In Re Petition of Marla Matrice Murphy

IN THE SUPREME COURT OF THE STATE OF DELAWARE

IN RE PETITION OF MARLA §
MATRICE MURPHY § No. 398, 2021
§

Submitted: June 29, 2022
Decided: August 17, 2022

Before SEITZ, Chief Justice; VALIHURA, VAUGHN, TRAYNOR, and
MONTGOMERY-REEVES, Justices, constituting the Court en Banc.

On appeal from the decision of the Board of Bar Examiners of the State of Delaware:
REMANDED.

Anthony N. Delcollo, Esquire (argued), Christopher J. Isaac, Esquire, OFFIT
KURMAN, P.A., Wilmington, Delaware, for Petitioner Marla Matrice Murphy.

Andrew D. Cordo, Esquire, WILSON SONSINI GOODRICH & ROSATI, P.C.,
Wilmington, Delaware, for the Board of Bar Examiners.

PER CURIAM:
 At the height of the COVID-19 pandemic in 2020, the Delaware Supreme

Court cancelled the Delaware Bar Exam. In 2021, with the pandemic still causing

unprecedented illness and death, the Board of Bar Examiners administered the Bar

Exam but required all applicants to take it remotely using the ExamSoft software

program.

The 2021 Bar Exam was the first time the Delaware Board, and many boards

across the country, administered a bar exam remotely. There were teething pains.

Some applicants experienced screen freezes. Others had crashes requiring restarts.

After reviewing the technical problems and consulting a grading expert, the Board

increased the scores for applicants who had to restart their computers.

Marla Murphy sat for the 2021 Bar Exam and received an increase in her score

for technical difficulties but did not pass. She petitioned the Board for a hearing and

argued that the Board’s grade adjustments in response to software difficulties were

arbitrary and capricious, and the Board did not adequately execute her approved

testing accommodations. Murphy asked the Board to bypass the Board’s and this

Court’s admission requirements and grant her admission to the Delaware Bar.

The Board denied Murphy’s petition for a hearing. The Board reasoned that,

under its rules, it must treat all scores as final once released and all applicants must

attain a certain score to qualify for admission to the Delaware Bar. Because Murphy

was challenging her test scores and requested admission to the Bar as her only

remedy, the Board found that it could not grant the relief she sought.
2
 On appeal, Murphy claims that the Board employed an arbitrary score

adjustment procedure to address technical issues during the Exam. She also

contends that her specific technical difficulties with the Exam software, the lack of

a paper copy of the Exam, and alleged distracting behavior by her in-person proctor

resulted in an effective denial of the testing accommodations approved by the Board.

As she did before the Board, Murphy requests admission to the Delaware Bar, even

though she did not achieve a passing score on the 2021 Bar Exam.

The Board has done its best to navigate the Delaware Bar Exam through the

COVID-19 pandemic. We sympathize with the difficulties Murphy and all

applicants experienced with the 2021 Bar Exam. But we conclude that the score

increases for certain applicants, including Murphy, were not arbitrary or manifestly

unfair and met constitutional requirements. We also find that neither the Board nor

the Court can waive its admission requirements and admit Murphy to the Delaware

Bar.

Finally, for Murphy’s Americans with Disabilities Act claim, the Board did

not conduct a hearing to determine whether Murphy was denied the accommodations

approved by the Board during administration of the Exam. Even though waiver of

admission requirements is not a remedy available to Murphy for ADA violations, if

Murphy intends to pursue some other remedy for those claims following appeal, the

Board should conduct a hearing and determine whether Murphy’s approved

accommodations were not provided during administration of the Exam. The
3
determination of the appropriateness of any remedy should occur only following the

development of the factual record in the event the Board determines that the ADA

accommodations were not provided and executed as approved.

I.

The 2021 Bar Exam took place over three days, from July 26–28, 2021. It

had three parts—the Delaware essay section, the Multistate Performance Test

(“MPT”), and the Multistate Bar Exam (“MBE”). 1 The latter two sections were

developed by the National Conference of Bar Examiners (“NCBE”). Due to the

ongoing COVID-19 pandemic, the 2021 Bar Exam was administered remotely, a

development that was announced months before the Exam date.2 All applicants took

each of the three parts online using ExamSoft’s secure remote testing software.3

Because of the Bar Exam’s remote format, all 2021 applicants were advised to fill

out a report (an “Incident Report”) if they experienced any testing irregularities. The

