Jewish Law Logo Jewish Law - Commentary/Opinion
The July 2004 Bar Examination and Tisha B'Av
Baruch C. Cohen, Esq.

The July 2004 Bar Examination and Tisha B'Av

Baruch C. Cohen, Esq.

[Ed.'s Note:  The following traces the (ultimately) successful effort initiated by an Orthodox attorney, Baruch Cohen, whereby California accommodated the requests of observant Jews to reschedule the Bar Exam when its originally scheduled date in 2004 fell on Tisha B'Av.   While not strictly a "Commentary" or "Opinion" piece, JLaw.com is proud to post this document for its "historical" and precedential values, especially to the extent that it becomes necessary to rely upon it should a similar situation ever arise in the future.]  


 
1. September 10, 2003: Letter from Baruch Cohen to CA State Bar re Tisha Bav
 
Law Office of
Baruch C. Cohen, Esq.
A Professional Law Corporation
4929 Wilshire Boulevard, Suite 940 Telephone: (323) 937-4501
Los Angeles, California 90010-3823 Facsimile: (323) 937-4503
 
September 10, 2003
 
Office of Admissions
The State Bar of California
1149 S. Hill Street
Los Angeles, CA 90015-2299
 
Office of Admissions
The State Bar of California
180 Howard Street
San Francisco, CA 94105-1639
 
Dear Office of Admissions:
 
It has come to my attention that the July 2004 Bar Examination is scheduled for July 27th, 28th, and the 29th, 2004. Please be advised that July 27, 2004 COINCIDES WITH  TISHA B'AV, THE JEWISH DAY OF FASTING. By this letter, as a member of the State Bar and as an observant Jew, I request that the Office of Admissions take appropriate steps to accommodate the religious sensitivities of Jewish bar applicants by rescheduling the bar exam.
 
Please understand my intentions in writing to you. I am not writing you for selfish reasons. I will not be taking the July 2004 bar examination, as I am already admitted to practice before all California state courts, the United States Court of Appeals Ninth Judicial Circuit, the Bankruptcy Appellate Panel, the United States District Courts for the Central, Eastern, Northern and Southern Districts of California. But I care about the welfare of the many Jews who will be taking that test, to write you in advance to sensitize your office about the serious scheduling conflict to see what can be done.
 
So that you truly understand and appreciate the scope and enormity of the day; Tisha B'Av is an historic day of tragedy and sadness, a day bathed in tears since the earliest days of Jewish national history. It is a day of Jewish travail, a day of national Jewish mourning for all the tragedies of our long history. Since Jewish tragedies occurred on Tisha B'Av, Maimonides explained that our Rabbis decreed this day as a fast day. The restrictions of Tisha B'Av are more severe than the other fast days ordained by the Rabbis. On Tisha B'Av it is prohibited to eat, drink, bathe or wash, anoint oneself, cohabit, wear shoes, listen to music or learn Torah. On Tisha B'Av we Jews are considered as mourners for the destruction of the holy Temple, therefore we conduct ourselves similar to a mourner during Shiva.
 
The California Bar Examination is challenging enough as is. It is hard to imagine what it must be like to take the grueling exam -- while fasting and not showering since the night before. On July 2004, a Jewish applicant taking the bar examination will have the added distractions of hunger, discomfort and mourning to detract from his/her performance. There must be a way to accommodate the religious sensitivities of the Jewish bar applicants. Perhaps a special administration can be offered for any Jewish applicant?
 
If you have any questions or comments regarding the above, please do not hesitate to call.
 
Respectfully,
BARUCH C. COHEN
C:\WP51\DOCS\LETTERS\ADMISSIONS-STATE-BAR-CA-02.LTR.wpd
9/10-5:04pm
 
2. September 10, 2004: Los Angeles Daily Journal Article: “Bar Exam's Conflict With Jewish Holiday Stirs Debate”
 
September 10, 2003
BAR EXAM'S CONFLICT WITH JEWISH HOLIDAY STIRS DEBATE
Bar Exam Conflicts With Jewish Holiday
By Katherine Gaidos
Daily Journal Staff Writer
 
LOS ANGELES - A quiet dispute is growing in many states, including California, over a July 2004 Bar Examination date, which falls on the same day as a Jewish holiday.
 
The grueling test, which lasts for three days in California and two days in other states, is always set to coordinate with the national multistate Bar Examination, given on the last Wednesday in July.
 
Next year, many states will begin their tests the day before the multistate exam, or July 27, which also happens to be Tisha B'Av, the Jewish day of mourning.
 
Tisha B'Av is not a Sabbath day, and under Jewish law, observers may do work or take a test.
 
But the holiday requires observant Jews to fast and abstain from many activities. "Tisha B'Av is the saddest day of the Jewish year," said Rabbi Abraham Cooper, associate dean of the Simon Wiesenthal Center.
 
Orthodox Jews observe the date, and Conservative Jews may, as well, said USC religion professor Rabbi Susan Laemmle. “I suspect that [the bar] will get a lot of hassle for it," Laemmle said of the July 27 test date.
 
Cooper said observant Jews will be handicapped. "If you're asking me whether or not the people who are fasting that day will be at a disadvantage, the answer is yes," Cooper said. "If there's something ... that can be done, that would be terrific."
 
States are reluctant to move the test date because of the difficulty coordinating across multiple jurisdictions. And some bar officials have begun renting hotel and auditorium exam sites and sending out notices. "There are a lot of things to consider, when you're talking about moving the Bar Exam," said California Bar spokesman E.J. Bernacki.  Bernacki noted that the State Bar had entered into contracts for July 2004 exam space. Another California Bar official described rescheduling the bar's 19 exam spaces across the state as a "logistical nightmare." Even allowing only affected students to take the test on a different day raises "issues of confidentiality" with respect to the exam questions, another Bar Exam official said.
 
The test also is administered across the country in February, but students have a higher chance of success if they take the exam while their law-school education is fresh in their minds. Taking the test in February also would delay law graduates' admission to the bar and could hurt job prospects.
 
Los Angeles attorney Baruch C. Cohen brought the conflict to the State Bar's attention in a letter mailed Aug. 25. Cohen asked that the bar reschedule the three-day exam, which every aspiring lawyer must pass before being admitted to the California Bar. "I'm really hoping the State Bar does something about it," said Cohen, who learned of the conflict from students he tutors for the test. "It's depressing and debilitating to walk into an exam of this magnitude knowing that you're handicapped," Cohen said.
 
Bernacki said Cohen's letter probably would be put on the agenda for the state Committee of Bar Examiners' meeting, Sept. 19 and 20.
 
Other states also are debating whether to change the exam date or allow special accommodations for affected test takers. In New York, State Assemblyman Ryan Scott Karben has asked the board to change the test date. Law schools and individuals brought the conflict to the board's attention, according to John McAlary, New York State Board of Law Examiners deputy executive director.  "[The board has] made a request to applicants who will be affected by it to contact our board, so we can get a handle of approximately how many people will be affected by it," McAlary said.  He added that the board plans to have a decision later this fall.  Florida's bar examiners also are deciding how to handle the conflict, said Florida Supreme Court spokesman Craig Waters. The state's high court will have to approve any changes.Other states are taking a less-formal approach.Ohio court spokesman Dennis Whalen said the state had not received any complaints and had no plans to address the conflict. Kansas court spokesman Ron Keefover also said the state's bar examiners have not received a complaint about the Tisha B'Av bar day. But Keefover said that any test taker who observes the holiday would be allowed to take the July 27 portion of the test, which is the section on Kansas law, on a different day.
 
Tisha B'Av is a day of mourning for many tragedies in Jewish history, including the destruction of the first and second temples. Other calamities have befallen Jews on Tisha B'Av, including the expulsion from Spain in 1492. Cooper said some Jews also remember Holocaust victims on Tisha B'Av.
 
Cohen said that Jews have marked the date as a day of mourning for 2,500 years. And while Tisha B'Av is observed primarily by Orthodox and Conservative Jews, Cohen said he thought other Jews are aware of the date, as well. Jewish groups may mark the date by making sure celebrations are not scheduled for the same period, he said. "Observant or nonobservant, there is a communal awareness and respect for the import of the day," Cohen said.
 
Cooper said that the Wiesenthal Center had been unaware of the conflict with the Bar Exam and that the center has not contacted the State Bar. But, Cooper said, "I imagine that some of the rabbinic congregational groups will be in touch with the bar."
 
3. September 16, 2004: Letter from Baruch Cohen to CA State Bar re Tisha Bav
 
Law Office of
Baruch C. Cohen, Esq.
A Professional Law Corporation
4929 Wilshire Boulevard, Suite 940 Telephone: (323) 937-4501
Los Angeles, California 90010-3823 Facsimile: (323) 937-4503
 
September 16, 2003
 
Office of Admissions
The State Bar of California
1149 S. Hill Street
Los Angeles, CA 90015-2299
 
Office of Admissions
The State Bar of California
180 Howard Street
San Francisco, CA 94105-1639
 
Dear Office of Admissions:
 
On August 6, 2003 the NY Board of Law Examiners issued the following notice:
The New York State bar examination is scheduled for July 27-28-29, 2004. The Board of Law Examiners has been made aware that July 27, 2004 is Tisha B'av, a holiday of mourning on the Jewish Calendar. It is a fast day for observant Jews during which they totally refrain from all food and drink. In trying to determine what accommodation, if any, can be made for those who would observe this fast day and also take the New York Bar examination, the Board must first determine the approximate number of applicants who would be affected.
 
Candidates who expect to request an accommodation in the exam schedule due to observance of this holiday are requested to notify the Board in writing by October 10, 2003. We have set up a special e-mail address to receive such notices, tishabav@nybarexam.org, or you may write to: New York State Board of Law Examiners, 1 Executive Centre Drive, Suite 202, Albany, NY 12203. The Board will then determine whether an accommodation is appropriate and feasible, and, if so, what accommodation will be granted to eligible candidates. The Board will also then determine what process and documentation will be required of candidates who wish to receive the accommodation.
 
