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In the Matter of Bettine (11/13/92), 840 P 2d 994
Notice: This is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
In the Matter of the )
Application of: ) Supreme Court File No. S-4985
) ABA File No. 1991A002
FRANK J. BETTINE, )
) O P I N I O N
An Applicant for Admission to )
the Practice of Law in Alaska )
and Membership in the Alaska )
Bar Association. )
) [No. 3896, November 13, 1992]
Appeal from the Final Decision of the
Board of Governors of the Alaska Bar
Appearances: Frank J. Bettine,
Anchorage, Pro Se. Stephen J. Van Goor,
Anchorage, Alaska Bar Association.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton and Moore, Justices.
COMPTON, Justice, dissenting.
Frank Bettine appeals the decision of the Board of
Governors of the Alaska Bar Association (ABA) to deny his request
for a reread and regrade of his bar examination. He argues that
the ABA used mathematically incorrect grading procedures in
grading his essay exams and employed a reread policy which is
contrary to our decision in Application of Obermeyer, 717 P.2d
382, 388 (Alaska 1986). He also challenges the Board's grading
and reread policies on equal protection and due process grounds.
We affirm the Board's decision.
I. FACTS AND PROCEEDINGS
Mr. Bettine took the bar exam in the summer of 1991.
In late October, he was notified that he had failed. He scored a
total of 138.5 points on the examination, 1.5 points below the
required passing score of 140 points, and .5 point below the
score required for a "reread"of his exam. He received a
converted essay score of 141.0 on his ten essay answers and a
multistate bar examination (MBE) score of 136, which when
averaged produced a combined score of 138.5.
II. DESCRIPTION OF THE ALASKA BAR EXAM
In order to understand Bettine's allegations,
familiarity with some of the procedures used in administering and
grading the exam is required. The exam is a 2« day exam. One
full day is devoted to the nationally administered MBE. The rest
of the exam consists of essay questions. Three hour-long essays
are weighted at 30% of the total essay score, six half-hour
questions account for 45%, and a research/analysis practicum
accounts for the remaining 25%. The total essay score is given
50% weight, and the MBE receives the other 50%.
The grading procedures for the essay portion of the
exam are governed by Law Examiners Committee regulations.
Pursuant to these regulations, the graders first meet to
calibrate each particular essay question. At least five graders
read and individually score five randomly selected answers on a
scale of one to five. They repeat this process several times,
with each grader reading at least twenty exams, until the graders
agree on a set of answers that are representative of each of the
five possible levels. These "benchmark"answers are then used as
guides in assigning scores to the remaining papers. Two graders
score each essay. The graders are required to agree to within
one point on the score assigned to each question, meaning that
the graders must regrade questions until they agree within one
point. The two scores are then averaged to obtain the
applicant's score for the question.
Each applicant's essay scores are then weighted,
combined and converted to the same unit of measurement as the MBE
score, so that the essay and MBE scores can be combined for the
purpose of making pass/fail decisions. An applicant whose
combined score falls between 139.00 and 139.99 will have those
essays which received a "split"score reread by the two graders.
The graders may, but do not have to, change the score upon
reread. If upon reread an applicant's combined score is raised
to a 140.00 or above, the applicant passes the exam.
Failing applicants are notified in accordance with
Alaska Bar Rule 4(4) and are offered the opportunity to inspect
their essay examination booklets and grades, as well as a
representative sampling of answers from other applicants.
III. STANDARD OF REVIEW
Alaska Statute 08.08.130 and Rule 1 of the Alaska Bar
Rules require, as one of the preconditions to admission to the
Alaska Bar, that an attorney applicant take and pass a bar
examination given by the Alaska Bar Association. Under section 3
of Rule 1, the Board of Governors is responsible for
administering the bar exam. Alaska Bar Rule 6 provides a review
procedure which must be followed by applicants who wish to
challenge their failing grade. Pursuant to Rule 6, an applicant
who alleges facts which would establish "an abuse of discretion
or improper conduct on the part of the Board"is entitled to a
hearing. Rule 8 allows for supreme court review of any
interlocutory order of the Board of Governors. In Application of
Peterson, 459 P.2d 703 (Alaska 1969), this court wrote that an
unsuccessful applicant "carries a heavy burden in regard to any
attempted showing of abuse of discretion or improper conduct on
the part of the law examiners in the grading of examination
papers." Id. at 711.
