The floodwaters had barely started to recede when Al and Alex rode the elevator up to the fifth floor in The Carl and asked if they could speak with Tim and me.

 

“Sure, what’s on your mind?” asked Tim.

 

“Access.”

 

“Access to what?” asked Tim.

 

“To the entire University of North Dakota.”

 

“Give me a better understanding here, boys.”

 

“OK,” said Al.  “I’ve just spent weeks in a wheel chair and crutches trying to be a student at this university.  It would’ve been impossible without Alex and his van.  That’s not the way it’s supposed to be.  I know that the university has given lip service to handicapped access, built some ramps, installed some curb cuts, but if you spend a week, even a day, trying to get around the campus in a wheel chair or crutches, you’ll find yourself extremely frustrated.”

 

“We need to do a lot better job.  Is that what you’re telling me?” asked Tim.

 

“Yes.  But there’s more.  You’re about to do a lot of fixing up as a result of the flood.  You’re going to spend a lot of money.  Fix a lot of things.  What I’m saying is that this is absolutely the right time to move access to a top priority.  Do it now, while you’re doing so much else.  It’ll cost much less to do it while you’re making other repairs.  Nothing should be done to fix up after the flood until access has been thoroughly considered.”

 

Tim sat quietly for a long time, looking out the window at the campus, now pretty much covered with water.  Alex started to speak, but I waved him to silence.  I knew Tim was thinking, and I was pretty sure that he was thinking that these boys were right.

 

Tim swung around from the window in Carl’s swivel chair, and looked at Al and Alex.  “Would you boys like a job?”

 

“A job?” asked Alex.  “I have a job in the Transportation Office.”

 

“I’m planning on graduate school in the fall,” put in Al.

 

“Look, boys.  I hope it’s all right to call you boys.  God, what does that say about my age?  Look, boys, you’ve caught me flatfooted.  I’m the one that’s supposed to identify the problems on this campus and put them right.  I don’t like it when two young whippersnappers come in here and do my job for me.”

 

Al and Alex looked a little startled, and perhaps fearful.

 

Tim continued.  “Don’t get me wrong.  I’m not upset with you two, I’m upset with myself.  The more I think about it, the more I realize how absolutely right you two are, and how stupid of me it was not to figure that out before you two got in here.  But here you are.  There’s an obvious problem.  Nobody on the university staff has identified it, or if they have they haven’t made enough of a fuss for me to hear about it.  So I need to fix it.  And you’re absolutely right that now, while we’re engaged in major repairs to much of the campus, is the time to consider access and other issues of the disabled.  So, I’m offering the two of you jobs.  Set up and manage the handicapped awareness office on this campus.  We’ll figure out where to get you trained; somebody must offer a crash course somewhere.  Or maybe we just need to send you off to meet with various experts, somewhere.  It would be part of your job to figure that out.”

 

The boys were flabbergasted, but I wasn’t.  This was the way Tim worked.  Find a problem; find the right persons to fix it; turn them loose.  He’d watched these two boys for some time.  He was confident in them.  They had identified the problem; they were the obvious ones to fix it.

 

Tim went on as if the boys had readily agreed to his offer.  “My goal is to do such a good job of making this campus people friendly, all-people friendly, that we get national recognition for it.  Right now, I think that the University of Illinois is often recognized as the leader.  Go there, see what they’ve done, and how they organized themselves to do it.”

 

I interjected, “Tim, they haven’t accepted your offer yet.”

 

“They will.  Right, guys?”

 

Alex was no dummy.  He recognized right away that he wasn’t going to be able to accomplish anything if this new office was hidden down near the bottom of the organizational chart.  “Where does this new office fit into the university structure?”

 

Tim grinned.  He turned to me and said, “See, Charlie, I told you these guys knew what they were doing.  That’s a key question, and they got it right off.”  He turned back to Alex, “Right at the top.  You’ll be located in Twamly and report directly to Charlie.  You’ll speak throughout the bureaucracy with his authority, and he’ll back you.  Just keep him fully informed.”

 

Al said, “Can we think about this?”

 

Alex said, “What the Hell is there to think about?  Hell, yes, we’ll take the job.”

 

Al said, “Alex, you haven’t even heard the salary, how long the job would last, all kinds of things.”