1
Rules of the Board of Bar Examiners of the State of Delaware, Rule 12 (hereinafter, “Board
Rule” or “BR”). See also In re Hudson, 402 A.2d 369, 370 (Del. 1979) (stating the MBE “is
administered on a national basis by the National Conference of Bar Examiners. All applicants in
all States which use the MBE take the same test at about the same time.”).
2
App. to Answering Br. at B1 (BBE Email Mar. 15, 2021). The Board stated the following
regarding the COVID-19 pandemic and the safety of administrating an in-person exam:
The Board has continued to monitor closely the most recent information from
health authorities, including projections regarding the pandemic and the ongoing
need for restrictions on in-person gatherings. The Supreme Court and the Board
believe that remote administration of the 2021 bar examination is the best approach
to mitigating the continued risks associated with large gatherings during the
pandemic. The remote format provides all applicants wanting to sit for the
Delaware exam the opportunity to do so safely. The Board is confident that the
administrative protocols currently in place will allow for a secure and effective
administration of the exam in July.
Id.
3
Id. (BBE Email Mar. 15, 2021).
4
Board provided blank Incident Report forms for applicants to fill out and upload to

their online Bar application. 4 The Board also provided examples of testing

irregularities, such as an applicant moving away from their laptop camera, or

“technical problems” with the testing software.5

Murphy applied to sit for the Delaware Bar Exam for the first time in 2021.

She submitted an Application for Testing Accommodations (the “Accommodations

Application”) under Board Rule 15.6 She also provided documentation to show that

she has several disabilities that affected her ability to take the Bar Exam.7 Murphy

requested 100% extra time for the entire exam, along with “pencils, highlighter,

scratch paper, the ability to read the questions out loud, stop the clock breaks and a

private room.”8 She did not request a paper copy of the Bar Exam.

The Board approved Murphy’s Accommodations Application as follows:

“100% extension of time (without ‘stop the clock’ breaks), a private room, []

permission to have scratch paper and a pencil . . . and to read aloud.” 9 Of the

accommodations requested, only her request for “stop the clock” breaks was denied,

4
Opening Br. Ex. D.
5
Id. The form provided other examples of testing irregularities that would necessitate an applicant
to file a report such as “any disruption, including (but not limited to) requiring a “resume code.”
Id. The form also stated that “[a]ll incident reports are due by 11:00 p.m. on the day that the
incident occurs.” Id.
6
Opening Br. Ex. A.
7
Id. at 1.
8
Id. at 2.
9
Opening Br. Ex. B.
5
and her request to use highlighters was not addressed.10 Although the Board allowed

Murphy to use physical scratch paper during her exam, the Board’s letter did not

specify for what portions of the Bar Exam Murphy would be allowed to use scratch

paper. The Board stated that her “proctor will collect the scratch paper at the end of

each session of the exam.”11 To accommodate the requests for additional time and

the use of physical scratch paper, the Board scheduled her exam for Monday, July

26, through Friday, July 30, to take place at a testing site in Wilmington, Delaware.12

On July 26, 2021, Murphy went to the location of her private room to take the

Bar Exam. According to her petition and appeal, she had problems during her exam

which effectively deprived her of some of the testing accommodations approved by

the Board.13 First, Murphy contends that her proctor “typed loudly on his keyboard,

cracked his knuckles, and his cell phone rang” throughout her exam. 14 Second,

Murphy claims she suffered three separate ExamSoft failures that required her to

restart her computer and later file three separate Incident Reports documenting the

irregularities. According to Murphy, these incidents increased the anxiety and stress

she experienced during the test because of her disabilities and caused her to lose

10
As we understand it, a “stop the clock” break essentially allows the applicant to pause the
exam—in other words, stop working on the exam without affecting the time allowed to take the
entire test.
11
Opening Br. Ex. B (emphasis added).
12
Id.
13
The Board vigorously disputes Murphy’s account of the testing accommodations. Opening Br.
Ex. F, at 2; Answering Br. at 12 n.38.
14
Opening Br. at 8.
6
more time relative to her peers who experienced similar technical issues. Third, she

contends that because she was not allowed physical scratch paper throughout the

entirety of the Bar Exam, that accommodation was not fully provided. Finally, she

argues that she was “denied a paper copy of the [Bar Exam],”15 even though she

concedes that she “did not specifically request a paper copy of the [Bar Exam] as

