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The character and fitness evaluation to practice law is discriminatory, advocates say

JUANA SUMMERS, HOST:

In order to become practicing lawyers, students must first pass the bar exam. They also have to submit to a character and fitness evaluation, which digs into criminal history. That evaluation has become increasingly controversial. Many say it's discriminatory in a profession that needs to diversify. NPR's Jasmine Garsd looks into efforts to change it.

JASMINE GARSD, BYLINE: In 2018, Dieter Tejada took the bar exam in Connecticut. Just a few years back, he was told by many he'd never make it this far. When he was 17, Tejada was arrested and convicted for a crime he says he didn't commit. But he served his sentence. The experience made him want to be a lawyer.

DIETER TEJADA: My intentions of getting to this was to try and make a system better for people, try and help people. And by and large, that's what you'll find when you find people that have a criminal record and want to be lawyers.

GARSD: Tejada passed the bar exam, but when he got to the character and fitness evaluation, his application was flagged. He says going through law school after having served time...

TEJADA: It is so much harder, so much harder to do. So for anyone that, like, goes through that trouble, I would say we have more character and fitness in a lot of ways.

GARSD: Tejada withdrew and focused instead on applying for a pardon, which he hopes will give him a better shot. The whole ordeal took a massive toll on him financially, graduating with student debt and narrow employment opportunities. Across the U.S., state bars have some version of this inquiry. Some look at arrests, convictions and juvenile records, even those that are sealed. Attorney T. Andrew Brown is the former president of the New York State Bar Association. He says for years in New York...

T ANDREW BROWN: It didn't matter if it was a citation, if it was a traffic ticket. If you were stopped as you were walking down the sidewalk and detained for a period of time, you would even have to disclose that.

GARSD: For years, Brown pushed for changes to the character and fitness inquiry. He says it's more than just a questionable practice. It's illegal.

BROWN: Any other licensing body in New York can't ask about arrests and can't ask about sealed convictions.

GARSD: There are lawyers who have criminal backgrounds or have been incarcerated. What activists argue is that the roadblocks disproportionately affect people of color. Attorney Al Brooks is with the group Unlock the Bar, which advocates for a more equitable legal profession in New York. He says since Blacks and Latinos are unequally within the criminal justice system, it's especially important to have participation in the legal profession.

AL BROOKS: The character and fitness test unabashedly prohibits that and prevents that by saying, if you're somebody who's been directly impacted by the criminal legal system, then you are not going to have any power in the criminal legal system.

GARSD: According to the American Bar Association, only around 5% of lawyers in the U.S. are Black. Six percent are Hispanic. Attorney Tolu Lawal, also with Unlock the Bar, says...

TOLU LAWAL: The makeup of the legal profession is so much more than the admission to the profession. It's about whose perspectives and opinions become hardened into legal fact.

GARSD: Some states have begun changing parts of the character and fitness inquiry. Last month, New York amended it to say applicants no longer have to disclose things like tickets or encounters with law enforcement that didn't result in formal criminal charges. T. Andrew Brown says it's a start, but applicants will still get asked questions about all past criminal records.

BROWN: We want to allow young people to correct their ways and not have them be burdened throughout the rest of their lives. To dredge this back up when they want to become lawyers is deeply troublesome.

GARSD: He says if we're serious about a more just legal system, it's the wrong message to send. Jasmine Garsd, NPR News, New York. Transcript provided by NPR, Copyright NPR.

Jasmine Garsd is an Argentine-American journalist living in New York. She is currently NPR's Criminal Justice correspondent and the host of The Last Cup. She started her career as the co-host of Alt.Latino, an NPR show about Latin music. Throughout her reporting career she's focused extensively on women's issues and immigrant communities in America. She's currently writing a book of stories about women she's met throughout her travels.