 

“I trust Tim.  It’s as simple as that.”

 

Tim said, “Well, Alex, you’re pretty low on the staff totem pole in your driver’s job.  This will move you pretty far up the pole.  Your salary will at least double, and when we look at the salary chart, we’ll probably find that you’ll do a little better than double.  Al, I don’t know what you might expect to make next year, but I’d be quite surprised if it came close to what the university can offer.  The term is indefinite, and you serve at the pleasure of Chancellor Charlie.  If you had doctorates, we’d figure out how to give you faculty status.  Since you don’t, my advice is to use the free tuition arrangement we have for staff and get to work on your degrees.”

 

Alex said, “You know I only have high school?”

 

Tim said, “All I can say is that it must’ve been a terrific high school.  You’ll be setting your own schedules, but be sure that you leave time to be at least half-time students next year.  Al you need to work on a master’s degree, and Alex you need to get started on a bachelor’s.”

 

“With pleasure.  When do we start, and what do you want us to do first?”

 

“You start right now.  I’ll get the paperwork moving as soon as we have some way to handle it other than rowboat.  You’re both living here in The Carl, right?” 

 

“Yes.” 

 

“Until we can get back on campus, your beds will have to be your offices.  Like all university employees, flood response is your first responsibility, but the emergency actions are behind us.  As for how to transition into your new jobs, that’s up to you.  I hired you because I believed that you could figure out what you should be doing.”

 

Alex said, “You said you thought the University of Illinois is one of the leaders in providing access.  I think while we’re waiting out the flood, we might head down there and look around.  It’d probably be a good use of our time.”

 

Tim grinned.  “I knew I had two winners.  How do you plan to get there?”

 

Alex said, “Get somebody in The Carl to run us out to the edge of town in a Zodiac, take a university van and drive west till we find a functioning airport, probably Bismarck.  Fly out, probably to Denver, and then on to Champaign.”

 

Tim said, “That’ll work.  I’ll write you a letter of introduction.  We need a job title for you guys.  How about, “Special Advisors to the Chancellor on Access?”

 

“Sounds good to me,” said Al.

 

“Not to me,” I said.  These two don’t want to be called ‘advisors’.  That may be fine when visiting the University of Illinois, but it doesn’t carry enough clout here.  It’s too easy to ignore an ‘advisor’.  They should be Directors, I guess Co-Directors, of the Office of Disabled Access.”

 

Alex, proving himself to be very shrewd indeed, came back with, “I think we should have both titles.  One of us can be your Special Advisor and the other can be the Director of the Office.  That way we can take advantage of whichever title is most effective in each situation.  I’d really rather call up the administrative offices at the University of Illinois and be the Special Advisor to the Chancellor.  But if I had to argue with an architect contracted to the university, I’d rather be the Director of the Office of Disabled Access.”

 

Al said, “Who should be which?”

 

Alex said, again demonstrating his bureaucratic knowhow, “I should be the Special Advisor.  That job doesn’t have a specific bureaucratic rank associated with it.  The Director of an Office is part of the bureaucratic chain, and if I jump from driver in one office to director in another that move is going to be resented by everyone I pass over.  Al comes in from the outside as a newly hired director, and my moving to special advisor is a much less controversial promotion.”

 

Tim said, “He’s right.  So be it.  But let’s not name the office until you’ve studied the issue a lot more.  I’m not sure that it should be limited to disabled access; I think we may need a title that provides a broader focus.”  He continued, “By the way, you know you’re going to be hated by every facilities person on the campus.  Access is very popular with the sociologists, but it’s a dirty word to construction managers and budget analysts.”

 

Al said, “We’ll take our chances.  As long as we feel we’re being supported from the very top.”

 

“You will be,” said Tim.

 

“And I concur.  And that’s important, because Tim has you set up to report to me, thus expanding my job responsibilities.”

 

“Right, Charlie, but only in an area where you’re going to manage by getting out of the way of two pretty smart cookies.”

 

Al and Alex looked pleased as punch with the compliments, as well as with their immediate job prospects.  They took their leave promptly, almost as if they were afraid that Tim might change his mind before they got out the door.  But in just a few minutes Al was back.  “Tim, with everything so confused at the university right now, how do we get money for the trip to Illinois?  I don’t think either Alex or I have the cash to pay for it up front?”

