Genius

Not too long ago, when BarBri canceled a class because of a bomb threat, the Captain wrote this devastating satire of a BarBri essay. It's finally up now that the Chronic Dabbler has helped me fiddle with the format. Thanks, Chronic Dabbler! Click on the link to read the entire post.

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Whether the cancellation of a BarBri session violates bar applicants' Constitutional rights.

BY THE CAPTAIN

Standing
In order to establish standing, plaintiff BarBri students must establish a cause in controversy, meaning there must be injury, causation, and redressability. Here, there is no issue of third party standing, generalized grievance, or mootness. Additionally, there is no issue of ripeness because the plaintiffs do not assert pre-enforcement review.

Rather, the BarBri student plaintiffs have standing because they have alleged an injury, namely prohibition from attending BarBri class, which will adversely impact their ability to pass the bar exam. Secondly, this injury is incontrovertibly caused by BarBri, which cancelled the class. Finally, there is redressability, because the court can order BarBri to reinstate the class. Thus, the plaintiffs have standing.

Plaintiffs' Case

Attending BarBri Class Is a First Amendment Right
The First Amendment protects the right to peacably assemble. Here, we have a group of bar applicants who seek to peacably assemble and discourse re: California bar exam essay techniques. The ability to gather and engage in such academic discourse is squarely within this First Amendment protection. Thus, any infringement of this right by a state actor is a violation of the BarBri students' rights.

BarBri is a State Actor
The protections of the First Amendment apply to the federal government and, through incorporation by the 14th Amendment, to the states. This includes certain private organizations that have become inextricably entangled with the government so as to provide a traditional government function. Here, BarBri is such state actor, entangled with the government, insofar as BarBri is the preeminent, and only, comprehensive bar examination preparation service. Because membership in the bar is a prerequisite to certain governmental functions, such as judge, prosecutor, Department of Justice Attorney, Attorney General, and the like, completion of the BarBri course is essentially a prerequisite to access for these necessary governmental functions. This is further bolstered by the extremely low bar passage rates among those applicants not taking BarBri, compared to the extremely high passage rates among those that do. Furthermore, BarBri has conceded that its classes set the standard of performance for passage of bar exams. Thus, BarBri has established itself as a state actor, likened to governmentally proffered civil servant exam training, because attendance at BarBri classes is a prerequisite for access to necessary government positions.

Cancelling BarBri Classes Infringes on Students' First Amendment Rights

BarBri Must Staisfy Intermediate Scrutiny
Having established that attendance at BarBri class falls under First Amendment protections, and that BarBri is a state actor prevented from infringing on these rights, it must be determined whether cancelling BarBri class infringes on these rights. In order to be constitutional, any infringement of the BarBri students' fundamental First Amendment rights must meet with intermediate scrutiny. This is because BarBri's cancelling of classes is essentially a content neutral time, place, and manner restriction in a limited public forum (BarBri did not ban a particular type of speech, but rather all speech, making the law content neutral. Futhermore, because BarBri controls the venue, and is a government actor, the Harvard campus is arguably a limited public forum). Therefore, intermediate scrutiny applies, and BarBri bears the burden of proof. Cancelling classes must therefore be substantially related to an important government purpose, and it must be narrowly tailored to meet the government's purpose.

Cancelling Classes in the Face of a Bomb Threat is an Important Government Purpose
Given the potential harm students would face from a terrorist act, BarBri has clearly sought to maintain students' safety by cancelling classes and removing them from potential harm. Protecting citizens from terrorist attack is clearly an important government purpose, and satisfies the first prong of intermediate scrutiny.

Cancelling Classes is Insufficiently Narrowly Tailored
BarBri is an enormously wealthy company with nearly unlimited means at its disposal. It controls every room of every law school campus in the nation from mid-May to mid-July. When it has advance notice of a terrorist threat against these facilities, it is easily able to reschedule classes at one of dozens of different locations, all easily accessible by the BarBri students. Thus, a blanket cancelling of classes is too broad. BarBri could, and should, have merely rescheduled the class, rather than infringing on the Plaintiffs' First Amendment rights. BarBri has therefore failed to meet the second prong of intermediate scrutiny, and its cancelling of classes is an unconstitutional infringement of Plaintiff's First Amendment rights.

BarBri Has Infringed on Plaintiff's First Amendment Rights
BarBri, through its actions, has infringed on the plaintiff's rights, because its actions do not meet with intermediate scrutiny.

Potential Other Causes of Action
Plaintiffs could consider an action for breach of contract. However, insofar as only one class was cancelled, BarBri would be able to raise the defense of substantial performance. Plaintiffs would have difficulty proving that missing one class in a series of essay preparation lectures amounts to anything other than substantial performance. Additionally, any damages beyond restitution for class tuition, such as lost future wages due to failing the bar exam, would be speculative and hard to prove, because Plaintiffs would have to demonstrate that missing the particular essay class actually caused them to fail the bar.