SCOTUS Expected to Restrict Affirmative Action, But Your Bar Preparation May Not Be Affected
Sometime during the upcoming week, the United States Supreme Court will release its highly anticipated decisions that will tightly restrict or ban race-based affirmative action in college admissions in two cases, Students for Fair Admissions, Inc. (SFAI) v. President and Fellows of Harvard and SFAI v. University of North Carolina.
These lawsuits contend that the consideration of race as an affirmative action measure in admissions at Harvard and at UNC constitutes racial discrimination in violation of the Equal Protection Clause. To that end, the Supreme Court is being asked to overrule Grutter v. Bollinger and hold that post-secondary educational institutions (e.g., public colleges and universities) cannot use race as a factor in admissions.
(Under current constitutional jurisprudence, courts should defer to a public university’s judgments that diversity is itself a compelling interest in post-secondary education. As a result, SCOTUS has held that race and ethnicity could be used as one among many different factors in determining whether a particular student should be admitted.)
The SCOTUS decisions could come as soon as tomorrow or as late as Friday, June 30, before the justices leave for their summer break.
Regardless of the outcomes of these two cases, however, you do not need to learn the new opinions for the July 2023 bar exam—at least for the Uniform Bar Exam, or its individual components, like the MBE or MEE.
The National Conference of Bar Examiners released the following announcement earlier this year regarding the recent United States Supreme Court decisions:
NCBE Statement on SCOTUS Decisions and the Bar Exam
NCBE has released the following statement regarding the timeline by which new US Supreme Court decisions might be reflected on the bar exam: NCBE-developed MBE, MPT, and MEE questions typically are drafted, revised, and finalized over an approximately three-year period, including pre-testing of MBE items on a live exam prior to administration as scored items. For more information, see:
This announcement isn’t as strongly worded as its announcement prior to the July 2022 administration, in which it clearly and succinctly stated that “Examinees taking the NCBE-developed July 2022 MBE, MPT, and MEE will not be required to be familiar with this term's US Supreme Court decisions. (That announcement was made almost exactly one year ago today in response to the Court's release of its Dobbs v. Jackson Women’s Health Organization.)
However, the announcement reiterates that the timeline to develop a final, scoreable question on the MBE prevents any recent SCOTUS decisions to appear on the July 2023 bar exam except as unscored, “pretest” questions.
Again, the NCBE announcement only applies to NCBE-written examinations, which includes the MBE, the MEE, and the MPT. Examinees preparing for state-authored exam questions or sitting in a non-UBE jurisdiction should contact the testing jurisdiction for further guidance. For example, in California, bar applicants are expected to know the law in effect at the time the California Bar Examination is administered (i.e., current law). Therefore, any judicial decision, statute, rule, or regulation that is in effect in July 2023 will be "current law" for the July 2023 California Bar Examination.
As a reminder, though, the two major areas impacted (so far) by recent SCOTUS decisions are in the areas of abortion and religion (specifically, the Establishment Clause’s Lemon Test). Affirmative action will likely be a third major area after this week.