 

I chuckled, “That’s a question a lot of people around this place are asking right now.  The business office is functioning, after a fashion, on a temporary basis from Heltz Hall.  But they won’t have any record of you being on the staff.  We have a cash supply here.  We’ll advance you what you need, and you can file an expense voucher when things get straightened out.  Come back tomorrow for your letter of introduction, and we’ll also provide the cash.”

 

“Gee, thanks, Charlie.  We were a little worried that this was going to be a big Catch-22.”

 

I laughed.  “Right you are.  And Tim is letting it be a big Catch-22 for some offices that spend money a little too loosely.  But you guys are on the good-guys list.  Don’t worry.”

 

Tim turned to me smiling and said, “I wish I could turn this flood on and off at will, and direct it to specific locations.  There are a couple of offices that I’d like to put out of business.”

 

“I won’t even bother to ask which ones you have in mind.  I could probably add a couple to your list.”

 

Tim said, “I’m hungry.  I think the kids downstairs will have some lunch going.  Let’s see if we can grab a bite to eat.  Then we need to take a boat and move around the campus.  I want to be seen by the people working hard in this mess.”

 

Al and Alex had little trouble getting to Champaign.  They picked up a van and headed west.  Telephone service had been unreliable in Grand Forks so they stopped in Lakota to make some phone calls.  Lakota was nothing more than a junction, but it was the point on the road where they had to decide whether to head west to Minot or head southwest to Bismarck.  They found that virtually all flights out of Bismarck were full or cancelled.  However, they could get out of Minot on a flight to Minneapolis the next day.  There wasn’t a motel room to be had in all of North Dakota because of the evacuees from the flood, so they simply parked the van at the airport and slept in it overnight. 

 

The next day from Minneapolis they couldn’t make good connections to Champaign, but were able to schedule a flight that day to Detroit and on the next day to Champaign.  It was a little out of their way, but they decided that was better than sitting an extra day in Minneapolis and not going anywhere.

 

Their formal report of the trip didn’t contain the following activities, which they shared with us much later, when they joined us for dinner one evening.  Alex had said, “We had a great time in Detroit.  We headed downtown and got a room high up in the Renaissance Center–they call it the Ren-Cen.  What a fabulous place.  The room was sort of shaped like a piece of pie with the point cut off.  The large curved edge was a curved wall of glass.  Our room looked west over the city of Detroit.  It would’ve cost us a little more to be on the opposite side and look down on the Detroit River and Windsor, Canada.  We loved looking out over Detroit.  We headed for Canada on a local bus, and walked around Windsor.  Not much, but we found a nice place to eat, and then headed back to the bus and the hotel.  We got into the room about ten in the evening.  At that hour we looked out the windows at the lights of Detroit, stretching almost as far as you could see.  You could see the roads spoking out from central Detroit, heading out into the suburbs.  The expressway system crisscrossed the area.  We didn’t know the local geography enough to pick out specific spots, but the overall effect was fabulous.”

 

Al picked up the story.  “We stood their looking out the window, and soon we found ourselves hugging each other.  We realized that seventy stories up, no one could see us in the window, and very quickly we were naked as jay birds.  Just being alone together in a hotel room can be sexy, but that setting was downright erotic.  We were quickly on the king size bed, dividing our time between paying attention to each other and the view.  We alternated sex with sleep all night.  Daylight the next day provided a new view, and a new excuse to take advantage of the privacy of the situation to satisfy our lusty urges.  My God, what a time we had.”

 

Tim asked, “Did you make your plane for Champaign?”

 

“It didn’t leave till early afternoon, and we made it easily.  But we spent the morning in the room and mostly in bed.  We had room service bring up breakfast,” Alex continued.

 

Al said, “My God, that cost us a fortune, but it was worth it.”

 

Alex said, “We know we spent way more than the university guidelines for the stop in Detroit.  But we’ll only ask for reimbursement at the guideline rate.”

 

I said, “It hadn’t occurred to us that you wouldn’t do that.  And deciding to spend a little of your own money to enhance a stop like that is perfectly all right.”

 

Tim said, “It’s encouraged, in fact.  Despite a lot of what you read about boondoggle travel, it’s not the big deal it’s cracked up to be.  Changing planes in Detroit is not stopping over in Honolulu.  I’m glad we were able to turn a boring night into an adventure.”