[she] assumed one would automatically be provided.” 16

After administering the Bar Exam, the Board was advised that many

applicants experienced difficulties with the ExamSoft software. 17 The software

failures were not unique to Delaware test takers—they affected ExamSoft test takers

nationwide. 18 Because of the software problems, the Board announced that it

delayed the release of 2021 Bar Exam scores so that it could, with the help of a

psychometrician, review the scores and provide scoring adjustments to mitigate the

impact of the ExamSoft software problems.19

With respect to the essays and the MPT questions, the Board applied a “pro

rata adjustment” that “allowed for an upward adjustment to an applicant’s affected

essay score based on the difficulty level of the affected essay and his/her average

performance on the written questions in which the applicant had no technical

15
Id. at 8.
16
Opening Br. Ex. C, at 4.
17
Opening Br. Ex. E, at 1.
18
Id.; Opening Br. at 10–11.
19
Id. at 1.
7
issues.”20 This specialized adjustment could not be applied to the MBE section of

the Bar Exam because, as the Board stated, “[i]ndividualized score adjustments were

not feasible on the [MBE].”21 Instead, after consulting with its psychometrician, the

Board “made an upward adjustment to the score of all applicants who experienced

technical issues during the MBE. This upward adjustment was equivalent to the

difference between the mean MBE score of the affected applicant population and the

mean MBE score of the unaffected applicant population.”22

Applicants received a score adjustment based on an objective factor—a

computer restart. The ExamSoft software logged all restarts, creating a record of

which applicants experienced technical difficulties. No other technical difficulties

were given scoring adjustments. Importantly, “[n]one of the scoring adjustments to

the 2021 exam adversely affected any applicant, regardless of whether he/she

experienced any technical issues” and “[n]o applicant’s score was reduced as a result

of applying the adjustments to the scoring methodology.”23 Murphy received a score

increase for the technical problems she experienced during the Bar Exam.24

20
Id.
21
Id. at 2.
22
Id.
23
Id.
24
See App. to Answering Br. at B4–5.
8
 The Board released the Bar Exam results in October of 2021. Murphy was

notified that she did not pass.25 Because she did not pass, she received her score

report, that explained how her final score was calculated.26

Murphy petitioned the Board for a hearing (the “Petition”). She asserted that

the “Board acted in an arbitrary and unfair manner in connection with the

administration of the July 2021 Delaware Bar Exam that led to [Murphy’s] failing

score” for three reasons: the Board’s modification of scores was arbitrary and unfair;

her accommodations were not provided in accordance with Title II of the ADA; and

the accommodations that were granted were not adequately provided as required by

Titles II and III of the ADA and the Due Process Clause of the United States

Constitution.27 The Petition requested that the Board certify her as qualified for

admission to the Bar under Supreme Court Rule 52(d), despite not meeting the

Board’s and the Court’s admission requirement of a passing score on the Bar

Exam.28

25
The minimum passing score is 145. Id. at B4 (Information Regarding Score Reports for 2021
Delaware Bar Exam). Murphy received a total scaled score of 139.60. Id. at B5 (Murphy’s 2021
Delaware Bar Exam Score Report).
26
See id. at B4 (Information Regarding Score Reports for 2021 Delaware Bar Exam), B5
(Murphy’s 2021 Delaware Bar Exam Score Report).
27
Opening Br. Ex. C, at 1, 3.
28
Supr. Ct. Rule 52(d) in full provides that “[u]pon approval of the qualifications of any applicant
for admission to the Bar, the Board shall execute and deliver to the applicant a certificate of the
applicant’s qualifications for admission to the bar.”
9
 The Board denied the Petition, stating that “applicants are not entitled ‘to a

hearing to challenge their test scores.’” 29 Further, the Board noted that it did not

have “the authority to certify for admission an applicant who did not achieve a

passing score on the Bar Exam” and that “the Board would be unable to grant the

relief [Murphy] seek[s] even if [Murphy] could prove the facts alleged in the

Petition, which the Board does not concede.”30

Murphy has appealed the Board’s decision to this Court and raises essentially

the same issues raised below: the Board acted arbitrarily and with manifest

unfairness in its score adjustment for technical issues with the ExamSoft software;

the Board failed to provide her all the approved testing accommodations; and the

Board deprived her of due process by not holding an evidentiary hearing regarding

her allegedly deficient accommodations and request for a further scoring adjustment.

II.

The Delaware Bar Exam “tests for minimum competence to practice law [in

Delaware].”31 The Board of Bar Examiners is an arm of this Court appointed under

Rule 51 to administer the Bar Exam by establishing rules and testing procedures.32

29
Opening Br. Ex. F, at 2 (citing Applicant No. 26 to 2000 Del. Bar Examination v. Bd. Of Bar
Exam’rs of the Del. Supr. Ct., 780 A.2d 252, 254 (Del. 2001)).
30
Id. at 2. The Board did offer Applicant the opportunity to sit for the 2022 Bar Exam without
paying the requisite fee. Id.
31
In re Hudson, 402 A.2d 369, 371 (Del. 1979).
32
In re Huntley, 424 A.2d 8, 10 (Del. 1980); In re Hudson, 402 A.2d at 371. See Hawkins v. Moss,
503 F.2d 1171, 1175 (4th Cir. 1974), cert. denied, 420 U.S. 928 (1975) (“The power of the courts
of each state to establish their own rules of qualification for the practice of law within their