If you have any questions or comments regarding the above, please do not hesitate to call.
 
Respectfully,
BARUCH C. COHEN
C:\WP51\DOCS\LETTERS\ADMISSIONS-STATE-BAR-CA-02.LTR.wpd
9/16-10:34am
 
4. November 6, 2003: From the ACLU
 
November 6, 2003
 
Anthony P. Capozzi, Esq., President
State Bar of California   
180 Howard Street    
San Francisco, CA  94105   
 
 RE: Bar Examination Dates and Religious Observance
 
Dear Mr. Capozzi:
 
 We are writing on behalf of the Progressive Jewish Alliance, the Muslim Public Affairs Council, and the Reverend Ed Bacon, Rector, All Saints Church in Pasadena, as well as the ACLU itself.  Mindful of the many complexities involved in the administration of the Attorney’s Examination, we urge the State Bar to make every effort to accommodate applicants whose religious observances coincide with the scheduled examination for 2004.  We further urge the State Bar to make every effort to work with other state and national bar examiners to avert such scheduling conflicts in the future.
 
 The coincidence of the 2004 exam and the Jewish day of mourning, Tisha B’Av, cannot help but adversely affect the opportunities of observant Jewish applicants to pursue their chosen profession -- a fundamental liberty protected by the due process and equal protection clauses of the Fourteenth Amendment.  Tisha B'Av is a major fast and day of mourning for observant Jews.  While Jews are not prohibited from working on Tisha B'Av, they are enjoined from engaging in
work or activities that will distract them from mourning.  Furthermore, observant Jews are required to fast during Tisha B'Av, a period of time beginning at approximately 8:00 p.m. on July 26, 2004 and continuing until approximately 8:40 p.m. the following day.  Observant Jews sitting for the Bar on July 27 would thus be required to violate the spirit of a major religious obligation, and would also be at a significant disadvantage to other, non-fasting examinees.  Because this issue implicates both the right to pursue one’s chosen profession and the Free Exercise clauses of the California Constitution, the ACLU-SC believes that the State Bar could face liability for a failure to make appropriate accommodations and to avert such conflicts in the future.
 
 In this regard, the State Bar may be guided by the various California Statutes which require state educational institutions to accommodate students’ religious observances in the administration of tests or examinations to the extent that such accommodation does not involve “undue hardship that could not reasonably be avoided”.  See CA Education Code §§ 76121,
 
 
 
 
 

89320, and 92640.  As a public corporation within the judicial branch of government, the State Bar must assiduously protect all citizens in the exercise of their fundamental rights.  Accordingly, we urge you to arrange for observant Jewish applicants to take the exam on a different day next year or to make a similarly effective accommodation.  Morever, with respect to future exams we urge you to make every effort to avoid these type of conflicts, and, if avoiding conflict is impossible, ensure that appropriate accommodations are available. 
 
 Thank you for your attention to this matter.
 
     Very Truly Yours,
     Gregory Luke
     Of Counsel
 
5. December 10, 2003: From the ACLU
 
December 10, 2003
 
Anthony P. Capozzi, Esq., President
State Bar of California   
180 Howard Street    
San Francisco, CA  94105   
 
BY FACSIMILE AND FIRST CLASS MAIL
 
 RE: Bar Examination Dates and Religious Observance
 
Dear Mr. Capozzi:
 
 I am writing today to follow up on our letter to you of November 6, 2003 on behalf of the Progressive Jewish Alliance, the Muslim Public Affairs Council, and the Reverend Ed Bacon, Rector, All Saints Church in Pasadena, as well as the ACLU itself.  As you will recall, in that letter we urged the State Bar to make every effort to accommodate applicants whose religious observances coincide with the scheduled examination for the summer of 2004.  Because you have not publicly announced your intention to accommodate such applicants, we remain deeply concerned that the State Bar has not taken sufficient steps to address this serious issue.  Staff at your San Francisco office currently inform applicants who inquire about a conflict with their religious observance to submit a letter to Ms. Gail Murphy, who will bring the applicant’s request to a “committee” for a case-by-case determination.  Individuals who have submitted such letters have contacted our office distressed that they have yet to receive a response.  Your staff confirms that you have released no official policy regarding accommodation.  The calbar.gov website only provides applications for the accommodation of physical disabilities. 
 
 By contrast, other jurisdictions have taken concrete steps to publicize and apply a uniform accommodation policy for religious observance.  The New York State Board of Law Examiners, for example, issued press releases on August 6th and October 20th of this year announcing their decision to allow observant Jews to sit for the New York State portion of the bar examination on an alternate day and instructing interested applicants how to apply for such an accommodation.  These press releases were sent to every accredited law school in the country and to other interested groups for posting.  As of October 20, 2003, the New York Board of Law Examiners had already received notice of an intention to seek religious observance accommodation from approximately 200 applicants, or 2% of the total number expected to sit for that exam.  Because this scheduling conflict appears likely to affect many applicants here in California (which has the second largest Jewish community in the country), it is inappropriate for the State Bar to address this problem in an ad hoc and secretive manner. 
 
 As we stressed in our prior correspondence, the coincidence of the 2004 exam and the Jewish day of mourning, Tisha B’Av, cannot help but adversely affect the opportunities of observant Jewish applicants to pursue their chosen profession -- a fundamental liberty protected by the due process and equal protection clauses of the Fourteenth Amendment.  Because this issue implicates both the right to pursue one’s chosen profession and the Free Exercise clauses of the California Constitution, the ACLU-SC believes that the State Bar could face liability for a failure to make appropriate accommodations.  Applicants need and deserve to know whether they will be able to take the examination next summer and what criteria is being applied to their requests for accommodation.  It is imperative that you implement a uniform, publicly available policy.
 
 As a public corporation within the judicial branch of government, the State Bar must protect all citizens in the exercise of their fundamental rights.  Accordingly, we again urge you to arrange for observant Jewish applicants to take the exam on a different day next year or to make a similarly effective accommodation. Further, we recommend that you announce your intentions publicly and bring some transparency to the process of seeking accommodation.  Please contact me at your earliest convenience to inform me of the policy you have chosen to adopt.
 
 Thank you for your attention to this matter.
 
     Very Truly Yours,
     Gregory Luke
     Of Counsel
 
6. January 12, 2004: From the ACLU
 
January 12, 2004
 
Gayle E. Murphy, Acting Senior Executive for Admissions
The Committee of Bar Examiners of the State Bar of California
180 Howard Street
San Francisco, CA  94105-1639
 
BY FACSIMILE AND FIRST CLASS MAIL
 
 RE: Bar Examination Dates and Religious Observance
 
Dear Ms. Murphy:
 
 Though we thank you for your letter of December 19, 2003, and Lee Wallach’s subsequent phone call, our clients remain concerned about the ambiguity and inadequacy of the State Bar’s response to the issues we raised in our prior correspondence.  In particular, we do not feel that you have articulated any justification for refusing to announce publicly your willingness to entertain requests for accommodation of applicants’ religious observance. 
 
 Your letter claims that “[a]pplicants who wish some sort of accommodation . . . are routinely advised that they may elect to file a petition with the Committee.”  This may be true with respect to applicants who inquire directly with your San Francisco office by telephone; but it is plainly incorrect with respect to that vast group of applicants who derive information about the Bar application process from your website and other official publications.  As we mentioned in our prior letter, the calbar.gov website, and the forms available therein, only provide applications for the accommodation of physical and mental disabilities.   To our knowledge, none of your published sources of information contains any reference to the availability of a process to request accommodation for conditions other than mental or physical disability.  Indeed, your published materials create the unambiguous impression that accommodations are only available to the mentally or physically disabled.
 
 For example, Rule XVII of the State Bar’s Rules Regulating Admission to Practice Law in California promises “reasonable testing accommodations” only for applicants with “functional limitations” related to a “disability”.  “Disability” is defined for the purposes of Rule XVII as “a physical or mental impairment” -- which terms are respectively defined as a “physiological disorder or condition or anatomical loss affecting one or more body systems” and a “mental or psychological disorder such as organic brain syndrome, emotional or mental illness, attention deficit/ hyperactivity disorder and specific learning disabilities.” Rule XVII, § 2.   Similarly, the Application for Admission and various Accommodation Request forms you provide exclusively refer to “mental and physical disabilities” as grounds for requesting testing accommodation.  Your instructions require applicants to provide evidence of their “diagnosis” by medical or therapeutic professionals when seeking accommodation.  Nowhere on any of the forms or other information you publish would an applicant find any mention of the possibility of seeking accommodation for religious observance.  
 
 While we appreciate Mr. Wallach’s assurance that all applicants who submit petitions for religious observance accommodation will receive a fair hearing, we remain concerned that the State Bar refuses to state this policy publicly and to provide any relevant petition forms.  We are sympathetic to the fiscal and organizational burdens that requests for accommodation impose upon your Committee; yet we believe that the State and Federal Constitutions require the Bar to protect all citizens equally in the exercise of their fundamental rights.  The Bar cannot fulfil this obligation by treating applicants with physical and mental disabilities differently from persons with religious observance conflicts – offering detailed instruction and information to the former while relegating the latter to anxiety and surmise.  Though you may have practical reasons to refrain from specifying the exact contours of the accommodation you intend to make for applicants with religious observance conflicts, such concerns do not justify a refusal to announce the possibility of accommodation in your published materials.  Nor does Mr. Wallach’s claim to have spoken with prominent members of the Jewish community somehow relieve the Committee of its responsibility to publish and implement an uniform policy.
 
 As previously noted, other jurisdictions have publicized their accommodation policy for religious observance.  The New York State Board of Law Examiners, for example, issued press releases this past fall announcing their religious observance accommodation policy and sent them to every accredited law school in the country and to other interested groups for posting.  Your claim that no one has filed a petition with your office requesting accommodation on account of Tisha B’Av only emphasizes the critical need to publish your policy of religious observance accommodation.  Given the size of the Jewish community in this state, and across the country, it is exceedingly unlikely that no observant Jews intend to take the July 2004 California Bar exam. 
 
