After three grueling years of law school, aspiring attorneys have one last hurdle to overcome in order to practice law: the bar exam. In normal times, the bar exam is daunting, as the multi-day test determines the professional fates of lawyers-to-be. This year, with the COVID-19 pandemic raging, the bar exam has gone from being unnecessarily burdensome to unnecessarily deadly.

Some states have granted bar admission to graduates of accredited law schools — a policy known as “diploma privilege.” But others are plowing ahead with exams — in-person or remote, on time or delayed. The policies and procedures for these exams are in constant flux. And the civil rights and civil liberties issues presented by this year’s bar exams are extensive.
This year, states are limiting law grads’ access to menstrual products and opportunities to pump breastmilk during the bar exam. This policing of when someone can change their tampon or if and when someone can pump raises serious sex discrimination concerns. 

Take the West Virginia bar exam, for example. “Feminine hygiene products” are explicitly prohibited in the testing room. Instead, the West Virginia Board of Law Examiners (WVBLE) requires those who are menstruating go to proctors to retrieve tampons or pads during the all-day exam. In response to rightful confusion from West Virginia bar examinees, the WVBLE has since stated that “there is no prohibition on bringing menstrual products to the test,” but it remains unclear if test takers can have the products with them in the testing room or not. 

Montana’s policy is even worse: Menstrual hygiene products are not included in the list of permitted items (although “medical items” are allowed), and the exam instructions do not otherwise indicate that these products will be provided to test-takers. And in Nebraska, one examinee was told that she needed permission in order to change her tampon more often than every two hours.

The notion that anyone can use a tampon to cheat would be laughable if it weren’t being used to disadvantage menstruating test-takers. In any event, other states have allowed examinees to bring menstrual products into exam rooms for years without incident.

States are also putting up unnecessary roadblocks for test-takers who are lactating. For example, administrators in Oklahoma refused to extend the 15-minute break for one woman to pump, even though that isn’t nearly enough time to prepare the equipment, pump, and clean and sanitize the equipment. Sadly, this problem isn’t unique to the pandemic: exam administrators have long created roadblocks for menstruating and breastfeeding test takers. But this creates further barriers to new parents entering the legal profession who are already facing an unprecedented lack of childcare.

Blocking access to menstrual products and opportunities to pump breastmilk during the bar exam is also a gender equity issue. First, more often than not, menstrual products are placed in women’s restrooms only. Failing to provide menstrual products in facilities that are accessible to everyone who needs them, including some transmen and non-binary people, leaves some test takers with no access to necessary products at all.

Also, what products will be provided? Menstruation is different for everybody, and those who menstruate know the products that work best for them. Not to mention the privacy concerns raised by needing to disclose personal medical information to proctors. Test takers who are breastfeeding are similarly negatively affected when exam administrators refuse to allow them to safely express breastmilk during the exam at an appropriate time and place, effectively preventing many new parents from sitting for the bar.

Bar examiners should be working to make the legal profession more accessible to those who already face barriers to success in the legal profession — including women, trans and non-binary people, and new parents — not less. Fortunately, some states have already reversed course in response to public outcry. But it shouldn’t take going viral on Twitter for all students to be able to sit for the bar exam in safety and dignity.

Anna Jessurun, Legal Intern, ACLU Women's Rights Project

Since the protests decrying the murder of George Floyd began in May, the institution of American policing has taken center stage. Activists are calling for change, and the phrase “defund the police” can be heard in cities across the country. As the concept of slashing police budgets and reinvesting those resources into Black and Brown communities goes increasingly mainstream, a more radical call is also gaining attention: Abolish the Police.

On At Liberty this week, attorney, author, researcher, and organizer Andrea Ritchie and senior staff attorney for the ACLU’s Trone Center for Justice, Carl Takei, joined us to talk abolition, divestment, and what a world without police might look.

“[Abolition is] about recognizing the instinct in all of us to punish people who hurt us, or to seek retribution instead of repair, and to acknowledge that actually in order to create a society that is free from violence, we have to move away from mobilizing the state and giving the state a monopoly on violence to respond to violence,” says Ritchie. “Instead, we need to dig to the root causes of violence and transform those conditions and causes, such that we can all have an opportunity to live in a world free of violence, not just people who are in positions of privilege in the current political, social, economic structure.”

Should We Abolish The Police?

Should We Abolish The Police?

Since the protests decrying the murder of George Floyd began in May, the institution of American policing has taken center stage. Activists are calling for change, and the phrase "defund the police" can be heard in cities across the country. As th...

Since the protests decrying the murder of George Floyd began in May, the institution of American policing has taken center stage. Activists are calling for change, and the phrase "defund the police" can be heard in cities across the country. As th...