10
“The primary function of the Board of Bar Examiners is to measure professional

competence; the purpose of the Bar Examination is to distinguish those applicants

who appear to have the minimal competence for the practice of law.”33 “Admission

to the [Delaware] Bar is not under any circumstances an automatic right.”34

A person aggrieved by a final action of the Board may appeal to this Court for

relief “if such action affects the substantial rights of the person claimed to be

aggrieved, except that decisions of the Board with respect to a specific grade or

grades assigned to any individual applicant are final and shall not be subject to

review by the Court.”35 We have stated that “an applicant who may sit for the Bar

Examination again has not suffered a deprivation of ‘substantial rights.’”36

Under Supreme Court Rule 52(e), which governs appeals from the Delaware

Board of Bar Examiners, such appeals are “argued and determined from the record

of the matter before the Board of Bar Examiners and not by means of a hearing de

novo.”37 Further, “[i]n exercising appellate review of actions of the Board of Bar

Examiners, this Court performs a limited role.”38 “Unless it is demonstrated that the

jurisdiction, subject only to the requirements of the due process or equal protection clauses of the
Fourteenth Amendment, is beyond controversy; in fact, it is a power in the exercise of which the
state has ‘a substantial interest.’”).
33
In re Reardon, 378 A.2d 614, 617 (Del. 1977).
34
In re McCaffrey, 545 A.2d 617, 618 (Del. 1988) (alteration in original) ( quoting In re Green,
464 A.2d 881, 885 (Del. 1983)).
35
Del. Supr. Ct. R. 52(e).
36
Applicant No. 26, 780 A.2d at 253–54.
37
Supr. Ct. R. 52(e).
38
Petition of Applicant No. 5 to 1994 Del. Bar and Prof’l Conduct Examinations, 658 A.2d 609,
611 (Del. 1995).
11
Board has discharged its responsibility in an arbitrary, fraudulent or unfair manner,

this Court will not interfere with the Board’s determination of competence.” 39 And

when reviewing Bar Exam procedures for constitutional violations, “this Court’s

inquiry is whether the Board’s procedures are rationally related to the testing

purpose.”40

A.

First, Murphy contends the Board’s scoring adjustment procedure addressing

ExamSoft software issues was arbitrary and manifestly unfair. According to

Murphy, she experienced technical issues during Bar Exam sections where she was

most prepared and anticipated doing well. Because the Board’s scoring adjustment

procedure did not account for an applicant’s subjective view of the difficulty of each

question, Murphy claims it was arbitrary and manifestly unfair. She also argues that

she was disproportionately affected by the technical issues because of her disabilities

and suggests that “[t]here were better alternatives available then [sic] allowing for

the upward adjustment of random essay answers.”41

We note at the outset that “generally, in any test, there obviously must be a

passing line.” 42 “With the benefit of hindsight, reasonable minds may differ,

perhaps, as to some other solution consistent with the Board’s primary function

39
Id. (citing In re Fischer, 425 A.2d 601 (Del. 1981)).
40
Id.
41
Opening Br. at 30.
42
In re Fischer, 425 A.2d at 602.
12
which may have resulted in a greater degree of fairness.”43 But, “[t]ests, like taxes,

can never be perfect and completely fair to all.”44 In In re Reardon, we addressed

the propriety of the Board’s change to the scoring procedures after administration of

the 1976 Bar Exam.45 After grading, the Board noticed that the pattern of grades

for Essay No. 8 was extraordinarily low compared to other essays.46 Confronted

with this data, “the Board concluded that Question No. 8 was not functioning to

indicate reliably those applicants with minimum legal competence.”47 To rectify the

disparity, the Board excluded the grades from Essay No. 8 when calculating

applicants scores on the essay section of the Bar Exam unless the change lowered an

applicant’s average essay score. The Board’s scoring modification allowed some

applicants to pass the 1976 Bar Exam that otherwise would have failed.

