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In April, the Supreme Court of Texas created a second date at which the Texas Bar would be administered. Applicants had the choice to sit for the regularly scheduled July session, or sit for an additional session in September. Since then, the COVID-19 situation in Texas has escalated.

The Dean of every Texas Law School (including my own) urged the Supreme Court to modify the schedule. The Deans proposed three options. First, a shortened version of the exam should be administered online. Second, the Court could adopt an “apprenticeship system that would permit licensure upon the completion of a certain number of hours of supervised practice.” Third, the Court could grant a “a one-time diploma privilege option for graduates of our law schools.”

Today, the Supreme Court of Texas issued an emergency order that largely followed the first proposal. But the Court fragmented. The majority of the Court agreed to cancel the July sitting, and maintain the September sitting. A majority of the Court also ordered an “online examination” for October:

The Board should administer an online examination on October 5-6, 2020, that includes: 100 Multistate Bar Examination questions, 1 Multistate Performance Test question, the Procedure and Evidence questions, and 12 Texas essays questions. The October bar examination will be weighted as determined by the Board. The Board reports that it will likely release scores from the October bar examination by December 4.

Applicants can choose to sit for the in-person exam in September, or the online exam in October. There is no penalty for switching. (I am fairly confident most students would choose the latter option).

The order explained:

Although individual Justices may have preferences for additional options, a majority of the Court agrees upon these options.

Beyond that statement, the Court was fragmented. Eight of the nine Justices wrote separately.

Justice Guzman (an alumna of South Texas College of Law Houston) and Justice Lehrmann (who recently recovered from COVID-19) concurred. They raised some concerns about what it would mean to eliminate a licensing requirement, and found that online testing was a safe alternative in the current environment:

JUSTICE GUZMAN and JUSTICE LEHRMANN concur, noting that (1) discussions about altering licensing requirements for admission to the legal profession are important and ongoing through the Court’s work with the ABA Commission on the Future of Legal Education; (2) eliminating a licensing requirement raises consumer-protection concerns, and any systemic reforms should not be undertaken without thorough vetting and input from all stakeholders, especially the public; (3) among the available alternatives to in-person testing, an online bar examination provides a reasonable and safe alternative that aligns more closely with our longstanding licensing requirements; (4) online testing has been successfully employed as an alternative to in-person testing by national testing organizations, like the College Board’s Advanced Placement Program, and public and private schools throughout this State; and (5) the law school community should help fill the void for applicants who do not have access to reliable technology or adequate facilities to take an online test.

Justice Boyd would have given applicants six options:

JUSTICE BOYD concurs in part, but would require the Board to offer and to allow each applicant to choose between (1) the in-person examination currently scheduled for July 2020, (2) the in-person examination currently scheduled for September 2020, (3) the October 2020 online examination described in this Order, (4) an apprenticeship-admission process, and (5) a diploma-privilege-admission process, in addition to (6) the supervised-practice option to delay admission as described in this Order; and would in addition require that each applicant’s State Bar of Texas license, membership records, and online attorney profile clearly indicate whether the applicant gained admission to the Bar through examination, apprenticeship, or a diploma privilege.

I don’t understand why anyone would choose to sit for the exam, when they could be admitted through a diploma privilege. Or are options (5) and (6) combined? The phrasing is unclear. In any event, those who are admitted through the “diploma privilege” route would forever be marked with a Scarlet Letter on their bar license.

Justice Blacklock concurred with the Court’s order. He but would have left the July bar in place:

JUSTICE BLACKLOCK concurs but would also give all those currently scheduled to take the in-person July bar examination the option of doing so as planned.

Some students are studying for the July Bar, and are ready to take it. Being forced to wait for September would delay their results, and prevent them from obtaining employment. Indeed, many students may lack the funds to continue in a state of limbo till November or December, when the results will be released. Justice Blacklock’s proposal may seem callous, but is actually considerate.

Justices Busby and Bland, the two newest members of the Court, would give applicants the option of an apprenticeship program.

JUSTICE BUSBY and JUSTICE BLAND concur but would also allow applicants to select an apprenticeship option providing for licensure upon completion of a period of supervised practice.

Finally, Chief Justice Hecht and Justice Green, the two most senior members of the Court, dissented. They would have adopted the diploma privilege.

CHIEF JUSTICE HECHT and JUSTICE GREEN dissent and would direct the Board of Law Examiners to adopt a diploma privilege in lieu of the bar examination for those registered to take it in July and September 2020.