 The State Bar cannot disclaim responsibility for having created this scheduling conflict.  While we recognize that the date of the Multistate Bar Examination (MBE) set by the National Conference of Bar Examiners influences the scheduling of the California State Bar Examination, it is not the MBE that poses the conflict with the Jewish Holiday Tisha B’Av; rather, it is the first day of the two-day California Bar Examination.  To our knowledge, nothing prevented the State Bar from scheduling its two-day exam to follow the MBE in 2004.  The fact that the State Bar may have contracted to provide for examination sites long before this conflict was brought to its attention has no bearing on its responsibility to make appropriate accommodations.
 
 Publication of your accommodation policy is a critical element of the application of that policy.   Because the process of seeking testing accommodations must be equally transparent to all applicants, regardless of their particular needs, we again urge you to announce your religious observance accommodation policy in your published materials.  Please contact me at your earliest convenience to inform me whether the Committee intends to implement an uniform policy towards applicants seeking testing accommodation.
 
 Thank you for your attention to this matter.
 
     Very Truly Yours,
     Gregory Luke
     Of Counsel
 
7. March 7, 2004: Letter from Roberta Zinman to State Bar
 
CERTIFIED MAIL-RETURN RECEIPT REQUESTED
 
State Bar of California
Board of Governors
180 Howard Street
San Francisco, CA 94105
 
ATTENTION: Anthony P. Capozzi, President and remaining Board of Governors
 
Dear Mr. Capozzi, Board Officers and Members:
 
 On October 26, 2003 I wrote you a three page letter, a copy of which was sent to Mr. Capozzi and the Board Officers by email and to all of you by certified mail which I am advised you did receive. To briefly remind you, the letter discussed the problem with the July 2004 Bar examination and the fact that the first day of the examination falls on the Jewish Holiday of Tisha B’Av, a day of fasting and contemplation.  I enclose a copy of this letter for your convenience.
 
 Having not received any formal or informal response to my letter, during the month of February, 2004, I made several calls to Mr. Capozzi and also spoke with one rather rude State Bar staff person about this important issue.  Mr. Capozzi advised me during our last call that he was on his way to San Francisco for a meeting where this issue would be discussed.  He promised to contact me thereafter.  He failed to do so.
 
 I do not know why I am being ignored. The affront to me personally aside and much more importantly, why is the ISSUE apparently being ignored?  In a time when anti-Semitism is on a frightening rise world-wide and in this country as well, I am astounded at the apparent lack of understanding for THIS minority.  I state again without ANY hesitation that if this were an issue of RACIAL inequality, perceived or otherwise, the State Bar would be doing everything possible to expeditiously resolve it.  Why not so with an issue which smacks of RELIGIOUS inequality, in particular, inequality against observant Jews, a minority within a minority? 
 
 Mr. Capozzi, in your article posted this month on the State Bar website and its magazine you stated:
 
 “We may have had a storied past, but today, we at the State Bar are committed to diversity as set out in the board of governors' strategic plan. It encourages individuals from all walks of life to seek and qualify for admission to the practice of law and remain in practice for as long as they may contribute to our profession and society. The plan, in concise and plain language, says what it means and means what it says.  America's great strength is found in the diversity of its people. One doesn't give up his or her culture to be an American. Each of our cultures is brought into a wonderful mosaic where each fragment is brought together in a harmony of many voices.”
 
Well, Mr. Capozzi, let us see if you and the State Bar mean to practice what you preach!  To paraphrase your own statement, Jewish students who practice their faith  shouldn’t be forced to give up their firmly held religious convictions in order to become part of this Bar Association.  I must point out that it is difficult to believe your words when, in addition to the Tisha B’Av issue, this year’s State Bar annual meeting, held on October 7-10, 2004 in Monterey, falls squarely during some very important Jewish Holidays--- Sukkos, Shemini Atzeres and Simchas Torah.  I doubt, no, I KNOW that the State Bar would NEVER have a major event that in any way interfered with the observance of a major Christian holiday such as Easter or Christmas.  
 
 May I remind you that the applications for the July 2004 examination are due in on April 1, 2004, just a few weeks from now.  As far as I can tell from my reading of the State Bar site, there has been NO posting on any section of the State Bar site which would advise Jewish students that they can seek an “accommodation” or what that accommodation will be regarding the Tisha B’Av issue.  The only form which is approved by the State Bar for one seeking an “accommodation” is based upon a “disability”.  Surely, a religious practice is NOT an disability!  Therefore, there is no approved form available on the website for these Jewish students to use to seek an accommodation, IF one is being offered and that is still not at all clear.  A Jewish student should not be forced to GUESS at how to present a request which the State Bar might entertain.  For example, is the student required to present a document from a rabbi?  Will his or her statement that his or her religious practice precludes test taking on that day be sufficient or must such a statement be made under penalty of perjury?  Without a formal accommodation form, such as those provided for the disabled, a Jewish student must GUESS as to the grounds and standards upon which the State Bar will grant or deny this accommodation.  This is blatantly unfair ASSUMING a request for accommodation can be made on religious grounds.
 
 Time is ticking critically away for these students.  Many of them, seeing NOTHING from the State Bar, may have decided that they had no choice but to wait until February, 2005 to take the Bar examination.  If that is true, even as to ONE student, you have failed that student and should be ashamed.  As I implored you in my October, 2003 letter, and as attorney Baruch C. Cohen implored you in his August, 2003 missive, this issue should have been addressed formally by the State Bar months ago and the students formally advised of the State Bar’s decision.  Your failure to act and act timely is disheartening, unprofessional and possibly anti-Semitic.
 
 If I do not hear back immediately from you and to my satisfaction, I will do what I believe I must do.  I do not think that the California State Bar, which prides itself on its “sensitivity” towards women, racial minorities and gay rights wants this kind of negative stigma.  What happens from this point forward, as has always been the case, is solely in your hands.
 
      Very truly yours,
      Roberta Scharlin Zinman #83804
 
8. March 22, 2004: Letter from Roberta Zinman to State Bar
 
CERTIFIED MAIL-RETURN RECEIPT REQUESTED
 
State Bar of California
180 Howard Street
San Francisco, CA 91405-1639
 
ATTENTION: Jerome Braun, Senior Executive, Admissions on behalf of the Board of Governors and the Committee of Bar Examiners
 
Dear Mr. Braun:
 
 I am in receipt of your letter dated March 16, 2004 sent to my office address.  You state that my two letters addressed to the State Bar of California Board of Governors “...have been referred to me for response as I am the Senior Executive with oversight responsibility for the admissions process, which includes the development, administration and grading of the California Bar Examination”.  I note that your listed duties did not include, as I assume they can not, responsibility for decisions regarding when and under what circumstances accommodations such as that discussed in my two letters may or should be granted.  That, I believe, is for the Board of Governors and/or the Committee of Bar Examiners, most of whom are appointed by the Board of Governors, to determine.  Therefore, I believe that you are not the proper person to respond to my letter.  However, since you are responding in their stead, I request that  you prepare copies of this letter and its multiple enclosures for each member of both the Board of Governors and the Committee of Bar Examiners in whose name and under whose authority you write.
 
 Let me begin by stating that I believe you and I have spoken on this subject at least once before your letter.  Before writing my three page October 26, 2003 letter, I called the State Bar to seek information about the issue of reasonable accommodation for Jewish law students who could not take the Bar on July 27, 2004 because of their observance of the Tisha B’av holyday.  I spoke with a staff member and received a response which I considered to be an unsympathetic and rude.  I do not recall if it was to you that I spoke or to another staff member.  I was told while I was correct that the State Bar had not posted anything on site about the issue of Tisha B’av or the possibility of seeking an accommodation, it was that staff person’s opinion that any student wishing an accommodation should contact the Bar to determine if any accommodation was being offered.  I suggested that the burden should not be placed upon the Jewish students but that, in fairness to such students, the State Bar should notify all students via the State Bar internet site and notification to at least the in-state law schools not only that such an accommodation could be sought but the specific grounds under which it would be granted.  I reminded the staff person that the State Bar had specific and strenuous requirements for a student seeking other accommodations, including forms which spelled out each and every element that the student must satisfy in applying for a particular accommodation. I suggested that a similar form be posted on the State Bar website along with the notification that such an accommodation was available.  My suggestions were summarily dismissed.  I then wrote my October 26, 2003 letter which made reference in passing to what I considered to be an offensive conversation.
 
 I heard nothing from anyone connected with the State Bar. I checked the State Bar site on a regular basis for months hoping to find some discussion on the subject.  There was nothing.  I spoke to law students at various local law schools to determine if the State Bar had sent anything to the law students on this issue.  They advised that they had seen nothing.  During the month of February, I made calls to the President of the Board of Governors, Anthony P. Capozzi and, although I was promised a response by him, none was forthcoming.  I called the State Bar and again spoke with a staff member.  I believe that this time I spoke with you as I have written your name on my notes of the conversation.  Whether or not it was you, the response I got was not much different from that which I got from the staff member in October, 2003.  These events  led to my three-page March 7, 2004 letter.
 
 Now to your response.  Your one page letter in response to my two letters, each three pages in length, begins with a paragraph about who your are in relation to the State Bar.  The second paragraph discusses the fact that the Bar examination includes the Multistate Bar Examination (MBE) which must be given, because of its nature, on the last Wednesday in July.  You advised that the State Bar could not change the date of the July 2004 bar examination because of the MBE as well as location site issues.  As to the first issue regarding the MBE, I am well aware of what the MBE is.  I took the State Bar in 1978 and that portion has not changed since that time.  As to your second point regarding the complete changing of testing dates , I do not know why you raised this as no where in either of my letters did I suggest that the dates of the entire bar examination be changed.  I am solely discussing a reasonable accommodation for the first day of the examination.
 