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In the past week, unidentified federal officers in camouflage fatigues, labeled only “police,” abducted people off the streets of Portland in unmarked vehicles and threatened the “Wall of Moms” standing up for our Constitution. The administration later confirmed the unidentified officers were Border Patrol agents.  

This blatant demonstration of unconstitutional authoritarianism is demonstrating to the entire country the cruel capabilities of the U.S. Border Patrol. For communities that have historically borne the brunt of Border Patrol’s abuses — and still do — seeing these agents pose as a “secret federal police” force on the streets of Portland is no surprise. The Department of Homeland Security’s (DHS) Customs and Border Protection (CBP) agency, which includes Border Patrol, has been conducting secret, violent arrests of immigrants for years.    

CBP is the largest federal law enforcement agency in the United States, with nearly 20,000 Border Patrol agents across the country. CBP, in fact, has the largest law enforcement air force in the world — roughly equivalent to the size of Brazil’s entire combat air force — including fleets of planes, helicopters, and Predator drones. 

CBP and Border Patrol have expanded rapidly for almost 20 years, since CBP was relocated into the then-newly formed DHS. Fueled by unprecedented funding from Congress, Border Patrol’s abuses have grown increasingly violent and common. Their militarized over policing of border communities is deeply rooted in the nation’s history of over-policing of Black and Brown people. 

At least 102 people have died as a result of encounters with Border Patrol in the last decade. Six of these deaths were caused by Border Patrol agents shooting across the border into Mexico — murders met with complete impunity. The agency also lacks basic accountability practices: No agent has ever been convicted of criminal wrongdoing while on duty, despite deaths in custody and uses of excessive, deadly force. Border Patrol agents engage in criminal activities outside their official duties at five times the rate of other law enforcement agencies’ officials. The agency’s discipline system is broken and agency leadership has not weeded out corrupt agents. As James Tomsheck, CBP’s former internal affairs chief, described the agency’s culture: It “goes out of its way to evade legal restraints” and is “clearly engineered to interfere with [oversight] efforts to hold the Border Patrol accountable.” 

U.S. border communities have long understood the cruel capacity and impunity of this rogue agency. Witness El Paso, Texas. In the last month alone, a Border Patrol chase resulted in the deadliest crash in the city’s history, killing seven people, including four locals. In separate incidents also this month, a Border Patrol agent ran over a migrant with his vehicle and deported the survivor before local reporting exposed the incident, and Border Patrol found a woman dying at the base of President Trump’s border wall and side-stepped investigating or reporting her death. These grotesque examples are in addition to the thousands of children and families subjected to rape, kidnapping, or disappearance after being subjected to CBP’s unlawful asylum policies, or the horrors of Border Patrol’s systematic abuse of migrants in its custody. 

While Border Patrol’s foundation of overreach and culture of cruelty predates President Trump, this administration has boasted that it took the proverbial “handcuffs” off the agency, fueling even more abuses and trampling the rights of migrants and border residents alike.

Since June, in response to nationwide protests against the murder of George Floyd, CBP deployed surveillance drones and helicopters over U.S. cities, including Buffalo, New York, Minneapolis, Miami, Chicago, and Philadelphia. CBP personnel flooded the streets of Washington, D.C. and other cities, with zero transparency around the agency’s mission, claimed authority, or any accountability for misconduct. As CBP officials cracked down on protesters in Portland, an internal DHS memo expressed the agency’s own concerns that CBP lacks the necessary training to respond to crowds or protests. Even with this knowledge, DHS has deployed these officers into our streets, with complete disregard for potential consequences. 

Now, the administration appears poised to expand its deployment of federal forces to what it calls “Democrat-run cities” across the country, including 150 agents to Chicago this week, risking another unconstitutional nightmare of police violence. This is a mistake that could prove lethal.

This month, the House of Representatives took important first steps in cutting funding to CBP and other immigration enforcement agencies. But reining in the nation’s largest and least accountable law enforcement agency will require divestment from the nation’s massive border agency, and reinvestment in Black and Brown communities. Just this week, DHS announced it is transferring funds, allocated for accountability measures, to pay for a surge in unaccountable CBP staffing and paychecks. This is unacceptable and dangerous. We must collectively dismantle the systems of racism and xenophobia that have allowed Border Patrol — with its bloated budget, overbroad authority, and staff of unaccountable agents — to terrorize and kidnap protesters from the streets of Portland and undermine the civil rights and liberties of all American communities, near and far from the border.

Andrea Flores, Deputy Director of Policy, ACLU's Equality Division,
& Shaw Drake, Policy Counsel, ACLU Border Rights Center