 

I said, “And it sounds like it was quite an adventure.”

 

“Believe us, it was.”

 

Just listening to these two young men, not much more than boys, talk about their sexy time in Detroit certainly got the juices flowing for Tim and me.  We both admitted later that we were very tempted to invite the boys upstairs to our bedroom to demonstrate their Detroit activities, but we had both held our tongues.  We didn’t hold back our peckers from each other that night, however!

 

Al and Alex’s  trip to the University of Illinois didn’t turn out the way they expected at all.  First of all, after calling the university and introducing himself as the Special Assistant to Chancellor Charlie, Alex was fairly quickly put through to the vice-president of the university whose responsibilities included issues of access.  He was delighted to have  them come to visit, and after they told him that because of the flood they couldn’t make specific travel commitments, he told them to just come on and call the Office of the President when they knew travel details, even at the last minute.

 

They weren’t expecting the V.I.P. treatment that they received from the university.  They’d called from Detroit as soon as they’d confirmed their flight to Champaign.  They were greeted at the airport by a car and driver who took them to the President’s guest suite at the Illini Union Hotel at the center of the campus.  Their rooms overlooked the main quad on campus, and were sumptuous.

 

That was just the beginning.  They met immediately with the president of the university, the vice-president Alex had talked to on the telephone, and several others who were responsible for various aspects of the university’s access programs.  They asked quite a few questions, but at that initial meeting they were generally told that answers to all of their detailed questions would be forthcoming in future meetings.  At this meeting there seemed to be two things of importance, based on the comments of the president.  First, they made it clear that support at the very top was absolutely essential to a successful program.  The president assured them that was the case at the University of Illinois, and everyone in the room agreed.  Secondly, everyone had questions for them about the flood, the University of North Dakota, and especially about its president and chancellor.  Al and Alex had no idea that Tim and Charlie’s fame and reputation was as great as it seemed to be.  These very influential persons, all men except one, seemed to be basking in the reflected glory of Tim and Charlie by being gracious to their two representatives. 

 

Alex told us later, “I spent the whole time hoping that it wouldn’t come out that my highest degree was from high school.”

 

We told him, “You should be proud of that, not ashamed.  It simply proves that you have the right stuff to succeed.”

 

“Whatever.  I made up my mind right in that first meeting that getting my degree was going to be a high priority.”

 

Tim and I felt it was worth sending him on the trip if that was the only positive outcome.  But it wasn’t.

 

The second surprise for Al and Alex on the trip was the stress that everyone made on the fact that attitude and program were much more important than physical arrangements for access.  “You can build a ramp, but where does it go?  On the front or on the back?  You can cut a curb, but is the student in the wheelchair going to feel welcome and a part of the campus after he rolls through the curb cut.

 

More importantly, while most people thought about ramps, curb cuts, elevators, and wide bathroom doors, all with wheelchairs in mind, very important populations of the visually and hearing disabled needed to be considered.  Recently, there was greater awareness that certain learning difficulties were not the result of lower intelligence, but of specific disabilities that could be accommodated.  Persons with dyslexia, hyperactivity, and diseases like cerebral palsy were often capable of high level mental functioning if properly accommodated.  Epileptic fits were often an unacceptable reason for keeping persons from attending a university.

 

I’ll give the folks at the University of Illinois a lot of credit.  They really believe in their cause, and they made converts out of Al and Alex.  They returned to North Dakota as the final flood waters receded from the campus, ready to change the world, or at least the university.  Tim and I had the task of injecting some realism into their plans, while not dampening their enthusiasm.  Luckily the two young men proved to be most astute.  They kept the bar raised very high in front of us, but accepted both the fiscal restraints that had to be imposed, as well as the need to move, if not slowly, at least not at breakneck speed in trying to change attitudes.

 

Over time the university would be dragged into inter-community wars within both the blind and deaf communities.  There was little agreement among both the blind and the deaf, and their sighted and hearing advocates, as to whether they should be educated in separate facilities or mainstream institutions.

 

There was also a question as to whether all institutions in a state should strive to accommodate all comers.  Or should, for example, UND seek to provide outstanding facilities for blind students, while NDSU sought to make provision for deaf students?  Such decisions are the stuff of ongoing battles that are far from resolved to this day.