 As to the last and final paragraph, the only one truly related to either of my letters, you discuss what you call “an adjustment to the standard administration of the examination” and state that a law student seeking “such an adjustment” can petition the Committee.  You provided the name of the person to whom such a petition would be address and a final receipt date.  You did not provide the standard or requirements of what you refer to as the petition’s “merits” nor did you provide me with a form such as those used by a law student seeking what are known as “accommodations”, not “adjustments”, from the standard procedures.  In addition what this “adjustment” will be, that is when, where and how the student will be given the test materials scheduled on July 27, 2004, is totally absent from your letter. 
 
 Mr. Braun, your letter entirely fails to discuss what goes to the heart of both my letters which is this: It appears that the State Bar knew of the issue for quite some time and sat back and did nothing.  Is that true and if so, why?  And as for this “adjustment” about which you only now advise me with applications soon due, when did it become available?  Why didn’t Mr. Capozzi advise me during any of our conversations including the ones in February?  Why didn’t State Bar staff so advise me during my several calls to the Bar on the issue?  And most importantly, how in the world would a law student wishing to take the July 2004 bar examination know  about this so-called “adjustment”?  I have seen NOTHING about it other than in your letter. 
 
 I am SHOCKED and EXTREMELY CONCERNED that the California State Bar did not chose to do what other states long ago chose to do— that is, FORMALLY ADVISE THE LAW STUDENTS IN THEIR STATE THAT THEIR STATE RECOGNIZED THE TISHA B’AV ISSUE AND THEREAFTER PROVIDED A REASONABLE ACCOMMODATION MECHANISM WITH FORMAL NOTICE TO THE STUDENTS VIA THEIR OFFICIAL STATE BAR SITE.  Other states of this country facing the very same issue have found a resolution, provided guidance on how to apply for this accommodation and have notified students in a public and timely manner.  The State Bar of California, for some inexplicable reason, has done none of these things.  I have searched via the internet to determine how other states have handled the Tisha B’av issue.  I did not contact the states discussed below but rely solely on what I found through my computer searches.  While I have not done an exhaustive search of all states, for your instruction and consideration I provide the following information which I found on the internet for the states of New York, New Jersey, Missouri and Illinois: 
 
 1.  NEW YORK: I have copied nine (9) pages of materials regarding New York’s Board of Law Examiners, most of which come from the official Board site.  You will note from the official site that on August 6, 2003, the Board of Law Examiners issued its first notice on the subject advising students that the Board was aware of the issue and was working to determine what accommodation, if any, would be made.  That Board sought input from law students needing such an accommodation.  Thereafter, on October 20, 2003, the Board of Law Examiners announced that a request for accommodation could be made and advised that the details regarding the application would be announced thereafter.  It further advised that the New York State Board of Law Examiners had rescheduled that portion of the bar to be given on July 27, 2004 to Thursday, July 29th for those for whom an accommodation had been approved.  Attached to the materials regarding New York is the declaration which the student must complete in order to obtain the accommodation.  Also included is a three page article I found from a site  called “www.NYBarReview.com” which discusses the resolution by both the states of New York and New Jersey (see below).  It appears that both of these states were responsive in a timely manner once the issue was presented to them.
 
 2.  NEW JERSEY: I have copied four (4) pages of materials regarding the New Jersey Board of Bar Examiners all of which were found at the official Board site.  You will note that in its original official announcement regarding the availability of the July 2004 bar materials there was reference to “Tisha B’Av”.  I cannot determine the date when this announcement was made.  However, as part of this announcement, the New Jersey Board advised that “Due to the observance of the Jewish holiday of Tisha  B’Av...those candidates who receive special seating at the New York of Pennsylvania examination on Thursday, July 29, 2004, will be permitted to sit for the New Jersey examination on Friday, July 30, 2004 upon formal request during the application process...”  A form was provided to make such an application.  I have included a copy of this form. It is my understanding that the New Jersey bar examination runs from Tuesday, July 27, 2004 and ends Thursday, July 30, 2004, the same as the California bar examination.
 
 3.   MISSOURI: I have copied three (3) pages of materials regarding the Missouri Board of Law Examiners all of which were found at the official Board site.  In what appears to be the first official notice of the availability of forms for application to the July 2004 bar examination, in a “NOTE”, the Missouri Board advised that it was aware of the Tisha B’Av issue and advised affected students to provide a written request to take that portion of the bar examination to be given on July 27th on Thursday, July 30th.
 
 4.  ILLINOIS: I have copied six (6) pages of materials regarding the Illinois  Board of Admissions to the Bar, some of which were found at the official Board site.  According to the official site, the Illinois bar examination is given over two days, July 27-28, 2004.  In what appears to be the first notice to students that application forms for the July 2004 were now available, the Illinois Board noted the observance of Tisha B’av and its effect upon law students wishing to take the July 2004 bar examination.  The Board stated that any applicant affected “...will be permitted to write the essay examination on Thursday, July 29, rather then Tuesday, July 27...” provided that a signed, written request for such an accommodation be properly and timely made as described in said notice.  It would appear from “The Record”, a publication of the Chicago-Kent College of Law, dated “week of January 19, 2004, that the official notice by the Illinois Board occurred well prior to the January, 2004 article.
 
 What these materials establish are several critical things.  First, each state apparently began to investigate how to deal with the Tisha B’av issue as soon as it was brought to their attention.  In most cases, it would appear that these states knew of the issue by mid-2003 and soon thereafter began their inquiry.  Secondly, each state found a way of giving that test portion to be given on July 27, 2004 on some alternative date, a date on which the bar examination is not normally given in that state.  Thirdly, it further appears that before the beginning of 2004 each of the above named states had in place a mechanism for a law student to obtain an accommodation and, most importantly, had given due notice of the availability of such an accommodation and the mechanism to the law students THROUGH ITS OFFICIAL BAR SITE.  From my dealings with the California State Bar through my two previous letters and my conversations with the State Bar staff and Mr. Capozzi, it would appear that California did NONE of the above.  The critical question is WHY?  Why did these states (and possibly others; I will continue my search) have the ability to deal with the problem and resolve it quickly, easily, FAIRLY and with FULL AND TIMELY NOTICE TO THE AFFECTED STUDENTS while California did not?  Is it that California COULD NOT?  I doubt that  the issues of “examination security”, site locations, the MBE and others which you raise in your letter could be critically different or less important for the states of New York, New Jersey, Illinois or Missouri than they are for California.  These states found equitable and appropriate resolutions in a timely manner.  California did not.
 
 I ask that I be given full and complete answers to these important and so far unanswered questions:  When was the California State Bar first advised of the issue of Tisha B’av falling on July 27, 2004 and by whom was it notified?  As I recall, Mr. Baruch Cohen wrote to you in August, 2003 advising you of the issue.  The article in the Los Angeles Daily Journal ran on September 10, 2003 and in that article the author, Katherine Gaidos, discussed conversations on issue with State Bar staff, the names of whom were left undisclosed.  I wrote to you on October 26, 2003 and I have proof you received my letter within a few days thereafter. Assuming Mr. Cohen was your first contact on the issue, the State Bar has known since some time in August 2003.  Regardless of whether or not the State Bar was advised before or during August, 2003, what specific actions were taken upon such notification(s) and when did these actions occur?  Why was no official notice of the availability of an accommodation (or, as you call it, “an adjustment”) placed on the official State Bar internet site and/or given through the in-state law schools?  I enclose a copy of the official State Bar site as it looked the evening of March 20, 2004.  There still is nothing about this issue on the site, even in the section called “Special Notices”.  For example, no where on the site do I found anything notifying the students about the availability of the “adjustment” about which you wrote me.  Why is that?  Why was no official “Accommodation” form such as those found on the California website for other such issues such as physical handicaps ( See official Forms A, B, C, D, E, F and Subsequent Petition for Testing Accommodations, enclosed herewith) provided along with the other application materials or, in lieu thereof, a statement of how specifically to apply and upon what grounds it would be granted?  Assuming the students even were advised of this “adjustment”, what are the grounds for seeking same?  Is a declaration needed, what should it contain and from whom should it come? Are the students to GUESS at the answers when making an error in guessing could cost them their opportunity to take the July 2004 bar?  Lastly, how and when will a student granted this “adjustment” makeup the materials presented on July 27, 2004? 
 
 While the issues regarding a fair and proper accommodation for Tisha B’av are of primary concern to me, I raised in my letters other issues which are also important and should be addressed and about which I deserve a response.  I raised two general issues, the first being the calendaring and scheduling of important State Bar activities so as not to preclude, to the extent possible, observant Jews from participating and the second being the absence of Kosher food at State Bar events.  As an example, I pointed out that this year’s State Bar convention falls squarely during several important Jewish holidays.  I would request that these issues are also important and need analysis and review.  Is anyone looking into those matters?  Your letter does not address any of these issues and I have heard nothing about any of them from Mr. Capozzi.  When can I expect a response to these questions as well? 
 
 In summary, while I thank you for at least responding after I took the time and effort to write two serious letters about numerous serious subjects, I believe that your response is incomplete, unhelpful and disheartening.  I look forward to receiving a thorough response to the issues raised in those first two letters as well as those raised herein.  I am serious about everything that I have written to date.  As a long-time member of this Bar, I deserve better treatment.  The Jewish students hoping to become members of this Bar by taking the July 2004 examination deserve better treatment.
 
 Thank you in advance for your anticipated prompt attention to this matter, your transmittal of same to the Board of Governors and the Committee of Board Examiners and for a full and complete response from the appropriate person or persons.
 
      Very truly yours,
      Roberta Scharlin Zinman 
      Bar Number 83804
 cc: Anthony Capozzi, President w/ enclosures at Fresno office address
 
9. April 2, 2004: Los Angeles Daily Journal Article: “Date of Exam Won't Change For Holy Day -- State Bar Says It Can't Let Religious Beliefs Influence Its Decisions
 
Date of Exam Won't Change For Holy Day -- State Bar Says It Can't Let Religious Beliefs Influence Its Decisions
Daily Journal - Apr 2, 2004
By Leslie Simmons
Daily Journal Staff Writer
 
LOS ANGELES - The State Bar announced Thursday that it will not allow summer exam applicants to postpone the first day of testing in order to observe the Jewish day of mourning, Tisha B'Av, saying that it cannot make decisions on applicants based on their religious beliefs.
The decision counters what bar examiners in New York, New Jersey, Illinois and Missouri have agreed on. Those states are allowing observant students to take the state portion of the test a day or two after Tisha B'Av.
 
