What is “good moral character” and who defines it? Is it defined by religious texts? By national leaders? By one’s parents? What if I told you it’s dictated by a committee of attorneys, judges, and other legal professionals appointed by each state bar?
One of the most nerve-wracking parts of the bar admissions process for new applicants is the Character and Fitness Test. Currently, all states require applicants to make a showing of good moral character in order to be admitted to the bar. Character and fitness tests are essentially a background check administered by each state: one which requires an applicant to demonstrate good character by answering questions about school discipline records, law enforcement encounters, debt and unpaid loans, child support payments, disability (including information about
“mental or emotional instability”), and any “
prior conduct incompatible with that expected of an attorney.” Applicants may also be tasked with providing character witnesses. The exam further claims to evaluate applicants on their honesty, trustworthiness, diligence, and reliability. Unsurprisingly, character and fitness tests are rife with problems. The blatant and problematic presumption that people with disciplinary records or unpaid debt are untrustworthy or dishonest aside, outdated and discriminatory character and fitness tests adjudicate applicants based on ability, race, and class.
While demographic information on who fails the character and fitness tests is not publicly available, we can assume based on the heavily coded questions of the test. Who is most likely to default on a loan? What population of people is most likely to be penalized for failure to make child support payments? What population is most likely to have a negative encounter with law enforcement, resulting in an official record? Which groups are disproportionately disciplined by schools? Who is most likely in a time of crisis, to have their mental health criminalized, resulting in a legal or school disciplinary record? In 2022, activist coalition Unlock the Bar’s
survey of each state’s Character and Fitness evaluation found that “across jurisdictions…the same types of inquiries… target applicants for the consequences of living as an oppressed person within a systemically oppressive state.”
It seems that what these tests measure more than anything is the
likelihood that an applicant is BIPOC, is lower class, and has a
disability or mental health diagnosis.
Character and fitness questions also pose an issue to freedom of speech and freedom of association, which prohibits states from punishing people based solely on their political beliefs. While states are able to inquire into Bar applicants’ political beliefs, the questions must be standardized and the least restrictive. In
Baird v. State Bar (where the Arizona Bar asked about an applicant’s previous affiliation with the Communist Party) and
In re Stolar (where an Ohio applicant was asked to list all organizations to which he’d been a member in law school), the Supreme Court held that “
views and beliefs are immune from bar association inquisitions designed to lay a foundation for barring an applicant from the practice of law.” The Court upheld “good moral character” inquiries, but drew the line at states assessing character and fitness by investigating applicant’s views and associations. The court found that such requirements chilled law students' exercise of their First Amendment rights. Additionally, unchecked inquiry into an applicant’s political affiliation or action is a textbook freedom of association violation. The First Amendment protects one’s right to expressive association, up to and including political activism or protest, and the right to privacy in exercising that right. Abridging these rights for some applicants but not others is nothing short of discrimination.
Considering that First Amendment chilling effects are arguably more important now than they’ve ever been, it’s time to reevaluate how we assess “good moral character” and whether such an evaluation is needed at all. According to the Supreme Court, “good moral character” is vague by definition: it’s defined by the “
attitudes, experiences, and prejudices of the definer,” who is whichever legal professional sits on the character and fitness board of the state seeking to define it. By forcing applicants to disclose and be judged by their political associations, or by situations that are overwhelmingly determined by race, ability, and income in the name of “good character,” character and fitness tests are unconstitutional at best and outright discriminatory at its worst. In practice, it dissuades applicants with unpopular political beliefs, criminal or juvenile records, or
mental health diagnoses from
entering the legal profession.
This allows the Bar to perpetuate existing dynamics of power and exclusion but applying arbitrary and elitist “professional” standards to Bar applicants that are motivated by racism. It also has a chilling effect on those who seek to become lawyers with radical political beliefs. It’s unclear the line between juvenile legal involvement, radical politics, and “bad character.”