Mississippi College

Law Review

Check Your Privilege at the Bar: How the New York Bar Exam’s Discrimination Against Out-of-State Test Takers Violates the Privileges and Immunities Clause of the 14th Amendment

Written By: Melanie Mitchell

One final hurdle awaits law school graduates after obtaining their degree before beginning a career in the legal field: passing the bar. The anxiety law students often experience while studying for the exam had only just begun for graduates in 2020 after an international pandemic shut down bar exam testing centers and caused several states to postpone their exams. New York, hit particularly hard by the novel Coronavirus, attempted to be proactive about administering the exam by asking in-state law schools to host the test to meet social distancing guidelines. However, seating was still limited and, on April 30, 2020, the New York State Board of Bar Examiners posted a message on its website explaining that it would receive applications solely from law school graduates from in-state law schools from May 5 through May 15. If seats remained open after that period, then applications would be accepted from out-of-state graduates. In response, 21 law school deans wrote letters expressing their displeasure with the policy to New York’s Chief Judge. They argued that other measures could be taken to allow students to safely take the bar exam, such as permitting out-of-state administration of the exam or by providing a second September test date.

Constitutional Background

The advantage given to in-state graduates raises constitutional issues under the Dormant Commerce Clause and the Privileges and Immunities Clause of both Article IV and the 14th Amendment. It is important to note first that a Bar Association, acting in its regulatory capacity to further state interests, is a state actor and is thus subject to these constitutional provisions. Bates v. State Bar of Arizona, 433 U.S. 350 (1977).

The Dormant Commerce Clause

According to Gibbons v. Ogden, 22 U.S. 1 (1824), “A fundamental principal of the Constitution is that Congress has the power to preempt state law” under Article VI. Using Article VI, the Supreme Court has invoked the Dormant Commerce Clause to invalidate legislation that is “incompatible with national interests” even when Congress has not exercised its power. According to Wyoming v. Oklahoma, 502 U.S. 437 (1992), the Dormant Commerce Clause generally forbids states from favoring in-state actors over out-of-state competitors. When a statute clearly discriminates against interstate commerce, it will be struck down unless the discrimination is “justified by a valid factor unrelated to economic protectionism.” However, if discrimination is only “incidental,” the Court will balance the local and economic interests at stake. In Dean Milk Co. v. Madison, 340 U.S. 349 (1951), the Court addressed an ordinance that prohibited the sale of milk not processed at approved plants within 5 miles of a town’s square. The Court held that the ordinance was unreasonable because alternatives were available to make sure that imported milk met the town’s inspection standards. In a later case, Philadelphia v. New Jersey, 437 U.S. 617 (1978), the Court explained that certain quarantine laws were not forbidden protectionist measures even though they were directed at out-of-state commerce, such as laws banning the importation of diseased livestock. One could argue that the Board’s policy is facially discriminatory, rather than incidental, like the ordinance in Dean Milk and that New York’s protectionist measure is unreasonable because alternate measures could have been taken to protect the health and safety of test-takers. However, one cannot ignore the fact that the Supreme Court has held that protectionist measures, such as quarantine laws, are within a state’s purview and that New York’s policy might fall within such an exception.  Thus, this conflict is more like Philadelphia than Dean Milk because the Board’s policy resembles quarantine laws which are often considered permissible protectionist measures under the Dormant Commerce Clause.

Privileges and Immunities under Article IV

Both Article IV and the 14th Amendment contain a Privileges and Immunities Clause. Under Article IV, “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” The 14th Amendment states, “No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States.”

The Court in the Slaughter-House Cases, 83 U.S. 36 (1873) addressed the Privileges and Immunities Clause in both Article IV of the Constitution and the 14th Amendment in examining whether citizens have a protected interest to pursue their livelihood despite state laws preventing them from doing so. The Court stated that the purpose of the Article IV Clause was to declare that whatever rights one state grants to its own citizens, it shall grant the same to citizens of other states. The Court held that the 14th Amendment Clause was not intended to protect a citizen of a state against the police power of his own state, but instead protects the Privileges and Immunities of a citizen of the United States. (emphasis added). Thus, the Court held that the right to pursue one’s career was not a right protected under the 14th Amendment and instead should be “left to the state governments,” not the federal government.  