One attorney who had asked the bar to permit adjustments for test takers observing Tisha B'av called the decision a "cop out." "It's not nice and it's not respectful," Los Angeles attorney Baruch Cohen said. "And it's very disappointing."
 
Years in Advance
 
But Jerome Braun, the bar's senior executive of admissions, disagreed. Braun said the Committee of Bar Examiners would have had to "review personal beliefs and practices and weigh the severity of the effects of taking the examination" for each applicant.  "That is something this committee can't do," he said. Braun also said the large number of test takers - 13,000 - security issues and venue reservations made years in advance were part of the committee's decision.
 
'Fairest to Most'
 
"We can't tell the distinction between people with genuine religious beliefs and others seeking an extra day for test preparation," he said. "We've got to administer the Bar Examination in a manner that is fairest to most people."
 
Tisha B'Av is a day to observe the sufferings of the Jewish people. Observers are not allowed to eat or drink, wash or bathe, shave or wear cosmetics, wear leather shoes, have sex or study the Torah.
On the Jewish calendar, the holy day falls this year on July 27, the first day of the State Bar Examination.
Test dates are "neutrally selected" and held in February and July over two or three days, coinciding with the Multistate Bar Examination, which always is given on a Wednesday, Braun said.
 
Seven months ago, Cohen, along with several Southland rabbis, sent letters to the California State Bar asking for a postponement for applicants wishing to observe Tisha B'Av. Cohen, who was admitted to the bar in 1992, has tutored applicants in the past and has advocated that the bar and other organizations observe Jewish holy days.
 
The American Civil Liberties Union, on behalf of the Progressive Jewish Alliance, the Muslim Public Affairs Council and the Rev. Ed Bacon, rector of All Saints Church in Pasadena, sent the bar a letter in November asking it to address the conflict.
 
Cohen and the others expressed concern for those taking the July 27 essay portion, believing the day's restrictions would put them at a disadvantage. "It is hard to imagine what it must be like to take the grueling exam - while fasting and not showering since the night before," Cohen wrote in his Sept. 10, 2003, letter to the bar. "[A] Jewish applicant taking the Bar Examination will have the added distraction of hunger, discomfort and mourning to detract from his/her performance."
 
Braun responded to Cohen's letter on Sept. 25, 2003, saying that the bar cannot change the dates for the July 2004 test. But he said applicants can petition the Committee of Bar Examiners for an adjustment and gave a deadline of June 1 for requests.
 
That was before the Committee of Bar Examiners met on March 19 and decided not to make any changes, like switching the first day of testing for religious observers to another day. Under existing bar rules that remain in effect, only disabled test takers who fall under the American with Disabilities Act can petition for special consideration, Braun said. They include those with physical, mental and learning disabilities and attention deficit/hyperactivity disorder. But those with disabilities have to take the Bar Exam on the same testing days as everybody else. "We're going to give our Bar Examination as planned," Braun said. "We're not going to alter or adjust the schedule based on religious beliefs."
 
ACLU attorney Peter Eliasberg said the Bar is making a "mistake." "Government agencies are perfectly permitted to make accommodations for people," Eliasberg said. "For the Committee] of Bar Examiners to come up with an explanation like that, that doesn't really reflect the law and doesn't make sense."I really doubt they would schedule the Bar on Easter," he added.
 
One attorney, who had written several letters to the bar on the issue, said the first day of testing easily could be moved to another day because only the state's portion of the examination is administered. "That's exactly what the other states are doing," the attorney, who requested anonymity, said. "I don't understand why the state of California finds these issues so insurmountable, while four states in this nation, including New York, which prides itself on being the most difficult bar in the country, can resolve these issues."  Braun said that, because the bar reserves venues well in advance, days cannot be added and changes cannot be made.
 
Last year, bar examiners in New York, New Jersey, Illinois and Missouri, at the urging of Jewish leaders, decided to allow religious observers to take the first day of the test, an essay portion, on another day. Their Web sites also have information posted. In an Oct. 20, 2003, press release, the New York Board of Law Examiners indicated it had received 200 requests for accommodations. California received fewer than 10, Braun said. Illinois, Missouri and New York applicants can take the Tuesday test, which is an essay portion, on July 29. In New Jersey, bar examiners picked Friday, July 30 to give the essay test. Many other states, including California, have not posted any information indicating they are considering or allowing observers to take the test another day. The states include Florida, Connecticut, Delaware and the District of Columbia.
 
10. April 16, 2004: State Bar's Resolution
 
State Bar's Resolution: dated April 16, 2004
 
RESOLVED, that the Board Committee on Operations, acting on behalf of the Board of Governors between meetings, hereby adopts the following policy on an emergency interim basis without prior public comment, pursuant to section 11 of the Procedure for Adoption, Amendment, or Repeal of State Bar Regulations:
 
It shall be the policy of the State Bar of California that individual requests by Applicants for accommodation of their religious beliefs, observances and practices with regard to the administration of the California Bar Examination or First Year Law Students' Examination shall be determined as follows:
 
Where an Applicant establishes by proof to the satisfaction of the Committee of Bar Examiners that the Applicant maintains a set of sincerely held beliefs, observances and practices that occupy a place of importance parallel to that of traditionally recognized religions as described in Friedman v. Southern Calif. Permanente Med. Group, 102 Cal. App. 4th 39, 69-70 (2002), and those beliefs, observances and practices require the observance of a religious holiday on which the performance of any work or study is specifically precluded by the Applicant's religious authority, on a date and at a time that conflicts with a scheduled administration of the California Bar Examination or First Year Law Students' Examination, the Committee of Bar Examiners shall offer a reasonable accommodation of that individual Applicant's religious belief unless the Committee determines that such an accommodation would cause undue hardship or more than a de minimis cost to the State Bar. For purposes of this policy, undue hardship shall include, but not be limited to, an accommodation that would alter the nature or integrity of the examination; and it is
 
FURTHER RESOLVED, that the Board Committee on Operations, acting on behalf of the Board of Governors between meetings, directs the Committee of Bar Examiners to immediately reconsider all requests which have been denied and consider all new requests that fall under this policy for the next administration of the Bar Exam and to apply this policy to those requests; and it is
 
FURTHER RESOLVED, that the Board Committee on Operations, acting on behalf of the Board of Governors between meetings, hereby directs staff, in accordance with section 11 of the Procedure for Adoption, Amendment, or Repeal of State Bar Regulations, to publish the above interim policy for a 90-day public comment period.
 
11. April 19, 2004: Memorandum from Starr Babcock, Special Assistant to the Executive Director to Deans, California Law Schools
 
 MEMORANDUM
DATE:  April 19, 2004
TO:  Deans, California Law Schools
FROM: Starr Babcock, Special Assistant to the Executive Director
SUBJECT: BOARD OF GOVERNORS POLICY REGARDING ACCOMMODATIONS FOR EXAMINATION APPLICANTS RELATED TO OBSERVANCE OF RELIGIOUS HOLIDAYS
 
For your information, the Board of Governors of The State Bar of California recently adopted the following policy regarding the observance of religious holidays that conflict with administration of the First-Year Law Students’ Examination or the California Bar Examination:
 
 RESOLVED, that the Board Committee on Operations, acting on behalf of the Board of Governors between meetings, hereby adopts the following policy on an emergency interim basis without prior public comment, pursuant to section 11 of the Procedure for Adoption, Amendment, or Repeal of State Bar Regulations:
 
 It shall be the policy of the State Bar of California that individual requests by Applicants for accommodation of their religious beliefs, observances and practices with regard to the administration of the California Bar Examination or First Year Law Students’ Examination shall be determined as follows:
 
 Where an Applicant establishes by proof to the satisfaction of the Committee of Bar Examiners that the Applicant maintains a set of sincerely held beliefs, observances and practices that occupy a place of importance parallel to that of traditionally recognized religions as described in Friedman v. Southern Calif. Permanente Med. Group, 102 Cal. App. 4th 39, 69–70 (2002), and those beliefs, observances and practices require the observance of a religious holiday on which the performance of any work or study is specifically precluded by the Applicant’s religious authority, on a date and at a time that conflicts with a scheduled administration of the California Bar Examination or First Year Law Students’ Examination, the Committee of Bar Examiners shall offer a reasonable accommodation of that individual Applicant’s religious belief unless the Committee determines that such an accommodation would cause undue hardship or more than a de minimis cost to the State Bar.  For purposes of this policy, undue hardship shall include, but not be limited to, an accommodation that would alter the nature or integrity of the examination; and it is
 
 FURTHER RESOLVED, that the Board Committee on Operations, acting on behalf of the Board of Governors between meetings, directs the Committee of Bar Examiners to immediately reconsider all requests which have been denied and consider all new requests that fall under this policy for the next administration of the Bar Exam and to apply this policy to those requests; and it is
 
 FURTHER RESOLVED, that the Board Committee on Operations, acting on behalf of the Board of Governors between meetings, hereby directs staff, in accordance with section 11 of the Procedure for Adoption, Amendment, or Repeal of State Bar Regulations, to publish the above interim policy for a 90-day public comment period. 
 
It is recommended that you post this policy in a prominent place so that your students may have access to it.  With regard to any action the Committee of Bar Examiners may take relative to reconsideration of existing and future petitions that are seeking accommodations related to an applicant’s observance of Tisha B’Av on July 26, which also is the first day of the administration of the July 2004 California Bar Examination, that matter will be determined during its meeting on May 1, 2004.   Also under consideration at that time will be exactly how applicants observing the holiday will be accommodated, such as administration of the first day of the examination on an alternative day, and what documentation will be required in order that the accommodation be granted.  This information will be made available on the State Bar’s website after that date.
 