Applicants who did not have their scores from Essay No. 8 excluded and failed

the Exam sued, alleging that the Board’s decision to modify the essay scores was

arbitrary, unfair, and violated their due process and equal protection rights. The

applicants suggested alternative methods of grading the 1976 Exam and argued that

either of these methods “would have been more fair and proper.”48 The Court held

43
Id. at 617.
44
Id.
45
378 A.2d at 615–16.
46
Id.
47
Id. at 616.
48
Id. The alternative methods suggested were “curving” the scores for Essay No. 8 or eliminating
the lowest essay score for every applicant who was not eligible to drop their score from Essay No.
8. The Court held that “[i]t appears that grading Question No. 8 on a curve would have permitted

13
that the Board “acted carefully and exercised deliberate judgment” after considering

several relevant factors, demonstrating that the Board did not act in an arbitrary

manner.49 Further, the Court held that the Board’s actions did not produce manifest

unfairness because it allowed the applicants to retain their score on Essay No. 8,

which increased their odds of passing the exam, and if the Board had done nothing,

the applicants would have failed anyway. 50 The Court refused to substitute its

judgment for that of the Board and override the Board’s method for remedying the

clear problems associated with Essay No. 8.

The same principles apply here. The Board tried to reach the fairest possible

solution under the circumstances. As reflected in the October 2021 announcement,

the Board acted carefully and exercised deliberate judgment after considering

several relevant factors, including: the nature of the ExamSoft issues; the number of

applicants who experienced ExamSoft issues; the average performance of applicants

who experienced ExamSoft issues; and the pattern of the grades for applicants that

experienced ExamSoft issues compared to other applicants.51 Further, the Board

enlisted a psychometrician to formulate the best approach that accounted for the

more persons to pass the question, having the anomalous result of according more credit to a
question properly deemed unreliable.” Id. at 617. The Court also held that “[t]he petitioners’
suggested alternate of excluding the lowest score made by each petitioner in the essay section,
suffers from the same fundamental defect [and] . . . petitioners offer no rationale as to how the
elimination of low scores on reliable questions can be related to the objective of testing
professional competence.” Id. at 618.
49
Id. at 617.
50
Id.
51
Opening Br. Ex. E at 1–2.
14
ExamSoft issues “while maintaining the fairness and integrity of the Delaware Bar

Exam for all applicants.” 52 The Board was precise and careful in its remedy,

addressing a significant issue for applicants that could have undermined the purposes

of the Bar Exam—testing for minimal competence. The Board’s grading adjustment

procedure was not arbitrary or manifestly unfair, and we will not substitute our

judgment for that of the Board.

B.

Next, Murphy argues that she was denied the testing accommodations

approved by the Board. The ADA prohibits discrimination against individuals with

disabilities in all areas of public life. “The purpose of the ADA ‘is to place those

with disabilities on an equal footing and not to give them an unfair advantage.’”53

And the ADA’s protections extend to applicants taking state bar exams because state

bars receive government funding and are considered public entities.54 As this Court

noted in Rubenstein,

It has been observed that the sine qua non for bar examiners’
compliance with the ADA “[is] principally a matter of making
reasonable accommodations for disabled individuals to take the
examination and to communicate with the licensing board.” The same
authors astutely note that courts are more likely to uphold bar
examiners’ decisions if they produce an evidentiary record showing

52
Id. at 2.
53
Petition of Rubenstein, 637 A.2d 1131, 1137 (Del. 1994).
54
42 U.S.C.A. § 12132.
15
 that reasonable efforts were made to accommodate a disabled
applicant’s needs.55

The Board Rules echo the requirement of making reasonable accommodations

for disabled individuals. Specifically, Board Rule 15(a) regarding testing

accommodations for applicants with disabilities states the following:

The Board will provide accommodations with respect to the manner in
which the Bar Examination is administered to applicants who, by virtue
of a temporary or permanent disability (as defined under the Americans
with Disabilities Act of 1990, as amended), are unable to take the Bar
Examination under normal testing conditions, provided that such
applicants are otherwise eligible and qualified to take the Bar
Examination, and provided that the accommodations are timely
requested, reasonable, consistent with the nature of the purpose of the
Bar Examination, not unduly burdensome, and necessitated by the
applicant’s disability. The provisions of this Rule shall apply to the
submissions, handling, and appeal of Applications for Testing
Accommodations notwithstanding anything to the contrary in the Board
Rules.

The Application for Testing Accommodations is submitted to a Board Committee

for consideration. 56 If the committee does not grant in full the accommodation

sought, the applicant can file a petition for a hearing on the denial of the request no

later than ten days after the committee’s written decision.57 The Board then appoints

a Hearing Panel to review the committee’s decision. 58 The Hearing Panel must

55
Petition of Rubenstein, 637 A.2d at 1138 (alteration in original) (first quoting Fedo & Brown,
Accommodating the Disabled Under the ADA: The Issues for Bar Examiners, The Bar Examiner,
Aug. 1992, at 6, 6–7; and then citing id. at 8.)
56
BR 15(c).
57
BR 15(d).
58
Id.
16
decide the petition within ten days following the hearing. 59 If the Applicant is

dissatisfied with the Hearing Panel’s decision on accommodations, she can file a

notice of appeal with the Supreme Court no later than thirty days after the date of

the Hearing Panel’s decision. 60 The time frames for deciding requests for

accommodations are compressed to allow a final decision and, if necessary, an

appeal, before the applicant sits for the Bar Exam.

