Most states have a re-grade (if close to passing) policy, but no post-exam appeal policy (NCBE strongly endorses this method). For example, according to the NY Board of Law Examiners (NY BOLE), “A candidate’s final examination score is determined by combining the written and MBE scores. A combined score of at least 266 on a 400 point scale is required to pass the New York bar examination. The MEE and MPT answers of each candidate who received a total score of 262 to 265 following the initial grading of all examinations are automatically reread and regraded by graders other than the initial graders prior to the release of final results in accordance with the Board’s regrading policy set forth in Board Rule 6000.11. The candidate’s scores were then recomputed to arrive at a final score examination score. THERE IS NO APPEAL OR FURTHER REVIEW OF THIS FINAL SCORE.”
I often have examinees come to me asking about appeals or re-grades, but I have never heard of an examinee being successful through a request for an appeal or re-grade. This is even when examinees have very meritorius claims. Thus, whenever a failing examinee asks me whether they should seek to individually appeal their scores, I tell them that their time is better spent studying for the exam. Put simply, no matter what the reason is, an appeal will fail. Allow me to explain using some past cases as examples:
First, if you try to get the Board of Law Examiners to explain how they graded the exam and came up with the bad score, you will be unsuccessful. This is because the Board of Law Examiners is generally treated as part of the judiciary and is exempt from Freedom of Information Law (FOIL) requests. See Pasik v. State Bd. of Law Examiners, 102 A.D.2d 395, 478 N.Y.S.2d 270 (lst Dep’t 1984),
Next, if you try to argue that written component is arbitrary and unreliable (and of course without any hard data because the Board of Law Examiners is exempt from FOIL), this has already been argued unsuccessfully. For example, in a 1990 lawsuit against NY BOLE by a failing examinee, the examinee alleged that he answered a portion of an essay question correctly by observing a facet of law that a substantial majority of the other examinees failed to correctly identify or analyze. Because so few of the candidates analyzed this issue, NY BOLE decided that the alternate analysis (albeit correct) should be disregarded in the determination of any of the candidates’ scores. The examinee argued that the essay grading was arbitrary and unreliable and if he had received credit for the correct answer that he gave, he would have passed the exam. The court ruled in favor of NY BOLE and found that great discretion should be accorded to the administrative agency responsible for the administration of the New York State Bar examination with respect to their grading of examinations. See Duffy v. State Bd. of Law Examiners, 159 A.D.2d 542 (1990)
In another case, an examinee failed by 4 points. The examinee’s essay answers were automatically regraded because her preliminary score was within 10 points of passing. The initial essay answer scores and the regraded scores were averaged, again producing a failing grade. After filing an action in Supreme Court, the Court found that the examinee’s answers to the essay questions were “remarkably similar” to the sample answers provided by NY BOLE and ordered NY BOLE to conduct a further review of petitioner’s answers. NY BOLE appealed and the appellate court found that there was a rational basis for the Board’s determination of the examinee’s grade. see Krutell v. New York State Bd. of Law Examiners, 21 A.D.3d 674, 799 N.Y.S.2d 680 (2005)
Finally, appeals are such a long drawn-out process (perhaps by design) that examinees will likely re-take the exam and become admitted to the bar before any litigation is decided on its merits, rendering the controversy moot. see Finkelstein v. State Bd. of Law Examiners, 241 A.D.2d 728, 660 N.Y.S.2d 95 (3rd Dep’t 1997)
So no matter what the reason, appeals are always denied. For example, in Virginia, a failing examinee unsuccessfully sought his essays, even though he experienced system software malfunctions by the Board’s own testing software. The examinee recently tried to take his case to the Supreme Court of the United States and lost:
In California, a Maryland lawyer who sued the State Bar of California over its exam grading review procedures was rebuked (see http://www.metnews.com/articles/2010/jose091610.htm).
Bottom line, the likelihood of a successful appeal is probably zero. Essentially, your only recourse is to re-take the exam. While I hate to say it, a failing examinee is better off putting his or her time and money into re-taking the exam as opposed to challenging it. For example, I have personally seen very well-connected examinees fail in their efforts for re-grades or appeals. Thirty years ago, things were different (e.g. there was an appeals process even in New York). Interestingly, bar examiners did away with appeals because they claimed that the well-connected monied candidates could afford and succeed in appeals while poorer candidates were shut-out. While this is partly true, I feel that bar examiners have done away with appeals for a more pragmatic reason – as the number of candidates has increased, it has become impossible to offer some type of individualized process of review. I believe the courts recognize this (much in the same way as I begrudgingly recognize this), which is why the courts grant such great deference to the decisions of bar examiners (although having already passed the exam may certainly play a role). Put simply, letting any appeal succeed (no matter how meritorious) creates a precedent that will open up the floodgates of appeals. Most Boards of Law Examiners are comprised of practicing attorneys who serve on the Board part-time – there is no way any Board could handle such a volume of appeals if a precedent was set. For example, I am aware of an examinee with a final score of 664 on the pre-UBE exam (where 665 was passing) who had a very strong basis for appeal due to a scrivener’s error contained in an essay question where a party was misidentified, but this examinee was unsuccessful after petitioning the board (and spending a tremendous amount of time doing it). During this appeal, the examinee was told by NY BOLE’s Executive that the board has never changed a test score in the 15 years he had been there. To grant a single appeal would open up Pandora’s box with that appeal becoming precedent for other appeals. The cost in time and money to deal with this is simply too much.
In regards to the MBE, some jurisdictions permit examinees to request a hand-score of their MBE. For example, the state of Nevada permits this:
If you erased any choices on your MBE scantron, there is a possibility that a mis-bubbled mistake may have been made by the scantron reader. In my opinion, this is really an examinee’s only possible recourse for appeal.