If my math is right, Justice Devine (also an alum of my law school) did not write separately.

What a fascinating decision.

Update: In April, I offered some caution about holding an online exam.

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There’s a righteous anger driving protests against police brutality in the U.S. But an effort on the left to radically redefine “violence” threatens to alienate people who are attached to a more conventional understanding of that word and trivializes the very real reasons why they’re protesting. A demonstration that hinges on an anti-violence orthodoxy needs to employ a coherent definition of their central tenet, should they not want to undermine their own movement.

The leftist case for redefining “violence” relies on two main arguments: damaging a person is morally more serious than damaging an object, and psychologically damaging a person is worse than physically damaging an object.

“One reason it’s important to maintain a clear concept of what violence is and isn’t, is because true violence is such a deeply terrible human experience,” writes Nathan J. Robinson at the socialist magazine Current Affairs. “Actual violence leaves people with brain damage, nightmares, disability, and trauma. The destruction of human bodies is a moral horror that simply cannot exist in the same category as the breaking of objects. Using the word ‘violence’ to describe the smashing of a window (which is, it should not need saying, incapable of feeling pain) diminishes the term.”

Journalists, pundits, and activists alike have made a case similar to Robinson’s in dismissing criticism of rioters and looters who have damaged buildings and businesses around the country during protests against police brutality. “Violence is when an agent of the state kneels on a man’s neck until all of the life is leached out of his body,” Nikole Hannah-Jones, the driving force behind The New York Times’ 1619 Project, told CBS News last month. “Destroying property, which can be replaced, is not violence. To use the same language to describe those two things is not moral.”

Hannah-Jones, Robinson, and many other supporters of the anti-police violence protests want to keep the media and America focused on state violence against black people, which is pervasive and chronic. Human lives are more intrinsically valuable than inanimate objects, but it does not follow that the destruction of property is insignificant, or that Americans who are concerned about that destruction are immoral or racist. Property is foundational to prosperity. Historical and institutionally racist barriers to obtaining property—like redlining—are a major reason why black wealth in America is a fraction of white wealth. While there is no shortage of concern-trolling about the destruction of black businesses during these protests, the fact is that black-owned businesses are less able to recover from property destruction.

You don’t need to see a black life as equal in value to a black-owned business, or to a building or a car, to be concerned about damage to all those things and resistant to people who say should only be concerned about one of them. Litigating which kinds of damage count as “violence” might scratch some kind of polemical itch, but it is not a useful way to build the kind of broad political consensus necessary to end, or at least, dramatically curb state violence against black people.

At the same time, some on the left are attempting to expand the definition of violence to cover acts and behaviors that very few people have historically considered to be violent. “Silence is violence” is a good example. “Racism isn’t a black problem. It’s a white problem, and their silence is violence,” Cherry Steinwender, executive director of the Center for Healing Racism, told the Houston Chronicle in a June 5 article titled, “‘Silence is violence:’ Why speaking up against racism speaks volumes.”

Yes, we should speak up against injustices when we see them. But to say that declining to participate in the debate over policing and race is equivalent to actual physical harm, while also insisting that it is immoral to classify arson as violence, is incoherent.

But the redefining effort does not end there:

• Julia Beck, a lesbian activist from Baltimore and former co-chair of the local LGBTQ Commission, was criticized and expelled from that group for resisting the city’s effort to replace “sex” with “gender identity” in certain policies. The Baltimore Transgender Alliance accused Beck of committing “violence against the transgender community.”
• A protest last Wednesday in Richmond, Virginia, saw people opposed to lifting COVID-19 eviction moratoriums on the grounds that eviction is literal violence. (That idea isn’t especially new.)
• deandre miles-hercules, a PhD linguistics student, told Vox in an interview that white people asking black people how to prefer to black people as a group is, well: “People tune in to this, ‘What is the word? Do I call you African American? Do I call you Black? What is the word that people are preferring these days? I know I can’t call you Negro anymore! So just tell me the word so I can use it and we can go on from there.’ But that lacks in nuance. And that lack of nuance is a violence.”
• To bring things full circle, consider the recent kerfuffle at The New York Times over Sen. Tom Cotton’s (R–Ark.) op-ed calling for military support in quelling the violent demonstrations that peppered some of the protests across the country. “Running this puts Black @nytimes staff in danger,” became a popular refrain on Twitter, repeated by a range of staffers at The Times. 

