The proposal that would open the Indiana bar exam to graduates of Concord Law School, the online J.D. program that is part of Purdue University Global, has some in the legal community wanting to know: If Concord grads get a seat, will Indiana also have to make room for graduates of other online, non-ABA accredited law schools?
Members of the working group assembled by the Indiana Supreme Court to review the Concord proposal posed the question after a presentation by Concord dean Martin Pritikin. Specifically, they wanted to know if non-Concord graduates could sue Indiana under the claim that the Constitution’s Dormant Commerce Clause prohibits the state from providing access to the bar exam to only the Purdue-affiliated law graduates.
Purdue’s answer came just before the working group’s final meeting, according to the written report submitted to the Supreme Court Feb. 15. A footnote in the report states that in answering the constitutional question, Purdue changed its proposal to make it “substantively different” from the proposal the group had been assessing since September 2022.
The contents of Purdue’s submission presented to the working group Feb. 7 are not being made public.
John Maley, a partner with Indianapolis law firm Barnes & Thornburg who helped to draft the Purdue submission, declined to provide a copy to The Indiana Citizen, citing attorney-client privilege. Also, the working group chair, Judge Nancy Vaidik of the Court of Appeals of Indiana, did not provide details but she did say that along with asserting the proposal was constitutional, Purdue revised its original request submitted to the Supreme Court in April 2022.
“They changed the proposal 100%,” Vaidik said.
According to the footnote, Purdue’s answer “seems to suggest” the accreditation requirement could be removed from the state’s rules for licensing attorneys. The footnote indicates that Purdue’s original proposal included the requirement that individuals wanting to sit for the Indiana bar must have graduated from a law school accredited by a state, regional or national body.
Currently, Indiana permits only graduates of law schools accredited by the American Bar Association to take the bar exam. Concord is accredited by California but not by the ABA, in part, because it is a fully online program.
Vaidik said the working group did not have time or the resources to do its own legal analysis of Purdue’s February proposal. So the group based its report on the original proposal. In addition, it inserted the footnote into the report and made the recommendation that the Supreme Court assure that there are no constitutional issues.
“I said, ‘Let the Supreme Court due their due diligence. We can’t give a legal opinion as a working group,’” Vaidik explained.
The last minute submission from Purdue prompted four members of the working group to write a letter to Indiana Supreme Court Chief Justice Rush. They declined to make their letter public.
However, Cynthia Baker, professor at Indiana University Robert H. McKinney School of Law and one of the working group members who wrote the letter, told The Indiana Citizen, “Our letter of late February urged the Court to open the proposed rule revisions to a formal public comment period. In addition, it pointed out that the proposed rules’ revised language of Purdue Global’s 2/7/23 legal brief appears to be in response to the dormant commerce clause and other constitutional issues raised by the initial (?) April 2022 proposed rule language.”
The Supreme Court opened a public comment window on the potential changes to three rules for admission that would enable Concord graduates to apply for an Indiana law license. That window closed April 21 with nearly 150 comments being submitted which were evenly divided between supporters and opponents of the proposal, according to the Supreme Court.
In the footnote, the working group emphasized that the new rules must include the requirement that the law school be accredited by a “body that accredits law schools.” The Supreme Court’s suggested changes do contain language about accreditation.
Under the Supreme Court’s proposed rules, the bar exam would also be opened to graduates of a law school that is affiliated with one of Indiana’s state supported colleges or universities and has a legal education program approved by the Indiana Commission for Higher Education. Moreover, the law school would have to be accredited by “one or more state, regional, or national bodies that accredit law schools specifically.”
Purdue stated it fully supports the Supreme Court’s proposed rule amendment, including the language on accreditation.
The provision requiring any non-ABA accredited law school to be affiliated with one of Indiana’s public higher education institutions is the buffer against a constitutional challenge based on the Dormant Commerce Clause, according to Maley.
Under the Commerce Clause in Article 1, Section 8, Clause 3 of the Constitution, Congress has the power to regulate interstate commerce. On a commerce issue or situation where Congress is “dormant” or has not passed specific legislation, the states are still prohibited from “adopting protectionist measures.”
However, Maley explained that under the market-participant doctrine, the Indiana Supreme Court can expand access to Indiana bar admission in this fashion. Under the proposed rule amendment, Indiana is a participant in the higher education market by supporting seven public colleges and universities across the state, and, therefore, may favor its schools in licensing regulations.
Maley added that this exception to the dormant commerce clause is well established by the U.S. Supreme Court, and was most recently applied favorably to Indiana in 2021 by the Seventh Circuit Court of Appeals in a case involving the Indiana Toll Road.
The case – Owner-Operator Indep. Drivers Ass’n v. Holcomb, 990 F.3d 565, 565-68 (7th Cir. 2021) – was filed by truckers angry by higher tolls on the Indiana East West Toll Road that transverses the northern part of the state. They asserted, in part, the new toll structure violated the dormant Commerce Clause. A unanimous 7th Circuit panel ruled the toll increase was constitutional because Indiana is a participant in the market.
Tennessee’s rules of admission crack the door slightly for graduates of non-ABA accredited law schools to sit for the bar. However, the exemption is limited Tennessee law schools which have been approved by the Tennessee Board of Law Examiners and currently only the Nashville School of Law – which offers the state’s only part-time J.D. program – has gained approval status.
The Administrative Office of the Tennessee Courts did not provide any information by The Indiana Citizen deadline as to whether the state had been sued over its bar exam restrictions on non-ABA accredited law schools.
Andrea Chase, a 2011 Concord alumnus now living in Tennessee, is frustrated by what she described as a “protectionist idea” of banning certain law school graduates from taking the bar exam.
“Let the test show for itself, let’s see the results,” Chase said. “Give us the opportunity.”
Chase, co-founder and co-executive director of Solomon Family Solutions in Cleveland, Tennessee, uses her legal skills to help families struggling with divorce, child abuse, domestic violence, substance addiction and poverty. However, even though she has a law degree and is licensed to practice in California, she is not allowed to sit for the bar in Tennessee and she is not able to provide legal advice or representation to her agency’s families.
With a degree from Concord, she was only eligible to take the California bar. She said her score the first time was high enough to have passed the Tennessee bar but she had to take the California exam five times and earned a provisional license in 2018 when the state lowered the score needed to pass.
Chase decided to pursue a law degree when as the mother of 5-year-old twins, she was going through a contentious divorce and her money to pay for legal counsel dissipated. She realized both the necessity of legal help and the difficulty in obtaining it.
Concord offered the flexibility to raise her children, work and still study for a J.D. degree — even if she had to watch the recording of the class at 2 a.m.
She continued her studies through a remarriage and relocation from San Diego, California, to Chattanooga, Tennessee. After she passed the California bar, she worked for 300 hours at the Family Violence Appellate Project in Oakland, California, where she was able to combine her previous education in forensic psychology with her law school training to prepare briefs and legal analysis.
Chase encouraged Indiana to open the bar exam to Concord graduates, saying the online law school is producing lawyers who can serve the individuals and families that might not otherwise have legal representation.
“You’re going to have a pretty good pass rate which is then going to allow for more attorneys to serve the 70% of civil litigants that can’t afford representation or don’t have representation,” Chase said, citing statistics from the Legal Services Corporation. “The national numbers like that where 70% of folks are going unrepresented is absurd and it’s ridiculous. It goes completely against everything American I can think of.” — Marilyn Odendahl