In United Bldg. & Constr. Council v. Mayor of Camden,465 U.S. 208 (1984), the Court examined a municipal ordinance in Camden, New Jersey which required that 40% of city construction workers be from Camden, under Article IV. Notably, the Court only addressed whether the ordinance violated the Privileges and Immunities of out-of-state citizens because, under Slaughter-House, New Jersey citizens would have to “remedy at the polls any discrimination against them.” The Court then embarked on a two-step inquiry to determine if (1) the out-of-state citizen’s interest was fundamental and (2) whether the state had a substantial reason for treating out-of-state citizens differently. While the Court noted that there is no fundamental right to a job under Equal Protection, it stated that the pursuit of employment “is one of the most fundamental” privileges under Article IV. As to the second inquiry, the Court remanded the case but insinuated that the state might have a substantial reason because the ordinance was substantially limited in scope.

One could argue that out-of-state students have a fundamental right to pursue their legal careers in New York, like the out-of-state workers in United. The Board’s policy is broader than the ordinance in United because it precluded all out-of-state students from applying to the bar during a 10-day period, rather than allow in-state students to receive a specific percentage of the available seats. The result could have been that 100% of the seats were filled by in-state students. This means out-of-state students might not have ever had the chance to apply. However, the United decision under Article IV might not account for the fact that some out-of-state law students might be in-state residents of New York who could not raise a claim under Slaughter-House even though they too faced prejudice under the policy. Therefore, the Privileges and Immunities Clause of the 14th Amendment provides the best constitutional remedy.

Privileges and Immunities under the 14th Amendment

In Saenz v. Roe, 526 U.S. 489 (1999), the Court addressed the 14th Amendment’s Privileges and Immunities Clause, holding that a California statute that limited welfare benefits for new citizens was unconstitutional. The Court explained that the “Right to Travel” protects the right to enter and leave a state and to be treated as citizens of a state when travelers elect to become permanent residents. The Court stated, “that right is protected not only by the new arrival’s status as a state citizen, but also by her status as a citizen of the United States.” Using strict scrutiny to determine whether the statute was narrowly tailored to a compelling government interest, the Court found that the need for welfare benefits was unrelated to the amount of time a citizen spends in California. This was distinguishable from other “readily portable benefits” such as a divorce or a college education, for which a state might have a compelling interest in placing limitations on new residents. The Court also explained that the state’s justification in saving money was not narrowly tailored because other means could be used to achieve the same result.

Saenz is different from both Slaughter-House and United because it concerns a right protected by one’s status as a United States Citizen, rather than a state right. Similarly, the right to travel to a state and sit for the bar is not necessarily in pursuit of a job, like in Slaughter-House and United, but instead concerns the right to enter and leave the state which may result in out-of-state students becoming permanent residents after they pass the bar. Students who are residents of New York but left the state to attend college would not be excluded, like the in-state workers in United, but would be able to bring suit as well, much like the in-state citizens in Saenz.

Moreover, the state does not have a compelling interest in placing these limitations on out-of-state test takers because traveling into New York to take the bar is different than traveling into a state to get a divorce since someone who comes to New York to take the bar likely intends to become a state resident, if they are not one already, and practice law in the state. Furthermore, the policy of excluding applicants is not narrowly tailored, similar to the statute in Saenz, because New York can protect the health and safety of all test-takers without giving in-state students special privileges, as the deans who wrote to the Board explained in their joint letter.  

Conclusion

In sum, those in the legal profession should not stand for such discrimination against students based simply on where one chooses to study law. Favoring local schools prevents similarly situated students across the country from gaining prompt entrance into the profession and any delay can be damaging to one’s career. The Board’s policy is a clear violation of the Right to Travel found within the Privileges and Immunities Clause of the 14th Amendment.