Tenacity Unrewarded In Efforts To Pass Bar Exam

The Utah Supreme Court has held that a bar applicant failed to demonstrate good cause to sit for the admission examination after prior failed attempts

Jennifer Long has taken the bar exam twelve times across three jurisdictions. She has yet to achieve a passing score and now wishes to take the test again. Our rules limit applicants to six attempts unless they can show good cause why they should be permitted to exceed that cap. The Utah State Bar denied Long’s request to retake the exam, prompting her to seek review in this Court. We agree that she has failed to demonstrate good cause and deny her relief.

Facts

Long was born without a right hand and has attention deficit hyperactivity disorder (ADHD). With accommodations for ADHD (additional time and an isolated or reduced-distraction room during examinations), she earned a bachelor’s degree in 2001 and a Juris Doctor in 2004.

For a few years following her law school graduation, Long took the bar exam each time it was offered, for a total of nine attempts across three states—Utah, Missouri, and Kansas.

Long did not receive accommodations for her first six attempts, in Utah and Missouri. She requested accommodations for four of the six. But, for reasons not appearing in the record, Utah and Missouri denied her requests. For the remaining two attempts, Long did not request accommodations, later explaining that prior denials had discouraged her from doing so.

Long did receive accommodations for her next three attempts, all of which took place in Kansas. The accommodations she received were typical for someone with ADHD: extra time and a distraction-free environment. Long did not request any other accommodations. In fact, she told the Kansas Bar that she did “not need any special accommodations for [her] physical condition.”

Long did not attempt to take the exam again for fifteen years. She then applied to take the July 2023 exam in Utah. The Utah State Bar (the Bar) denied her request, explaining that she had exceeded the six attempts permitted by rule to all applicants. (Citing SUP. CT. R. PRO. PRAC. 14-711(f).) The Bar further informed Long that she might be permitted to exceed that cap if she filed a petition showing “good cause” to retake the test.

Long filed such a petition. In it, she argued, among other things, that she had never previously asked for accommodations for both her ADHD and her physical disability. For the July 2023 exam, she asked for double time, frequent breaks, a separate room, and the ability to handwrite her responses to the essay portion. This mélange of accommodations would, Long believed, provide her with a fair opportunity to succeed on the exam. Long accepted responsibility for her failure to request these accommodations previously, but she maintained that she “should not be denied the opportunity to sit for the bar exam merely because [she] did not have the understanding of [her] disabilities” she had since come to possess.

The Bar’s Admissions Committee granted Long’s petition and gave her each accommodation she requested. Long, however, did not pass.

Long petitioned to take the February 2024 exam with the same accommodations. The Admissions Committee again granted her request, but it “expressed hesitation about granting further requests.” Long again did not log a passing score.

Long next requested permission to sit for the July 2024 exam. In her petition, she explained that she had experienced “significant pain and swelling” in her hand during the February 2024 exam. She now believed that her ability to use her only hand was “deteriorating over time and with overuse” and wished to return to typing the written portions of the test.

This time, the Admissions Committee denied Long’s request. The Committee expressed sympathy for Long’s situation but stated that it did not agree that “establishing the need for different accommodation [was] sufficient good cause to grant [Long’s] petition,” especially since it had granted Long “each accommodation [she] requested” for her previous two attempts.

Long appealed the Bar’s decision. A review panel of the Admissions Committee affirmed the denial of her petition.

The court initially granted her the opportunity to take a sixth accommodated exam

After oral argument, this court notified the parties, in an order, that a majority of the court concluded that Long had established good cause to be permitted to take the bar exam for a twelfth, and sixth accommodated, time.

Later in the day after the order issued, Long’s counsel sent the court a letter. That letter recounted that “[u]pon contacting Ms. Long to inform her” of the court’s order, Long “informed counsel that she did not pass the Missouri bar exam that she took in February 2025.” The letter also noted that Long received accommodations and was permitted to type the essay portion. This was the first time the court learned that Long had already taken the bar for a twelfth time, including a sixth time with accommodations. Counsel acknowledged that the “number of times that Ms. Long has received accommodated attempts was key to counsel’s argument.” Counsel predicted, accurately, that “this information may affect the Court’s determination about whether Ms. Long has shown good cause to take the Utah Bar again.”

In light of the new information, the court rescinded its order and the instruction that Long be permitted another opportunity to take the bar exam. The court notified the parties that it would reconference on the case.

In light of this information

This case presents a scenario where it serves no purpose to defer to the Bar’s reasoning: a material event has intervened between the Bar’s process and the decision of this court. This is the sort of case where our unique structural relationship to the Bar enables us to take note of evidence that might escape analysis or require a remand to a lower body in another context. When we hear an appeal from a district court, our review is generally limited to the record of proceedings before that body. See Montes v. Nat’l Buick GMC, Inc., 2024 UT 42, ¶ 39 n.8, 562 P.3d 688 (“We do not consider documents that fall outside the appellate record, no matter how much they might pique our interest.”). But Bar proceedings do not necessarily demand the same treatment.

Long’s dilatorily disclosed February 2025 attempt at the Missouri exam changed our view of this case. Before we learned of it, a majority of the court granted Long’s petition because we agreed that she deserved six accommodated attempts to be put on the same playing field as applicants without disabilities. But Long has been afforded a sixth accommodated opportunity. This eliminates the factual premise of her primary argument before us and robs it of the persuasive value it once had.

Long’s remaining argument is equally unpersuasive in light of the new Missouri attempt. We are genuinely sympathetic to the challenges Long faces when taking the bar exam and her evolving understanding of the accommodations that might assist her. But we must note that Long has received precisely the accommodations she requested for each of her six accommodated attempts. Indeed, Missouri granted Long the specific change in accommodations Long requested of our Bar—a return to typed exams. We admire Long’s tenacity, but we cannot conclude, on the briefing before us, that she has demonstrated the good cause our rule requires to again retake the exam.

(Mike Frisch)