supported with tutors, early-learning enrichment activities, and resource-rich schools to help prepare them for standardized testing. Despite these factors, these law degree holders are fiercely intelligent, agile in their thinking and effective communicators. They hold important high-level positions as executive directors, mediators, and policy makers, advocating for the rights of the most underserved in our communities. Their skill and competency, as well as their lived experiences, are needed in the legal profession, both as counsel and as judicial officers, and is much lacking in our courtrooms.

On my final attempt at the bar exam this past February, I earned a score high enough to practice law in every state that administered the UBE. At the time I took the exam, I also had considerably less stressors, from juggling work and childcare to struggling with financial stability and supporting family members through difficult times. These stressful variables, including the tremendous costs of taking the bar exam, could have easily deterred me from continuing my path to becoming an attorney. I also had an amazing study partner who recently passed the bar and who was also a mom of a young toddler.

As our nation discusses access to justice during this time of racial unrest due to senseless killings, a time in which a global pandemic has viscerally uncovered racial disparities in public health, employment and education, and a time which has resulted in a movement for structural change, we must acknowledge that access to justice should not only be for indigent clients to obtain quality legal representation, but for law graduates of color, capable of being excellent practitioners, to enter the legal profession.

A Bold Transformation

The notion of standardized testing as a determinant factor of academic success is now being questioned by many reputable educational institutions. Most recently, Pacific Lutheran University has removed the SAT and ACT requirement from their admission application. Other colleges and universities in Washington are moving towards test-optional admission policies in an effort to address fairness and concerns of bias in testing. This is a growing national trend, with the University of Chicago no longer requiring standardized test scores, and California state colleges following suit.

In a letter to the WA State Supreme Court requesting a diploma privilege for recent law graduates, Dean Annette Clark of Seattle University, School of Law, wrote, “The burdens of the coronavirus and the racial unrest we are experiencing are disproportionately borne by graduates of color as they struggle to prepare for the bar exam. Removing the exam barrier to admission would be a step in responding to our graduates’ concerns and in bringing “greater justice to our system as a whole.”” Her letter concludes with a recommendation to establish a study group to evaluate whether the bar examination is the best way to determine admission given existing factors of disproportionality and studies that suggest bias in testing.

This call for equitable principles resonates with me and with others from marginalized communities who are often excluded, diverted, or structurally disqualified from pathways of upward mobility, so much that one could argue, the system is working as it was originally intended.

Procedural justice begins with a bold transformation toward creating a legal infrastructure that promotes fairness for all people, especially those who are disadvantaged. The Supreme Court’s decision to award diploma privilege to recent law graduates is a profound catalyst toward racial justice as newly licensed attorneys from historically underrepresented backgrounds will enter the innerworkings of the court and criminal justice system, and upon making their first contact with clients, will speak from a language of affirmation and compassion.

The time is now to consider awarding a diploma privilege for all law graduates, especially graduates of color, because the legal profession, as it stands, is not designed nor equipped to fix our broken system or deliver the quality of legal representation to those who need it most. 

Veasna Hoy is a mother of a tenacious 3-year old, and develops programs and initiatives that promote diversity, equity and inclusion in workforce development. She is a former Commissioner for the City of Seattle, Office of Immigrant and Refugee Affairs and has spent her career maximizing collaborative strategies and reciprocal stakeholder partnerships to achieve racial, economic and environmental justice. She plans to start her own law firm in September focused in areas of tax, business and civil litigation. She can be reached at veasna@hzlawpllc.com or 206-948-9492.

1 The term BIPOC is used to recognize that Black and Indigenous people are severely impacted by systemic racial injustices.

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