As noted in the action taken by the Board Committee, this policy has been adopted by the Board for immediate implementation.  Simultaneously, the policy is to be circulated for a 90-day public comment period.  If you would like to submit comments, please send them to the attention of Ms. Gayle Murphy, Office of Admissions, The State Bar of California, 180 Howard Street, San Francisco, CA 94105-1639 no later than July 19, 2004.
 
sbg0419-1    
cc: Board of Governors
 Committee of Bar Examiners
 Judy Johnson, Executive Director
 Jerome Braun, Senior Executive for Admissions
 
12. April 19, 2004: LADJ Article: “Bar Urges Accommodation of Jewish Test Takers”
 
BAR URGES ACCOMMODATION OF JEWISH TEST TAKERS
By Leslie Simmons
Daily Journal Staff Writer
 
LOS ANGELES - Under pressure from outraged state Assembly members, State Bar leaders on Friday issued a broad resolution calling on the Committee of Bar Examiners to accommodate applicants whose religious observance conflicts with exam dates.
 
The resolution comes after the bar examiners refused to make special arrangements for Jewish test takers who observe the religious holiday Tisha B'av, a day of mourning and fasting, which overlaps the first day of this summer's examination, July 27.
 
On Tisha B'av, a centuries-old religious commemoration, observers cannot eat or drink anything, including water, or read the Torah. It commemorates tragic days in Jewish history, including the destruction of the first and second temples. Some Jews also remember Holocaust victims on Tisha B'av.
 
Since the examiners' decision, the bar has been inundated with calls from lawyers, legislators and others, upset with the refusal to accommodate worship, said its president, Anthony Capozzi.
Rep. Paul Koretz, D-West Hollywood, sent a letter on April 9 to Capozzi and Jerome Braun, senior executive of admissions, blasting the bar examiners' decision and asking that they "move quickly to change this policy and allow for special provisions." "I consider this decision to be discriminatory and completely unacceptable," Koretz wrote. Rep. Allan Lowenthal, D-Long Beach, circulated a similar letter to members of the Assembly and Senate. By late Friday, he had gathered 45 signatures and sent them on to the State Bar and bar examiners. "We hope they resolve this in the right way," Lowenthal said Friday.
 
The resolution instructs bar examiners to make "reasonable accommodation" to applicants with valid conflicts because of "sincerely held beliefs, observances and practices that occupy a place of importance parallel to that of traditionally recognized religions." The resolution asks bar examiners to quickly publish the resolution as an interim policy with a 90-day comment period.
"We wanted to set a policy so [the Committee of Bar Examiners] understands what our feelings are," Capozzi said. "They didn't have the benefit of it before."
But the policy leaves it up to the Committee of Bar Examiners to determine exactly what proof applicants must provide of their adherence to Tisha B'av. The committee also will decide how to accommodate those test takers.
 
The vagueness concerns Baruch Cohen, an attorney who advocated for a change in the bar exam policy. "It's a resolution that's a portion of the way there," Cohen said. "At this late date they should not hold people to a scrutinizing standard."
 
The bar examiners' president, Jon Wolff, said the committee will decide on May 1 what to do.
"The committee will give full consideration to everyone's request," Wolff said.
 
But Starr Babcock, special assistant to the bar's executive director said, "There are ways to verify that a person truly believes."
 
Accommodations might include moving the Multistate Bar Examination, given on Wednesday, to Friday. The first day of testing for Tisha B'av observers then would be July 28, Babcock said.
Bar examiners had expressed concern that there could be a breach in security if Tisha B'av observers were given an extra day. But Babcock said that fear did not pan out when the State Bar had to comply with the Americans with Disabilities Act. Disabled applicants are allowed up to six days for accommodations, he said. "I can tell you in my experience ... everybody said the same thing about ADA," Babcock said. "The exam rate hasn't gone up, and the pass rate hasn't gone up."
 
13. April 20, 2004: Letter from Gayle Murphy of the Committee of Bar Examiners to Roberta Zinman
 
From: Murphy, Gayle
To: rsz1@earthlink.net
Sent: 4/20/2004 5:37:39 PM
Subject: RE: Tisha B'av Accommodations
 
For your information, attached is a copy of a memorandum that was sent to the law schools yesterday. Otherwise, no further information is expected to be posted or published until after the Committee of Bar Examiners meeting on May 1.
 
Gayle E. Murphy
Director for Administration
Office of Admissions
The State Bar of California
180 Howard Street
San Francisco, CA 94105-1639
(415) 538-2322
gayle.murphy@calbar.ca.gov
 
 
 
14. April 20, 2004: Letter from Roberta Zinman to Gayle Murphy of the Committee of Bar Examiners
 
From: Roberta Zinman
To: Murphy, Gayle
Cc: Alan Lowenthal (0ffice in Sac); Paul Koretz (office in W. Hollywood)
Sent: 4/20/2004 7:42:20 PM
Subject: RE: Tisha B'av Accommodations
 
Ms. Murphy: Thank you for sending me a copy of the memorandum. I am concerned, however, about the late date of such a notification to the law schools. As I am sure you and the Bar are aware, many schools have already begun finals. Some are very close to commencement ceremonies. Even if the memorandum is posted at each school, given the timing of the posting, it is not at all certain that the effected students will even see the memorandum, I spoke with Starr Babcock on April 19, 2004 and he never mentioned this memorandum. I must assume that it was sent following our conversation. I told Mr. Babcock of my valid and real concerns about reaching the law students who need this accommodation and even suggested sending out notice to each student who had already applied for the July 2004 Bar. Mr. Babcock dismissed this as too expensive however I believe that the Bar should act in good faith and absorb any cost inherent in notifying the students. Failure to notify a student who has the right to apply for this accommodation could lead to that student not learning of the accommodation and needlessly postponing taking the Bar because that student does not wish to compromise his religious believes and take the July 2004 exam. Such as resolution as to that student would be more than just an unfortunate occurrence---it would be a tragedy which the Bar had the ability to avert but chose not to avert because of financial considerations. Also, I am very concerned about the wording of this memorandum. In the next to last paragraph, Mr. Babcock writes:"Also under consideration at that time [May 1, 2004] will be exactly how applicants observing the holiday will be accommodated...and what documentation will be required in order that the accommodation be granted". It is the latter part of this sentence which concerns me. First, as to those who already applied and were rejected , their documentation already is in the hands of the Bar. They presented it to you without any guidance and without public notice that you would even consider such an application. In the interest of fairness, the Bar should accept what they have presented and grant an accommodation unless there is STRONG justification on the part of the Bar not to do so. I suggest that you err on the side of allowing an accommodation rather than err on the side of rejecting one already rejected in the past prior to the new policy. As to new applications, if you only decide on May 1, 2004 what you will accept, the issues raised above resurface--HOW WILL YOU NOTIFY STUDENTS OF THIS NEW PROCESS ONLY DECIDED UPON ON MAY 1, 2004? Applications were due by April 1, 2004 and the final deadline is some time in mid-June. Therefore, if you decide on May 1, 2004 what documentation will be required for any new application for accommodation, effected students will have very little time, even if you send out such notice on May 1, 2004, in which to get that which you demand. I seriously hope that the Bar is not attempting to make this process more difficult for the Jewish students that it should be. Please recall that if the Bar had acted, as other states had acted, by December of 2003, none of these issues and problems would have arose. Please respond to this email right away as the information sought is of critical importance. Thank you for your anticipated prompt attention to this matter.
 
Roberta Scharlin Zinman
rsz1@earthlink.net
 
15. April 20, 2004: Letter from Roberta Zinman to Gayle Murphy of the Committee of Bar Examiners
 
From: Roberta Zinman
To: gayle.murphy@calbar.ca.gov
Sent: 4/20/2004 6:17:42 AM
Subject: Tisha B'av Accommodations
 
Ms. Murphy: I noticed this morning that the Bar has posted in the "Public Comment" section about the religious accommodation policy as the recent resolution mandated. I further note that in the title there is no mention of "Tisha B'av" to alert students or anyone else to the real reason behind the new policy and the posting. I did not find anything about this accommodation anywhere else on the site, particularly in that section called "Admissions" in which "Special Notices" about the Bar Examination are posted. Are you planning on posting the notice of accommodation in the Admissions section, under the Special Notices section or any other section of the Bar website so that students interested in the July 2004 Bar Examination can readily find out about the accommodation? If so, where do you plan on posting the announcement and when do you plan on posting it? If you do not post it in a manner which will call attention to it in a prominent way and you do not post it in a section where Bar Examination related postings are ordinarily made (i.e. the "Admissions" section), students who are effected will not see it. I am sure that it was the intent of the resolution to make sure that the Bar made all reasonable efforts to advise students of the availability of this accommodation. Your posting in the Public Comment section alone is insufficient for this important purpose. Please advise what, if anything more, you intend to do.
 
Roberta Scharlin Zinman
rsz1@earthlink.net
 
 
 
16. April 20, 2004: ACLU’s Press Release
 
From: Peter Eliasberg [mailto:peliasberg@aclu-sc.org]
Sent: Tuesday, April 20, 2004 3:22 PM
To: Tenoch Flores
cc: Ramona Ripston; Douglas Mirell; gluke@strumwooch.com
Subject: RE: Daily Journal Article - Victory! The State Bar Reverses Itself
 
"The ACLU of Southern California applauds the decision by the State Bar to accommodate applicants whose religious observance would have conflicted with this year's exam dates. It is regrettable that it took the Bar this long to change course, after repeated written inquiries from the ACLU/SC and now pressure from the State Assembly. But it is nevertheless it is encouraging that it appears that students who observe the Jewish holiday of Tisha B'Av will have a chance to take the July sitting of the bar exam.
 
We urge that the State Bar to schedule the Bar exam in the future to avoid conflicts with religious holidays, or, at minimum, ensure that there are appropriate accommodations available for persons whose religious practices would be substantially burdened. We will continue to monitor the situation to ensure that accommodations are adequate and fair this year and in the future, where necessary."
 