IV. ISSUES ON APPEAL
There are two main issues on appeal. The first
question is whether the ABA used a mathematically incorrect
grading procedure in grading Bettine's exam. The second question
is whether the ABA's reread policy is contrary to law.
A. Grading Procedures.
Bettine argues that the ABA's grading procedure is
"fraught with arithmetic errors which will in many instances
yield incorrect test scores." The crux of his argument is that
it is error for the ABA to assign him scores with two significant
figures (1.0, 1.5, 2.0, etc.), when the graders are only allowed
to assign scores with one significant figure (1, 2, 3, etc.). He
If respondent desires to average the
applicant's essay raw score to within two
significant digits of accuracy then the
scores assigned by the examiners must reflect
at least two significant digits of accuracy.
Rounding off essay raw scores to a single
significant digit of accuracy and then using
these scores to calculate an applicant's
average score to 0.5 points of accuracy is an
incorrect and unacceptable mathematical
procedure. By rounding off the raw scores
during intermediate stages of computations to
single digit values, respondent is in fact
robbing Mr. Bettine out of a possible 0.5
points per essay question. If respondent
desires to employ a grading policy which
requires examiners to grade with a single
significant digit of accuracy, then
respondent at a minimum must implement a
grading policy which assigns the higher of
the two scores as the score for any question
where the examiners disagree by one point.
This policy would help to minimize the affect
[sic] of round off error on an applicant's
overall essay raw score, because an applicant
would receive the benefit of the higher score
for those questions where examiners are now
forced to round off during intermediate
stages of computations.
It is also important to recognize
that although the examiners assigns [sic]
scores at the essay raw score level accurate
to but a single significant digit, the
weighted essay scores for Part A, B and C of
the essay exam in addition to the applicant's
combined score, are calculated to five
significant digits of accuracy! It is not
possible to start a series of calculations
containing a number accurate to but a single
significant digit and arrive at an answer
with five significant digits of accuracy.
Bettine's Exhibit 1 illustrates that a variation of 0.5 from the
raw essay scores can have a great effect on the converted essay
score. To eliminate the potentially harmful effects of the ABA's
faulty grading procedure on him, he argues, his score should
either be rounded off to two significant digits, or 0.5 should be
added to Parts A, B and C of his essay raw scores. In either
case, he argues, he would achieve a passing score of 140 points.
Bettine also argues that, in addition to the "round
off"errors described above, "observation"errors result when an
applicant's answer does not precisely coincide with a benchmark
answer, since examiners must adjust the true score of an essay to
one of the integer set values, adding or discarding fractional
points in the process. He writes that "[t]his adjustment will be
made either unintentionally by the examiner because of
observation error or purposely because the examiner will
consciously round off applicant's true score to one of the
allowable integer values."Bettine apparently believes that the
harmful effects of this "round off"error would be lessened if
examiners were not restricted to assigning only one of five test
Bettine posits that the effect of the round off and
observation errors is cumulative. He therefore claims that,
while the grading error associated with a single question may not
be significant, one must assume that all ten of his essay scores
were reduced by 0.5 point of grading error in order to determine
the maximum effect on his combined score of the cumulative
grading errors. His Exhibit 2 shows that 5 points (0.5 points
per question times 10 questions) at the raw score level are worth
approximately 5.5 points at the combined essay score level.
Exhibit 2 also shows that Bettine needs to accumulate only one
additional point at the essay raw score level to achieve a
combined passing score of 140 points.
In response to Bettine's arguments, the ABA relies
primarily on the affidavit of Dr. Stephen Klein, a nationally
recognized expert on bar examinations. Dr. Klein does not
challenge the mathematical foundations of Bettine's arguments
concerning measurement error and significant figures. He instead
argues that the principles of numerical analysis, upon which
Bettine relies in making his criticisms of the grading
procedures, are inapplicable to psychological measurements such
as the grading of exams. He testified:
6. Bettine's arguments for changing the
score intervals stems from his failure to
recognize critical differences between
physical and psychological measurement.