Murphy makes two ADA arguments. First, she claims that the Board did not

provide her with a paper copy of the exam. But Murphy did not request a paper

copy, and she did not seek review of the Board’s ADA decision within the time

required by the Board’s rules.61 Thus, we will not consider this claim.62

Second, Murphy challenges the Board’s allegedly imperfect execution of her

approved accommodations during the Bar Exam. Because a hearing was not held

before the Board, there is no factual record to review her ADA claim. The Board

has also not decided whether Murphy was denied her approved accommodations

during Exam administration. If Murphy intends to pursue a remedy other than

waiver of admission requirements following this appeal, the Board should conduct

a hearing and determine whether Murphy’s approved accommodations were not

59
BR 15(d)(iii).
60
Supr. Ct. R. 52(e).
61
BR 15. In her petition for a hearing before the Board, Murphy conceded that she did not request
as an accommodation a paper copy of the Bar Exam. Opening Br. Ex. C at 4.
62
Supr. Ct. R. 8; see Petition of Applicant No. 5, 658 A.2d at 612 (“To the extent petitioner failed
to request that which the Board was willing to grant, his plight is one of his own making.”).
17
provided during administration of the Exam. The determination of the

appropriateness of any remedy should occur only following the development of the

factual record in the event the Board determines that the ADA accommodations were

not provided and executed as approved.

C.

Murphy also argues that the Board improperly denied her a hearing before the

Board in violation of the Due Process Clause of the United States Constitution.

Murphy claims that by denying her petition for a hearing, the Board “did not develop

any evidentiary record on this matter which provides an opportunity for this Court

to grant equitable relief de novo.”63 She acknowledges, however, that “[t]he Board

was likely correct that the relief requested—admission to practice law in the State of

Delaware—was outside of their grant of authority from the Court[.]” 64 Thus, a

hearing served no purpose. And even if we accept Murphy’s claim that she was

denied due process, the only remedy available is an order that the Board provide

Murphy with a hearing the next time she sits for the Bar Exam and requests

accommodations for her disabilities. Because Murphy has not requested a hearing

and has not registered for a future Delaware Bar Exam, we cannot grant any relief.

63
Opening Br. at 25.
64
Id.
18
 D.

Finally, Murphy asks that, given the technical difficulties she experienced

with the ExamSoft software and the alleged deprivation of her approved ADA

accommodations, we waive our admission requirements and allow her to join the

Delaware Bar. As noted earlier, our rules state that “[n]o person shall be admitted

to the Bar unless the applicant . . . has been examined upon principles of law and

equity and has been found by the Board based upon the applicant’s performance on

such examinations to be qualified to practice as an attorney.”65 And we have said

that “neither the Board nor the Court can undertake, as a general function, the

granting of bar admissions on waiver of minimum competence standards.”66 Finally,

our rules state that we cannot review the Board’s actions regarding an individual’s

grade.67 We will not waive our admission requirements.

Murphy relies on two cases to argue that the Court can disregard its admission

requirements—Petition of Golby and In re Petition of Rubenstein.68 In Golby, under

the rules in effect at the time, Golby had to achieve minimum scores on each of the

essay and multi-state portions of the Bar Exam. In July 1976, she passed the essay

portion but failed the MBE. As permitted under the rules, Golby re-took only the

65
Supr. Ct. R. 52(a)(7).
66
Petition of Applicant No. 5, 658 A.2d at 612 (quoting In re Fischer, 425 A.2d at 603).
67
Supr. Ct. R. 52(e).
68
375 A.2d 1049 (Del. 1977); 637 A.2d 1131 (Del. 1994).
19
MBE portion in February 1977, but once again failed. Between the two exams

Golby became seriously ill. As the Court described it, Golby was:

afflicted with a chronic illness of a serious nature, necessitating a course
of radiation therapy and a continuing course of chemotherapy which,
together with the symptoms of the illness, caused her great physical
distress. The symptoms of the illness and the side effects of the
therapies consisted of an almost total loss of vision in the right eye,
facial swelling and burns, headaches, chronic pain in the low back and
legs, and generalized fatigue. These symptoms and treatment side
effects were present during the time that petitioner was required to
prepare for the February 23, 1977 multi-state re-examination and
significantly detracted from her usual physical and mental capacity.69