17. April 21, 2004: Letter from Roberta Zinman to Candidates for the Presidency of the State Bar Board of Governors Re: Position on accommodation for Jewish students for the first day of the Bar Examination and related matters
 
MEMORANDUM
 
TO:  Candidates for the Presidency of the State Bar Board of Governors
FROM: Roberta Scharlin Zinman, Bar Number 83804
RE:  Position on accommodation for Jewish students for the first day of the Bar Examination and related matters
Date:  April 21, 2004
 
 Ms. Kral, Mr. Roeca, Ms.Scott, Mr. Van de Kamp;
 
 The California State Bar was notified in the Fall of 2003 that the first day of the July, 2004 Bar Examination falls on the Jewish Holiday of Tisha B’av, the date on the Jewish calendar when the Temple in Jerusalem was destroyed on two separate occasions.  This is a day where observant Jews observe a twenty-four fast where no food or liquid is consumed and it is a day of mourning, self contemplation and prayer.  There is general abstention from normal, everyday activities in remembrance of these tragedies. 
 
 On September 10, 2003, the Daily Journal newspaper here in Los Angeles printed an article about this issue.  It noted that in August, 2003 an attorney named Baruch Cohen first notified the Bar and suggested that an accommodation for the first day be granted. Representatives for the Bar are quoted in that article.  Based upon the September article and my finding nothing on the Bar site about the issue, I first contacted both the Bar and Mr. Cappozi, the President of the Board of Governors, both by phone in September, 2003 and then by letter in October, 2003 asking what was being done.  I got no written response from the Bar.  Thereafter in February, 2004, again seeing nothing on the Bar site, I contacted both the Bar and Mr. Cappozi.  I got no answers from either gentleman to any of my questions.  I wrote again in March , 2004 and finally got a very cursory response authored by Jerome Braun stating that an “adjustment” was available upon petition by a law student.  However, his letter failed to explain either what the “adjustment” would be or what the petition must contain.  This led on March 22, 2004 to my six page letter with attachments sent to the Board of Governors, the Committee of Bar Examiners and Mr. Braun.  In that letter, I showed by numerous attachments how the states of New York, New Jersey, Missouri and Illinois had dealt with the issue of accommodation back in the Fall of 2003 when it first was brought to their attention.  Some of the states even had specific forms to be used in order to apply for this accommodation.  In these states Jewish students were being allowed to take that portion of the law examination following the last day of the normal bar examination in that state.  I got no response to this letter.  In fact, because of my conversations with various members of the Board of Governors, I am lead to believe that my letter with attachments was never disseminated to the members of either of these bodies as I had requested.
 
 At the end of March, 2004 I was notified by the Daily Journal that the Committee
Candidates for the Presidency of the State Bar Board of Governors
page two
 
of Bar Examiners had met and had decided NOT to grant any kind of accommodation to Jewish students based upon the Tisha B’av conflict.  I was also advised that the ten students who had requested some kind of an accommodation would be receiving denial letters.  This was in direct contradiction to Mr. Braun’s letter to me dated March 16, 2004.  I called various members of the Board of Governors who represent District 7 of which I am a part and verified that the Committee had formally acted as described.  I was stunned, surprised and shocked that the Committee would deny an accommodation to these students who would then be forced to either take the Bar Examination while fasting and in contradiction to their religious practices or forego the Bar Examination for six months.  I did not believe the Bar should put them in this unnecessary, cruel and very likely illegal position.
 
 With the assistance of the State Legislature, particularly Assemblymen Alan Lowenthal and Paul Koretz, the Bar was strongly “encouraged” to revisit the decision of the Committee and did so on Friday, April 14, 2004.  By resolution of the Board Committee on Operations, acting on behalf of the Board of Governors between meetings, the Committee of Bar Examiners was directed at their April 30-May 1, 2004 meeting to reverse its policy, review all old and new applications and provide a reasonable accommodation to those students whose sincerely held religious believes and practices precluded them from taking the Bar Examination on July 27, 2004.  Of course, like other accommodations, the students must provide prove that the accommodation is necessary. However, unlike other accommodations, there is no Bar provided form or format for such a petition.  Hence, as of this writing, the students must guess as to what will be necessary and acceptable.  Moreover, given the late date of this action and the previous action of the Committee, it is not at all certain how the availability of this accommodation will be transmitted not only to those students whose requests were originally denied but also to other students who did not apply but who would wish to seek this accommodation now that it is available.  Law schools are soon going into finals so it may be impossible for the schools to disseminate the information even though I am advised that Mr. Babcock transmitted a memorandum to the California law schools on April 19, 2004 and asked that it be posted.  As the applications for the Bar Examination were due on April 1, 2004, it is not likely that law students will, as a matter of course, be looking at the State Bar Website but if they did do so, they would not find anything about the accommodation under the “Admissions” section.  The resolution is posted under the “Public Comment” section where students probably would not be looking. I suggested that the Bar send a notice to all applicants but Mr. Babcock dismissed this as too expensive.  I suggested posting in the Admissions section.  My suggestion was not followed.  Therefore, I am most concerned as to how students will learn of the Bar’s action. 
 
 Please know that I am working with my rabbi and various rabbinic organizations to try to do what I and the rabbis can do to get the information to the effected students, even at this late date.  I sincerely hope that we are successful because I do not know the extent and seriousness of the actions the Bar is contemplating and how successful those actions will be. If even one student for whom this accommodation is religiously justified does not learn of it in time to apply and properly study for the July, 2004, this Bar and its entire membership will have done an injustice to this student, an injustice which is inexcusable. Please be advised that even though I am doing all that I can to notify the students, I do not believe that my actions absolve the Bar from doing all that it can. I hope that you all agree.
 
 I bring this to your attention because I would like to know how you, as a person seeking to lead this organization, feel about this situation.  Because you all are present members of the Board of Governors you should be familiar with the issue.  I hope that by now Mr. Braun has disseminated my three letters to the Board on this subject.  They are dated October 23, 2003, March 7, 2004 and March 22, 2004.  If you do not have them, please have Mr. Braun transmit them to you and please inquire why you are only receiving them at this time.
 
 This issue is very important to me not just because of the impact it still has on the July, 2004 Bar Examination but because I believe that it speaks to larger problems within the Bar organization.  In my letters, in addition to raising the Tisha B’av issue, I commented that because the Bar has its major meetings and its committee meetings on Fridays and Saturdays, observant Jews cannot participate at the highest levels of this organization.  I have reviewed the document called the “State Bar of California Board of Governors Member Responsibilities” which states in no uncertain terms that any person seeking membership on the Board must “Absent emergency circumstances ...attend all board and committee meetings on time.”  How can an observant Jew promise to do this when a meeting or committee is calendared squarely during the Sabbath or during a Jewish holiday?  I also raised the issue of the unavailability of Kosher food at Bar events.  It is difficult to come and fully participate in an event, particularly a multi-day event, if you can’t eat.  No letter from the Bar or Mr. Braun answered any of my questions related to these concerns.
 
 Based upon the above, I would request that each of you respond to this email and discuss your feelings and impressions regarding the Tisha B’av issue as well as the issues of broader concern involving full participation in the Bar by all of its members.
I look forward to hearing from you individually.  I do not expect that you will need or want to share your responses to me with the other presidential candidates. Please understand that I am writing to you in my capacity as a member of this Bar for more than twenty-five years.  I do not represent the press, any organization or any other organized body.  I write because I was greatly disturbed and continually to be greatly disturbed by the way the Bar acted regarding the Tisha B’av issue and other matters which I raised and to which I got no response.  I would hope that the leader of the Bar next year is insightful, sensitive and respectful of the issues I raised regarding observant Jews.  Will you be if you are chosen?
 
 Thank you in advance for your anticipated  prompt attention and response in this matter.  Please feel free to contact me if you have any questions.  My work information is on the State Bar site under my birth name, “Scharlin”.  However, as this matter is not work-related I would request that you respond using my personal email address from which I am sending this letter.
 
 Thank you.
 
18. April 29, 2004: From Janie Hickok Siess, Assistant Chief Counsel, Department of Fair Employment and Housing, Legal Division
 
Hi Leslie:
 
I understand that you are looking for additional information regarding the requests for accommodation re: Tisha B'Av that have been submitted to the Bar.
 
At this point, there really isn't anything to report from the DFEH's perspective. We are not actively conducting an investigation as I am informed that we have not yet received any complaints. It is my understanding that the Bar decided to re-evaluate all the requests for accommodation that it received. We await their decision.
 
If you wish to discuss further, please don't hesitate to contact me.
 
Janie Hickok Siess
Assistant Chief Counsel
Department of Fair Employment and Housing, Legal Division
(916)227-2883 Office
(916)227-2845 Facsimile
(916)227-7874 Direct Line
 
19. April 30, 2004: LADJ Article: State Bar Will Rule on Tisha B'av Exceptions
 
State Bar Will Rule on Tisha B'av Exceptions
Daily Journal - Apr 30, 2004
By Jory Farr
Daily Journal Staff Writer
 
LOS ANGELES - State bar officials are expected to rule Saturday in a long-simmering controversy over a conflict between this summer's exam date and Tisha B'av, the Jewish day of mourning.
 
Bar watchers said it's anybody's guess whether the committee of bar examiners will adjust the multiday test to accommodate those observing the commemoration July 27, a Tuesday, the first day of the three-day exam. Bars in New Jersey, New York, Missouri and Illinois have agreed to special arrangements.
 
Starr Babcock, special assistant to the executive director of the State Bar, said the group could shift test dates for observant Jews.
 
"There are a number of ways to do it. One scenario would be giving the Tuesday exam on Wednesday. Then on Thursday people would take the normal exam given on that day," Babcock said. "On Friday, those with special accommodations would take the multistate exam."
 
Jonathan Wolff, the committee's president, and California State Bar President Anthony Capozzi declined comment.
 