 

The immediate issue for the University of North Dakota was what changes should be implemented during the necessary rebuilding following the flood?  Al and Alex combed the campus, carefully reviewing all of the damage and noting where changes should be made.  Their most common recommendations related to landscaping: not planting, but the actual reshaping of land contours.  The muddy mess outside of most buildings, meant that many sidewalks, entranceways, ramps, and the like had to be rebuilt.  Al and Alex were constantly pointing out that a bulldozer could move earth and eliminate the need for stairs or an ugly ramp.  Rerouting a walk could eliminate a set of stairs.  Knocking out a window that was already damaged could allow for a new door that eliminated an awkward ramp.  Damaged ramps that wouldn’t allow two wheelchairs to pass going opposite directions could be rebuilt wide enough to be really useful.  And on and on.

 

I had a quiet, private meeting with the head of B&G and his top people in charge of the campus clean-up and reconstruction.  I told them, “I don’t want to have to put this in writing or make a big deal out of it, but nothing goes forward on any of your projects without either Al or Alex signing off on it.  I don’t believe that they’re going to be making unreasonable suggestions, and if you feel they are, come see me immediately.  But remember, Tim hired these two guys to make this campus a friendly place for everyone, including the disabled, and he, and therefore I, are going to be very much inclined to support Al and Alex.”

 

Al and Alex were likewise warned to not push their luck too far in using  either my name or Tim’s in discussions with B&G.  They were to keep their suggestions reasonable, listen to reasonable objections, and get agreement without having to get me or Tim involved.

 

By some minor miracle neither Tim nor I had to get involved.  Al and Alex reported great cooperation from B&G, and B&G reported that they were constantly pleasantly surprised by the quality of the suggestions they received and Al and Alex’s willingness to back off when a suggestion was too costly or impractical. 

 

In the fall Al and Alex had a meeting with the three currently registered students who were permanently confined to a wheelchair.  They wanted to know what their problems were, no matter how minor.  Where were their obstacles?  Where were they forced into embarrassing situations?  Where couldn’t they get without help? 

 

Every time an accident or illness put someone in a wheelchair on a temporary basis Al arranged for  work-study students to accompany the new wheelchair users until they were comfortable getting around campus.  At the same time he requested their cooperation in letting him know about the problems they encountered.  The work-study students that accompanied them were also interviewed.  Both Al and Alex insisted that they learned more about problems on campus that way than any other.  And they also got a lot of good ideas about how to solve some of the problems–and not necessarily the way the “experts” would’ve solved them. 

 

Take, for example, bathrooms.  The standard solution is to make all, or most, of the bathrooms on campus handicapped accessible, with wide doors, a large stall, and handrails.  One of the handicapped students, a young man married to a wonderful wife, strongly advocated for a different approach.  “Look, when you make all of the bathrooms handicapped accessible, you take up a lot of space and reduce the capacity of the bathrooms to hold everyone else.  I’d rather have one large unisex bathroom on just one floor in a building, as near to the elevator as possible.  I’ll be able to get to it from any floor just by taking the elevator.  More importantly, my wife can come with me into the bathroom and help me with one of the more awkward problems for a person without good legs.  The room can be large enough to have a chair, a good wash basin and a toilet that doesn’t have to be crammed into a stall.  It’s much better for me, and better for everyone else as well.  If it has diaper changing facilities, it provides a place where a family can take care of a child’s needs, and solves the terrible problem that a parent has when he or she has two young children of opposite sexes that need help in the bathroom.”

 

It was the model we followed throughout the campus in every building that had a single elevator servicing all floors.  Over the years any number of students, and others, in wheelchairs expressed appreciation for the wonderful, large bathrooms available to them.  Any number of “experts” expressed concern that all of the bathrooms weren’t handicapped accessible.  Those same large, unisex bathrooms were also a blessing for people who got sick and needed to get to a toilet or basin with the help of someone of the opposite sex.  It’s a situation that arises more often than you’d expect.

 

The best thing about the accessibility program at the university was that it took care of itself.  Al and Alex proved to be excellent administrators, filled with energy and enthusiasm, and never short of new ideas.  They saw it as their mission in life to achieve national recognition for having a fully accessible university.  Tim could only dream that other programs on the campus ran so smoothly!