The Board “took no position” on Golby’s petition to suspend Supreme Court

Rule 52(a)(6) and admit her to the Delaware Bar. 70 Given the “exceptional

circumstances” and “[u]nder the facts and circumstances of this case” the Court

granted the petition even though Golby did not pass the MBE portion of the Exam.71

We have since stated that “Golby has no precedential value beyond the very narrow

circumstances involved—an applicant nearing the end of a fatal illness who failed

the multi-state segment of the bar examination by one point.”72

In In re Rubenstein, Rubenstein passed the essay and multi-state portions of

the Bar Exam, but in different sittings.73 Like the rules in effect when Golby sat for

the Bar Exam, the Board required passing grades on both the essay and MBE

69
Petition of Golby, 375 A.2d at 1049-50.
70
Id.
71
Id. at 1050.
72
Petition of Nenno, 472 A.2d 815, 820 n.6 (Del. 1983).
73
637 A.2d at 1132–34.
20
sections.74 The Court decided that Rubenstein had established her competence to

practice law because she had passed both sections, albeit separately, which

effectively meant she had passed the entirety of the Bar Exam. The Court waived

the requirement that an applicant pass both sections in a single sitting but did not

waive the requirement that Rubenstein demonstrate minimum competence to

practice law by passing the Bar Exam.75

Golby and In re Rubenstein do not change our view that the Court should not

waive its admission requirements. First, in those cases the Court was swayed by the

“exceptional circumstances” and “unique and limited circumstances” involved.

Those extreme or unusual circumstances are not present here. Second, since the

Rubenstein decision in 1994, the Court has not deviated from the admission

requirements for any reason. Thus, it is fair to say that those decisions have been

limited to their facts. And finally, the Bar Exam scoring methodology has changed

significantly since In re Rubenstein. Those cases were decided when the Bar Exam

had separate passing requirements for the essay and MBE sections. Now, the Bar

Exam has three parts—the Essays, MPT, and MBE—that are combined to produce

a final grade using the following grading methodology:

An applicant shall be deemed to have passed the Bar Examination if, in
a single administration of that Examination, the applicant achieves a
“total scale score” of 145.00 or higher. “Total scale scores” are
computed as follows: (a) the raw scores on each of the eight essay

74
Id. at 1140.
75
Id. at 1139–40.
21
 questions are converted to a score distribution that has a mean of 50 and
a standard deviation of 7, (b) the raw scores on each of the two MPT
questions are converted to a score distribution that has a mean of 50 and
a standard deviation of 14, (c) a given applicant’s “total converted
score” is the sum of that applicant’s converted essay and converted
MPT scores, (d) the distribution of the “total converted scores” is scaled
to the MBE to yield a “total written scale score,” (e) the applicant’s
“total written scale score” is combined with that applicant’s MBE scale
score (with the written score weighted at 60% and the MBE score
weighted at 40%) to produce a “total scale score.” The term “scaled to
the MBE” as used herein means that the distribution of “total scale
scores” is scaled to a distribution that has the same mean and standard
deviation as the MBE scale scores in Delaware.76

We cannot separate the Essays, MPT, and MBE scores like in Golby and Rubenstein.

Now, a passing score is based on the entirety of the Bar Exam, not the scores for

each section individually.

Finally, we note that Golby and Rubenstein were decided before our rule

amendments in 1999 eliminating our review of individual grades. Prior to 1999, the

Board’s rules limited the number of times an applicant could take the Bar Exam to

three or possibly four attempts. 77 After that, an applicant was forever denied

admission to the Delaware Bar. Many of our decisions from this era involved

petitions brought by applicants after they failed their final attempt to pass the Bar

76
BR 13.
77
See, e.g., In re Fischer, 425 A.2d at 602–04 (describing the Board’s rules in 1979 that limited
an applicant to three attempts at passing the Bar Exam, and ultimately recommending that the
Board adopt a rule permitting applicants an opportunity to take the Bar Exam a fourth time at the
discretion of the Board).
22
Exam. 78 Relief from this Court was their last opportunity to practice law in

Delaware. Recognizing this fact, and not wanting to appear unsympathetic to unique

circumstances, we sometimes gave applicants an additional opportunity to take the