Tisha B'av, which commemorates all the tragedies of Jewish history, is a 2-millennium-old religious holiday. Because the holiday requires praying and fasting and forsaking water for 26 hours, the resultant fatigue would put tremendous pressures on test-takers, they contend.
Lawyers and applicants have been agitating for bar action to resolve the conflict for months.State Bar leaders recently issued a broad policy statement calling on the committee of bar examiners to accommodate religious observers.
 
Capozzi said the State Bar has asked the committee to review all applicants, past and present, who have applied for religious accommodation.
 
“The problem was the committee of bar examiners did not have a policy for religious observance when they made their decision," said Capozzi, who will be at the May 1 meeting in Los Angeles. "But now we have a policy."
 
Some observant Jews said they were angry the bar didn't leap to settle the issue. "I think it's outrageous that the committee of bar examiners wouldn't allow me special accommodation given that I'm a Hassidic Jew," said Kayla Schellemberg, who petitioned the committee for a new date to take the test but was rejected.
 
“Tisha B'av is a day of mourning. It's as important as Yom Kippur to Orthodox Jews. You must pray, and you can't drink or eat for 26 hours. I'm very sensitive to fasts, and that would put me at a tremendous disadvantage when taking the exam."
 
Schellemberg's petition included a letter from her doctor and rabbi.
 
“This last-minute scrambling is so insulting to Jews. We don't want another level of scrutiny. We just want to be accommodated," says Baruch Cohen, a Jewish Los Angeles attorney who wrote to the State Bar in September of 2003, alerting them to the Tisha B'av conflict.
 
The California State Bar had cited concerns that late test-takers might get a hold of the questions or answers. But officials in New Jersey, New York, Missouri and Illinois are letting observant Jews take part of the test on another day.
 
The California bar regularly allows applicants who fall under the Americans with Disabilities Act or who suffer from dyslexia, attention deficit disorder and other learning disabilities to take up to six days to complete the exams.
 
"Those examinees under ADA or suffering from learning disabilities can get time and a half or even twice the time for taking the exam," Babcock said. "But to get these accommodations, you have to file a petition and provide medical documentation. The committee then reviews that."
Any late testing would be administered in a private facility with a proctor, he said.
 
"We give ADA examinees up to six days to take the exam," Babcock said. "But we've seen no increase in the pass rate. In the end, we're also assuming students are honorable."
 
20. May 4, 2004: LADJ: Bar Resolves Conflict Over Dates of Exam, Examiners Will Let Religious Jews Take Portion of Test Later
 
Bar Resolves Conflict Over Dates of Exam
Examiners Will Let Religious Jews Take Portion of Test Later
May 4, 2004
By Jory Farr
Daily Journal Staff Writer
 
LOS ANGELES - A State Bar committee has resolved a conflict between this summer's Bar Exam and Tisha B'av, the Jewish day of mourning.
 
The committee of bar examiners voted Saturday to allow religious Jews to delay taking part of the exam so they can observe the solemn holy day.
 
The unanimous decision ends a long-running controversy over how to balance the need to keep the long-scheduled test on track and the religious commemoration, which this year falls on the opening day of the three-day Bar Exam, Tuesday, July 27.
 
No Food or Drink for 24 Hours
 
Observers mark the day by praying and going without food or drink for 24 hours. Test-takers said having to take the grueling exam the same day as they follow the rigorous observances would put them at an unfair disadvantage.
 
The committee's vote pleased some critics who had vociferously protested an initial decision last month against accommodating Tisha B'av observers.
 
Protesters were particularly incensed that California, with its large Jewish population, was balking when officials in New York, New Jersey, Missouri and Illinois already had agreed to allow observant Jews to take part of the test on another day.
 
'The Right Thing'
 
"The State Bar did the right thing. It's a very good accommodation," said Baruch Cohen, a Los Angeles attorney who wrote the State Bar last September, alerting them to the Tisha B'av conflict. "It satisfies the State Bar's need to have the Bar Exam during the dates that everyone else is taking the exam. And it allows the Jews who need that day off to take it."
 
Under the committee's ruling, Tisha B'av observers can take the Tuesday exam the next day. Wednesday's multistate exam will be given on Friday and Thursday's exam will be offered as scheduled, according to Jonathan Wolf, chair of the committee of bar examiners, which administers the test.
 
But at least one test-taker said she was unhappy with the decision.
 
"I told the bar committee it was impossible for me to take the exam on Friday," said Kayla Schellemberg, a devout Hassidic Jew. "Monday was the day to change it to."
 
The Bar Exam runs from 9 a.m. to 5 p.m., with a two-hour midday break.
 
"Friday is the Sabbath, which requires me to be at my house by 5 p.m.," Schellemberg went on. "Meanwhile, I'm scheduled to take the bar in Ontario which is hours from my house. I'm very unhappy with this decision."
 
Wolf said the vote Saturday empowers officials to address dilemmas like Schellemberg's  "Part of the committee's action on Saturday was to direct staff to implement the accommodation," he said. "If an applicant requires additional accommodation, he or she will have to submit that to the staff for review."
 
Observant Jews will have to file a special written petition to be granted a revised testing schedule. The deadline for the State Bar to receive the petitions is June 15, Wolf said.
Petitioners also must file a signed declaration stating that they will not try to find out what's on the test, Wolf said. State Bar officials earlier expressed concern that late test-takers might get a hold of the exam.
 
Wolf said the petitioners also need a statement from their rabbis declaring that their religious beliefs require them to observe Tisha B'av.
 
Seven people so far have petitioned the committee for a Tisha B'av accommodation, Wolf said.
"The office of admissions staff will review those petitions that have been received and will determine if any additional information will be needed," Wolf said.
 
Bar officials hope to have specific instructions on how to seek an accommodation on their Web site (www.calbar.ca.gov)  this week, said E.J. Bernacki, a representative of the State Bar.
 
©© 2004 Daily Journal Corporation. All rights reserved.
 
21. May 4, 2004: From ACLU Eric Greene
 
Hello Mr. Cohen,
 
Thanks for all your help with the Tisha B'Av/bar exam matter. We hope that the needs of religious students will be fairly respected in the future. Here are the letters are promised I would forward to you. Thanks again.
 
Best Wishes,
Eric Greene
ACLU of Southern California
 
22. May 10, 2004: Jewish Telegraphic Agency: Jerusalem Post - Bar exam wins Tisha Be'av reprieve
 
Bar exam wins Tisha Be'av reprieve
TOM TUGEND
May. 10, 2004
 
The State Bar of California, yielding to an eight-month lobbying effort, will excuse observant Jews from taking the bar examination on Tisha Be'av, on July 27.
 
Reversing an earlier denial of the request, the Committee of Bar Examiners rearranged the schedule so that Tisha Be'Av observers can take the first portion of the three-day test on July 28.
 
"It shows that the state bar has a heart, though it's sometimes hard to find," commented Prof. Laurie Levenson of the Loyola University law school.
 
Others would credit two very persistent Jewish lawyers, who wouldn't let the matter rest, and timely pressure by state legislators and civil rights groups.
 
Under the committee's ruling, Tisha Be'Av observers must file a statement from a rabbi confirming the applicant's religious beliefs and a petition promising not to contact or seek information from those taking the same exam on July 27.
 
The whole matter would have likely have slipped under the radar but for attorney Baruch C. Cohen, an Orthodox Jew.
 
In late August of last year, he was casually checking the dates for the 2004 bar exam, when the July 27 date raised a red flag.
 
He immediately sent a letter to the state bar's admissions office, explaining the significance of Tisha Be'Av.
 
"It is a day of Jewish travail, a day of national Jewish mourning for the destruction of the holy Temples and for all the tragedies of our long history," he wrote. "On Tisha Be'Av, it is prohibited to eat [for 24 hours], drink, bathe or wash, anoint oneself, cohabit, wear leather shoes, listen to music, or learn Torah.
 
"The California bar examination is challenging enough as it is. It must be hard to imagine what it must be like to take the grueling exam, while fasting and not showering since the night before –– [the observant test taker] will have the added distraction of hunger, discomfort, and mourning to detract from his/her performance."
 
Two weeks later, Roberta Scharlin Zinman, also a Los Angeles lawyer, joined the fray and sent her first letter to the state bar.
 
She pointed out that four other states –– New York, New Jersey, Illinois, and Missouri –– permit observant Jews to postpone the state portion of the test, nationally taken on July 27.
 
Zinman, who describes herself as non-Orthodox but "a proud Jew and a proud lawyer," also argued that provisions for changing test dates are available to persons with physical disabilities.
 
The Los Angeles Daily Journal, the trade publication of the legal profession, began its close coverage of the controversy, and other lawyers and a number of rabbis made their voices heard.
 
In November, the American Civil Liberties Union, on behalf of the Progressive Jewish Alliance, the Muslim Public Affairs Council, and a Christian clergyman asked the state bar to take up the Cohen and Zinman requests.
 
Nevertheless, on April 1, with the deadline looming to apply for the bar exam, the admissions committee formally refused to accede to the Tisha Be'Av exception.
 
Jerome Braun, the committee's senior executive, told the Journal that the bar couldn't "review personal beliefs and practices" for each of some 13,000 test takers, and that "we can't tell the distinction between people with genuine religious beliefs and others seeking an extra day of test preparation."
 
An infuriated Zinman now turned to the state legislature and asked Assemblymen Alan Lowenthal and Paul Koretz for help.
 
Lowenthal gathered the signatures of 45 legislatures to his stern letter, which apparently got the attention of the bar's board of governors.
 
In mid-April it issued an "emergency" policy instructing its committee to offer "reasonable accommodations" if an exam date conflicted with a religious holiday.
 
On May 1, the 19 members of the bar examination committee met in a downtown hotel and unanimously reversed itself, approving the Tisha Be'Av accommodations.
 
Zinman said she is happy with the outcome, noting "I believe it is the first time the state bar has moved to accommodate religious applicants."
 
To avoid future conflicts, she volunteered to send a Jewish calendar to the state bar.

Jewish Law Home Page


Copyright 1997-2008 by Ira Kasdan. All rights reserved.
DISCLAIMER