Physical measurement is used to assess the
height, weight, temperature, or other
properties of physical things. These
measurements are made with rulers, scales,
thermometers, Geiger counters, and other
mechanical devices. Such measurements can be
made with more precision by using an
instrument that is marked off in finer
gradations, such as by replacing a ruler with
7. In contrast, human judgment is
needed to assess the relative quality of a
figure skater's performance or a candidate's
answer to a bar exam question. Using more
score levels (such as by having readers
assign grades in half-point intervals) does
not increase precision unless readers can
reliably distinguish between the quality of
answers in adjacent levels. Readers should
use only as many score levels as are truly
needed to distinguish between answers of
Klein notes that most states use about five score levels to grade
bar exam essay answers, since "[t]hey have found this is about
the right number to reflect real differences in answer quality,
but not so many as to force readers to make distinctions where
there are no reliably identifiable differences."
After reviewing the arguments of Bettine and the ABA,
we have concluded that Bettine has failed to make factual
allegations sufficient to establish an abuse of discretion or
improper conduct on the part of the ABA. Although Bettine's
criticisms of the mathematical foundations of the grading
procedure are convincing from a purely mathematical standpoint,
they are undercut by Dr. Klein's statements that it is
inappropriate to strictly apply numerical analysis to
psychometric measurements. In view of Dr. Klein's affidavit, it
cannot be said that Bettine has satisfied the "heavy burden" of
showing an abuse of discretion or improper conduct on the part of
the law examiners. Similarly, Bettine's presentation is
insufficient to demonstrate that the ABA's grading procedures
violated his equal protection or due process rights.
B. Reread Policy.
Bettine's second argument is that the reread policy
employed by the ABA is arbitrary and capricious, and that it is
contrary to this court's decision in Application of Obermeyer,
717 P.2d 382 (Alaska 1986). In Obermeyer, this court was faced
with a challenge to the ABA's policy of rereading the essays of
only those exams which received a score between 139.00 and
139.99. Obermeyer maintained that this cut-off is arbitrary
because "the statistical variance between 139.00 and 139.99 is
only 0.7%, which is considerably smaller than the margin of error
permitted by averaging scores assigned by different graders when
they differ by only one point." Obermeyer, 717 P.2d at 388. We
rejected Obermeyer's claim, stating that the "appropriate
comparison would be of the variance created by averaging as a
function of the total exam score to the variance allowed by the
reread policy." Id. We recognized, however, that there may be
"facial validity in [Obermeyer's] argument." Id. We stated that
"[i]t certainly seems that the Bar should be willing to allow a
reread for at least as large a variance as the margin of error
its examiners are allowed in averaging scores." Id. Bettine
argues that the ABA has failed to comply with this "order,"
resulting in a situation where the maximum cumulative error is
5.6 times the variance at the combined score level for which the
respondent will presently grant a reread. He claims that the ABA
should expand its variance for reread from 1 point to 5.5 points,
which represents a variance of 3.9%.1
We do not believe that the ABA abused its discretion in
deciding to reread only those exams which come within one point
of passing. It is our opinion that the ABA could eliminate its
reread policy without abusing its discretion in administering the
bar exam. To the extent that our statements in Obermeyer
indicate otherwise, we disavow those statements.
COMPTON, Justice, dissenting, in part.
In State v. Erikson, 574 P.2d 1 (Alaska 1978), we
adopted a single flexible test to review legal challenges to
governmental action based upon the Alaska Constitution's equal
protection clause.2 This test, which has come to be known as the
sliding scale test, provides for varying levels of scrutiny
depending on the importance of the right involved.
In applying the Alaska Constitution . .
. there is no reason why we cannot use a
single test. Such a test will be flexible
and dependent upon the importance of the
rights involved. Based on the nature of the
right, a greater or lesser burden will be
placed on the state to show that the
classification has a fair and substantial
relation to a legitimate governmental
Id. at 11-12.