To review: not speaking is violence; speaking charitably but clumsily is violence; having an unpopular opinion or providing a platform for one is violence; insisting that both parties honor legally binding contracts is violence; burning buildings, smashing windows, and destroying businesses are not violence.

These attempts at redefinition are not just confusing, they are socially corrosive. In a heterogeneous society made up of an abundance of ethnicities, races, religions, sexual orientations, and perspectives, we need to actively work toward broad consensus not just to function, but to rally majority support for protecting minorities. This process has been and continues to be painfully slow for many members of the American project. In the case of George Floyd, Breonna Taylor, and countless others, the consensus took too long. They died waiting for their fellow Americans—many of them white—to reach the conclusion that our police are too powerful, too violent, and too unaccountable.

But there also seems to be an emerging consensus that what happened to Floyd and Taylor should not happen ever again. We need to build that consensus until it is reflected in our laws. Does the effort to redefine violence beyond recognition get us closer to that goal, or slow us down?

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A Florida police department is investigating officers who joked on camera about the protesters they shot with rubber bullets.

Body-worn camera footage obtained by the Miami Herald shows officers with the Fort Lauderdale Police Department (FLPD) shooting rubber bullets towards protesters during an anti-brutality protest on May 31 and then making jokes.

One officer is heard shouting, “Beat it, little fucker,” to a protester who appears to be hit after picking up a tear gas canister and throwing it back in the direction of police. At one point, another officer asks if the body-worn camera is on and then laughs that he “plugged his ass three fucking times.”

In a statement released this week, FLPD Chief Rick Maglione says that a longer video “clearly demonstrates our officers were under attack by a group of people who chose to use violence instead of peace to antagonize the situation.” Maglione also says the officers were “dealing with the chaos of a developing situation.”

FLPD has been criticized for its conduct during the May 31 protest. The department said it was fending off violent agitators in a city garage, but video and photos from the protest do not appear to back this version of events. The protesters appear to have remained peaceful until an officer was seen shoving a kneeling protester. Another police officer quickly stepped in to reprimand him and protesters began to throw water bottles in his direction. The situation escalated when more officers arrived on the scene. One protester was hit with a rubber bullet and suffered a fractured eye socket.

Like the protest in Fort Lauderdale, scenes of aggressive policing tactics at recent anti-brutality protests have renewed the debate around the use of rubber bullets.

The moniker itself is a bit misleading. These large, palm-sized munitions can contain metal cores and are covered by rubber, plastic, and other materials. And while “rubber bullet” suggests a softer impact, which is certainly the case when compared to a live round, this kinetic impact projectile can still cause penetrative injury.

When freelance photographer Linda Tirado described her experience of being shot in the eye with what she believed to be a rubber bullet at a Minneapolis protest, she said, “I was aiming my next shot, put my camera down for a second, and then my face exploded.” Protesters carried Tirado away from the scene. Following surgery, a doctor informed her that her vision was not likely to recover.

An American Civil Liberties Union fact sheet breaks down the risks by body part. This includes potential blindness or brain injury if shot in the eye, bleeding if shot in the abdominal region, and lacerations, though the rounds aren’t marketed as intended to break the skin. While described by law enforcement as “non-lethal” or “less than lethal,”  documentation on social media proves these rounds can cause gruesome injuries. 

In an article debunking myths about rubber bullets, Inverse found that about 15 percent of injuries caused by the projectile resulted in permanent damage, especially when a person is struck in the head or neck.

Manufacturers advise that these projectiles should only be used for the lower extremities. Some departments, like the Minneapolis Police Department, mandate in their policies that “large muscle groups in the lower extremities including the buttocks, thigh, knees” should be the intended target for 40mm less-lethal rounds. The MPD even notes that targeting other areas such as the “head, neck, spinal cord, groin and kidneys” can cause “injury that can lead to a permanent physical or mental incapacity or possible death.”

The FLPD body camera footage and the documented damage from these projectiles around the U.S. demonstrate that law enforcement agencies need to find safer alternatives for crowd control.

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On June 19, the mayor of Cottonwood, Arizona, unilaterally ordered city residents to wear face masks in public places. A week later, my family went downtown to grab some lunch at a favorite barbecue joint. The proclamation might as well have never been issued; we were among the very few people wearing masks on the street or in the stores.

The residents of Cottonwood aren’t alone; compliance with orders from on-high is losing popularity across the country. One of the COVID-19 pandemic’s legacies may well be an overwhelming public fatigue with being told what to do.