 

My job, at the very minimum, was to make sure that the Law School was one of the programs that ran smoothly and never caused a problem for the president of the university!  It wasn’t difficult.  Hamilton had been an excellent dean for many years and had left the place running smoothly.  We had an excellent faculty, and good students.  The biggest problem for the school is that we were a much better institution than we were perceived to be, as I knew from personal experiences in Washington, D.C.  How we were to overcome the perception that the northern plains contained only farmers and never smart lawyers wasn’t clear to me.

 

It occurred to me that if we wanted to show the folks in Washington that we had some smarts, then we had to put some smart people on display in Washington.  I decided that we needed to develop a Washington semester for our top students that were interested in federal law and administration as well as international law.  If we combined the semester of studies with a legal internship, either for the summer before or after, it would give students a real opportunity to experience Washington, and for Washington to experience them. 

 

Tim and I also felt the need to establish a Washington office for the university.  We needed to be in communication with many of the government agencies that affected the university, the U.S. Office of Education being only one of many, but certainly the most important.  Tim and I decided to start with a staff of three, plus an office manager and secretary.  The three would be a Director, Legislative Liaison (read, lobbyist), and Director of Legal Studies to run the Law School program.  We expected it to expand over the years as it proved its usefulness, and as our Washington student programs expanded.  I was pretty sure that if the Washington semester was a success for law students that it’d be copied by other colleges within the university.

 

How right I was.  Not only was the law program copied (at the undergraduate level by the departments of political science, social work, geology [yes, the government is a major player in the world of geology], and speech; and at the graduate level: Native American studies, international relations, science administration, and agricultural economics being the first), but the whole idea of universities having Washington offices was copied (e.g. by the University of Michigan, but not until 1990!). 

 

Our first rule in staffing the Washington Office, including the selection of faculty to teach in the various Washington programs, was that whenever possible they should be graduates (at some level) of the University of North Dakota.  We felt that it was vitally important that we show off our graduates.   We wanted the world to see that graduates of the University of North Dakota were at least as good, and more than likely better, than their counterparts from other universities, especially the elite schools of the East.

 

Our biggest problem in staffing the Washington Office was in convincing our top graduates that they wanted to spend a couple of years or more on the  East Coast.  The prejudices of the Midwest about the big bad cities of the East were almost as bad as the prejudices of the East about the hick towns and schools of the Midwest.  One specific problem that Tim and I had is that we couldn’t use our personal experiences in Washington as an example of how wonderful it would be to spend a year in Washington.  We simply couldn’t offer housing at Winston House, invitations to Longworth parties, nor dinners with senators and the chief justice as part of the package.  At times like these Tim and I were forced to admit that we’d led a charmed life; had we been Irish, we would’ve called in the “Luck of the Irish.”  As it was, we thought of it as the “Luck of Gay Lovers,” but we knew better.  It was the luck of his physical and mental make up that had led to our extraordinary successes in life.  We couldn’t deny it.  We didn’t try.  We did enjoy it, and still do!

 

We did get our Washington office staffed with good people.  We wanted to rotate the staff as much as possible, both so that people in Washington would meet a lot of our graduates, and so that a lot of our faculty and staff would get the broadening experience of a year or two in Washington.  We did find one of the young lawyers on the law faculty that decided he’d like to actually become a Washingtonian.  After two successful years there, we appointed him Director on a full time basis. 

 

Back in North Dakota, the bar exam was a big issue for me, in two respects.  First, how well were we preparing our students for the exam?  Second, how well did the exam separate those that we wanted in the legal profession from those that we did not? 

 

I knew from our records that our students had a good track record taking the bar exam.  Most took it in one of the Dakotas or Minnesota, and the vast majority passed, and most on the first try.  Those taking the bar in other states did similarly well.  It still disturbed me that most felt that they needed to take a cram course, or do a lot of individual (or small group) cramming before the exam.  But that seemed to be a tradition among law students; it was expected and accepted.  Tim pointed out, “Just because you’re so damn smart, Charlie, and didn’t need to cram, doesn’t mean that more normal humans don’t need to, or that the university should feel that it’s failing in its job because most students need to cram for the bar exam.”