Our adoption of this single test reflected our
discontent with the United States Supreme Court's rigid two-tier
equal protection analysis.3 In Isakson v. Rickey, 550 P.2d 359
(Alaska 1976), we had begun to move toward a less deferential
approach at the lower end of the equal protection spectrum "by
raising the level [of scrutiny] of the lower tier from virtual
[judicial] abdication to genuine judicial scrutiny." Id. at 363.
There we held that
"[u]nder the rational basis test, in
order for a classification to survive
judicial scrutiny, the classification `must
be reasonable, not arbitrary, and must rest
upon some difference having a fair and
substantial relationship to the object of the
legislation, so that all persons similarly
circumstanced shall be treated alike.'"
It is this more flexible and more
demanding standard which will be applied in
future cases if the compelling state interest
test is found inappropriate.
Id. at 362 (quoting Wylie v. State, 516 P.2d 142, 145 (Alaska
1973) (footnote omitted)).
I dissent from the court's resolution of the
reread/regrade challenge because the court disregards the
scrutiny required by Erikson and Isakson. The court reaches its
conclusion without ever examining the importance of Mr. Bettine's
legal interest in professional licensure, the ABA's interest in
setting the one-point reread threshold, or the nexus between the
ABA's interest and its means of achieving that interest. In
fact, the court does not appear to apply any test at all.
Bettine falls within the class of applicants for whom a
reread/regrade could mathematically produce a passing score --
those scoring within 5.5 points of passing.4 In granting rereads
only to applicants scoring within one point of passing, the ABA
discriminates against applicants within Bettine's class whose
score is lower than the one-point reread threshold. Regardless
of whether the ABA is constitutionally compelled to reread any
examination, the ABA must treat all persons within that class
similarly unless it can articulate a rational basis for
discriminating among them. Neither the ABA nor the court has
identified any bases for the discrimination.
Applying the sliding scale test to a case involving the
right to employment, this court must "closely scrutinize
enactments which interfere with that right." Matson v.
Commercial Fisheries Entry Comm'n, 785 P.2d 1200, 1205 (Alaska
1990). In Matson we noted that "[e]qual protection requires that
an enactment impairing this important right be closely related to
an important state interest." Id. For all practical purposes,
failure to obtain professional licensure forecloses employment
opportunity as a lawyer. Examination procedures should be
closely scrutinized. However, even if licensure procedures
deserve less scrutiny than employment practices, they deserve
some scrutiny. The court does not scrutinize the ABA's
procedures at all.
The distinction in score between those examinations
within Bettine's class which are reread and those which are not
is not statistically significant. As noted, no other bases for
this distinction have been advanced. The ABA's one-point reread
threshold is arbitrary and does not withstand scrutiny under the
sliding scale test. Therefore, the procedure denies Bettine
equal protection of the law.
1. In his reply brief, Bettine claims that the expanded
reread range which he recommends is consistent with reread
policies utilized by both Oregon and Washington. Washington
grants a reread for unsuccessful applicants whose score falls
within a range of approximately 2.5% to 3.0% of passing, while
Oregon grants a reread to the top 30% of applicants who fail the
2. This clause provides "that all persons are equal and
entitled to equal rights, opportunities, and protection under the
law[.]" Alaska Const. art. I, 1.
3. The two-tier analysis requires strict scrutiny of
governmental action under the "compelling state interest"
standard in cases involving fundamental rights or suspect
categories, and "minimal scrutiny"under the rational basis test
in all other cases. See, e.g., Kramer v. Union Free School Dist.
No. 15, 395 U.S. 621, 626-27 (1969); Harris v. McRae, 448 U.S.
297, 324 (1980). For a brief history of this court's
dissatisfaction with the two-tier approach, see Isakson v.
Rickey, 550 P.2d 359, 361-63 (Alaska 1976).
4. Bettine's circumstance is not like Mr. Obermeyer's,
since a reread/regrade of Obermeyer's bar examination could not
have mathematically produced a passing score. See Application of
Obermeyer, 717 P.2d 382, 388 (Alaska 1986).