Truthfully, Cottonwood Mayor Tim Elinski couldn’t have handled the mask order any more poorly. His order came after he lost a vote on the issue—which he admitted after the fact that he had held only because he thought he would win. The end result, then, was predetermined; he just didn’t get the cover he’d anticipated from the city council. That annoyed people as much as the mask mandate itself.

It didn’t have to be that way. A few days later I watched a woman stop in front of a sign posted in front of the local Safeway. She reached into her purse, pulled out a mask, and then entered the supermarket with her face covered as requested. As I watched, a steady stream of people mostly did the same. Asking nicely proved more effective than government commands at getting people to don masks.

But governments aren’t about asking; ordering is what they do. And they’re getting a lot of pushback.

Even at the beginning of the pandemic, when fear and uncertainty were at their height, many Americans worried that they would lose more to economic stagnation and social isolation than they gained from society-wide lockdowns. Closing businesses and banning gatherings might slow the spread of disease, but it also chokes off commerce, kills jobs, and sends people to the brink of despair.

“We’re trying our best to stay afloat,” the owner of a hair salon in Placer County, California, said at the end of April as she prepared to defy the state lockdown. “We had to open the shop because our families are depending on us.”

That salon owner was joined by many others across the country who defied rules in order to put food on the table. And they’re often willing to forcefully tell authorities where to get off.

“Frustrated small-business owners have turned to heavily armed, militia-style protesters … to serve as reopening security squads” to deter government officials from enforcing closure orders, The New York Times reported in mid-May. Disobedience morphed into open rebellion as people chafed against draconian commands and the resulting dwindling bank accounts.

It isn’t only a matter of dollars and cents, either. In New York City, parents sick of confinement at home and unable to legally let their children blow off steam in playgrounds “cut the locks and chains on gates that had kept them closed for months,” according to the New York Daily News.

Likewise, Santa Cruz County, California, reopened its beaches last week because people ignored lockdown orders. “It’s become impossible for law enforcement to continue to enforce the closures,” admitted Santa Cruz’s health officer, Gail Newel. “People are not willing to be governed anymore in that regard.”

Americans’ unwillingness to be governed any further by officials who responded to the pandemic with a series of botched policy initiatives, personal exemptions, and seemingly arbitrary commands to the public is understandable. Why would you take orders from people who seem to have no idea what they’re doing and clearly don’t intend to follow the rules themselves?

Besides, it’s not at all clear that the myriad dictates from authorities helped slow the spread of COVID-19 as promised. That’s not to say they were entirely ineffective—experts debate the impact of the orders. But “months of mixed messages have left many exhausted and wondering how much of what they did was worth it,” as a report in The New York Times concedes.

That uncertainty comes at a high price. Economic activity in the U.S. is expected to drop by about 8 percent this year, with a decade to come of reduced prosperity. Research suggests that government efforts to offset this economic carnage did little to preserve employment or to help the businesses most affected by people’s reactions to the pandemic —both government-mandated and voluntary.

Yes, voluntary! As exemplified by the mask-wearers I saw entering Safeway, people are capable of responding on their own to requests and to personal health concerns. Analysis of cellphone data shows that Americans not only resumed moving around well before lockdown orders were lifted, they had also curtailed their movements before being told to do so. Once again, asking nicely may work better than issuing orders.

Of course, voluntary curtailment of economic and social activity has costs, too. But costs that result from individual decisions are unlikely to spark the resentment and rebellion that we get in response to mandates.

Yet more mandates are what we’re getting. With cases of COVID-19 up (though death rates are down), many states are tightening the screws again on economic and social activity. But with growing numbers of people fed up with the frustrations and costs of lockdowns, and pretty much over being told what to do, it’s unlikely that we’ll see even the incomplete compliance that the pre-fatigue early days of the pandemic brought us.

That’s unfortunate, because some measures to combat the pandemic might well be good ideas despite the best efforts of officials to provoke us into defiance with ill-considered commands. Wearing masks, improving hygiene, emphasizing curb-side and delivery services, and increasing social-distancing could help to slow the spread of COVID-19 so that medical facilities aren’t overwhelmed, at least until vaccines and better treatments become available. The unmasked shoppers and diners in downtown Cottonwood effectively demonstrated the mayor’s impotence, but they may not have done themselves any favors.

But I suspect that the days of widespread compliance with do-it-or-else mandates meant to curb COVID-19 are over. Government officials will have to go against their instincts and learn that, instead of commanding, they have to be satisfied with the results of polite requests.

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