Bar Exam, or in the exceptional circumstances described above, admission to the

Bar.79

In 1999, the Board’s and the Court’s rules were amended to allow applicants

unlimited opportunities to take the Bar Exam. At the same time, the rules were

amended to prohibit challenges to an applicants’ scores once released.80 Our rules

were also amended in 1999 to prohibit review of the Board’s decisions on individual

grades.81 With these changes, an applicant who fails the Bar Exam is not completely

foreclosed from admission to the Delaware Bar. Since the 1999 amendments, we

78
E.g., Petition of Cahill, 677 A.2d 40, 45 (Del. 1996) (applicant failed his third attempt to take
the Exam and sought relief from this Court); In re Murray, 656 A.2d 1101, 1101–02 (Del. 1995)
(same); In re Fischer, 425 A.2d at 603 (same).
79
Petition of Cahill, 677 A.2d at 45 (granting Cahill a fourth opportunity to take the Exam); In re
Rubenstein, 637 A.2d at 1139–40 (granting applicant admission to the Bar after she had did not
pass both sections of the Bar Exam in the same sitting three times, and could only take the Exam
again if the Board in its discretion granted her the opportunity); In re Fischer, 425 A.2d at 604
(granting applicant the opportunity to take the Bar Exam again despite the fact that he failed his
third and, at the time, final opportunity to take the Bar Exam).
80
Applicant No. 26, 780 A.2d at 254 (“The [Board Rules] changed in 1999; thereafter, no regrading
was permitted.”); see also BR 16, 29.
81
Before the rules were amended, our rule stated “[a]ny person aggrieved by an action of the Board
may petition the Board for relief within the time period set forth in the rules of the Board or within
15 days after notice of such action of the Board, whichever is longer.” Supr. Ct. R. 52(f) (Apr. 1,
1998). This rule, which did not prohibit review of individual grades, was amended on November
19, 1999, to state: “Any person aggrieved by [sic] final action of the Board may appeal to the Court
for relief if such action affects the substantial rights of the person claimed to be aggrieved, except
that decisions of the Board with respect to a specific grade or grades assigned to any individual
applicant are final and shall not be subject to review by the Court.” Supr. Ct. R. 52(f) (Nov. 19,
1999). This amended language is substantially the same as the current Supreme Court Rule 52(e).
23
have refused to review any applicant’s score or grant an applicant admission to the

Bar for any reason.82

Murphy did not achieve a passing score on the Bar Exam—a requirement for

admission. The remedy for improper Board conduct in administering the Bar

Exam—whether that be arbitrary and manifestly unfair procedures, an ADA

violation, or a constitutional deficiency—is the opportunity to re-take the Bar Exam

free of any infirmities in the Board’s prior administration of the Bar Exam.83 We

will not waive our rules for admission to the Delaware Bar.

III.

Neither the Board nor this Court will waive the admission requirements for

the Delaware Bar. If, however, Murphy intends to pursue some other remedy for

82
E.g., Applicant No. 009 to 2002 Del. Bar Examination v. Bd. of Bar Exam’rs of Del. Supr. Ct.,
2003 WL 22416043, at *1 (Del. Oct. 20, 2003) (denying applicant’s appeal of the Board’s refusal
to re-grade his grade on a specific essay under our rule prohibiting review of individual grades and
stating that “[m]oreover, the applicant has the right to apply to sit for the bar examination again.”);
In re Kennedy, 2003 WL 1987984, at *1 (Del. Apr. 28, 2003) (denying applicant’s appeal of the
Board’s refusal of her request to review her Exam answers, and stating that “we continue to find
no violation of procedural or substantive due process in the manner in which the Delaware Bar
Examination is graded and reviewed.”); Applicant No. 26, 780 A.2d at 253–54 (denying
applicant’s constitutional claims on her appeal of the Board’s refusal to re-grade her exam, and
stating that “[h]er rights are fully protected by the opportunity to the [sic] take the Bar Examination
again.”).
83
See Petition of Cahill, 677 A.2d at 45 (finding the Board erred when it denied applicant’s request
for accommodations without a hearing, but stating that “[t]he appropriate and equitable remedy is
for this Court” to allow Cahill to take the bar exam again); see also Enyart v. Nat'l Conference of
Bar Examiners, Inc., 630 F.3d 1153, 1160–67 (9th Cir. 2011) (finding denial of accommodations
was likely a violation of the ADA, and granting preliminary injunction requiring the NCBE to
permit the applicant to take the exam again with the requested accommodations); In re Murray,
656 A.2d at 1104 (denying the applicant’s requested relief—admission to the bar despite failing
the exam—but stating that retaking the exam “might or might not have been available to him upon
demonstration of ‘good cause’ under the [Board’s rules].”).
24
her ADA claim following appeal, the Board should conduct a hearing and determine

whether Murphy’s approved accommodations were not provided during

administration of the Exam. The determination of the appropriateness of any remedy

should occur only following the development of the factual record in the event the

Board determines that the ADA accommodations were not provided and executed

as approved. We therefore remand to the Board for further proceedings, if necessary,

consistent with this opinion. Within 30 days of the issuance of the mandate, Murphy

shall notify the Board whether she intends to pursue a hearing before the Board on

her ADA claims.

25