May 13, 2004
Bar Alters Test Date for Tisha B’Av
The State Bar of California, yielding to an eight-month lobbying effort, will excuse observant Jews from taking the bar examination on the mourning and fasting day of Tisha B'Av on July 27.
Reversing an earlier denial of the request, the Committee of Bar Examiners rearranged the schedule so that Tisha B'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 professor 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 B'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.
Before the current ruling on May 1, seven applicants had petitioned to be excused on Tisha B'Av.
The whole matter would have likely 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 Tuesday, July 27, date raised a red flag.
Cohen immediately dispatched a letter to the state bar's admissions office, explaining the significance of Tisha B'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 B'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, were permitting 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 were available to persons with physical disabilities.
Over the next months, she followed up with a barrage of lengthy letters, but, she said, "I kept bumping into one wall after another."
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. Kayla Schellemberg, a bar exam applicant whose family is Chasidic, also protested vigorously.
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 B'Av exception.
After the negative decision, Jerome Braun, the committee's senior executive, told the Daily 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."
Braun was also concerned about leaks of test questions and the logistics of arranging different test sites.
An infuriated Zinman now turned to the Legislature and asked Assemblymen Alan Lowenthal (D-Long Beach) and Paul Koretz (D-West Hollywood) for help. Both men responded energetically and Lowenthal gathered the signatures of 45 legislators to his stern letter.
That apparently got the attention of the bar's board of governors, which in mid-April 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 for the final decision. The meeting fell on a Saturday morning, so the only outside member of the public or the Jewish community present was a reporter for The Jewish Journal.
After an hourlong closed session, the "public" was admitted, and within five minutes, the committee unanimously reversed itself and approved the Tisha B'Av accommodations.
Zinman said she was happy with the outcome, though still worried whether all observant Jews, who might have decided to postpone their applications, would be notified of the new arrangement in time.
"This fight has been a painful experience," she said, "but 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.
Cohen praised the final decision as "the right result and the smart result." Though there might still be a few objections to some of the procedures, "if the state bar went this far, we should give it credit," he said.
What finally turned the initial negative decision around?
Speaking as chairman of the bar examination committee, San Francisco attorney Jonathan Wolff said briefly, "We had a thorough discussion, we decided to reconsider our previous decision and then approved the accommodation."
Lee H. Wallach, a public member of the same committee, who sat in on all the deliberations, said that the Tisha B'Av decision was "part of a process to develop a strategy for accommodating religious needs."
While others may "work more quietly through the system," said Wallach, a longtime Jewish community activist, he credited Cohen, Zinman and other letter writers with making sure that there "was no lack of understanding" of the issues by committee members.
Zinman and Cohen, for their part, credit mainly the pressure by legislators for the positive outcome.
Levenson of Loyola University phoned Cohen to congratulate him on the victory, and her observation to him may be the most valid.
"Sometimes it takes only one or two persons who really care to turn things around," Levenson said.
The petition and statement must be received by June 15. Detailed instructions are available at www.calbar.ca.gov under "Admissions."