 

The question of whether the bar exam did any good in its stated purpose–to insure that the people admitted to the bar in North Dakota were qualified was another question.  Furthermore, there was an often missed corollary question; were the people that failed the bar and never became lawyers unqualified to be lawyers, or were they kept out of a profession for which they were qualified by a defective screening device?  And, a worse possibility, were the people being kept out better qualified than those being let it?

 

When Hamilton and I talked about these issues, and we did so fairly frequently, we returned to one thing over and over again.  There were actually three screens that you had to get through to become a lawyer and the bar exam was only the last.  The first two were admission to law school and graduation from law school.  The era of admission to the bar by examination following an apprenticeship was gone.  Law school graduation now had to precede taking the bar exam.  Had that made taking the bar exam superfluous?  Was it now more of an initiation rite than a needed screen?  I.e.  If I had to cram like Hell and sweat the bar, so, by God, do the new kids coming along.  And those making decisions about the bar exam were ones who had had to take it.  Not an environment conducive to change.  And, unlike some professions where the legislature could step in and legislate change, in this case the legislature itself was made up mostly of lawyers, who had the same biased history in regard to the bar exam.

 

Despite all of this background, I wanted the University to undertake a research study of the correlation between being a good lawyer and passing  the bar.  That meant trying to come to some objective measure of a good lawyer.  We decided to use a sample of 150 lawyers in North and South Dakota and northern Minnesota.  For each we tried to come up with an evaluation of competence, success, and ethics.  It would have been nice if we could’ve found some quantitative measure of competence, but, for example, win-loss records were at least as much a question of the cases one chose rather than success in pursuing them.  We all knew incompetent lawyers that made a lot of money, and vice-versa.  However, we concluded that in most cases lawyers were pretty good at judging the competence of their peers.  So for each of our sample lawyers we did peer interviews, with a promise of total anonymity.  After some test runs, we determined that four interviews were sufficient, as long as we found substantial agreement among three of the four lawyers interviewed.  When there was less agreement, we interviewed at least three more.  In several of our cases, we simply couldn’t find any kind of agreement as to the competence of the lawyers in question.  That was a little startling when you considered that one of these was a leading defense attorney in Fargo!

 

Success was a little easier to measure.  We looked at promotions, how quickly an attorney in a private firm made partner and similar measures of success, including what we learned in the interviews.  Ethics was covered in the same interviews.  We also looked at disbarments, reported pro bono work, and the nature of the positions the lawyer had taken.  Frankly, we rated public service law and government law higher than large private practices.  It was, to be sure, a fairly subjective effort, but we needed some kind of judgement.

 

All this was done by a group of fifty students who volunteered to work on the project over the school years 1980-81 and 1981-82.  The three lead researchers, who managed all of the data keeping, were the only paid researchers.  Two faculty members were given reduced teaching loads to lead the research planning and methodological development.  I was listed as the lead researcher, and considering the amount of my time that it took, that was a fair assessment. 

 

We ranked our 150 sample lawyers from 1 to 150 on our three scales, competence, success, and ethics.  For a few we were unable to provide a fair ranking in one category or another.  In only one case were we unable to assign a rank in any of the three categories.

 

We realized that a key group was missing: those that had failed the bar and never become lawyers.  We knew who these people were, but couldn’t come up with any methodology to determine what kind of lawyer they might’ve been, had they passed the exam.  So, working only with lawyers who had passed the exam, we had to evaluate how well they did on the exam, and see how well that correlated with our rankings.

 

We started by seeing how many times an individual lawyer had to take the bar exam before passing it.  Then we looked at the score the first time it was taken and the score the last time it was taken (i.e. the first passing score).  We realized quickly that the second score wasn’t very useful, because a person that had failed once and then done fairly well on the second or third try would outscore someone who had done not so well, but passed, on the first try.  We finally settled on the key measure being the number of times it took to pass, and using the average score to arrange people inside the larger groups.  By this method we ranked all 150 lawyers by bar exam score. 

 

Then we applied standard statistical measures to determine the level or correlation between the rankings.  The results certainly didn’t do much to justify the effort put into the bar exam.  There was some correlation between the bar exam scores and the competence ranking.  None of any statistical significance between the bar exam ranking and either the success rankings and the ethics rankings.  Of course, there was never an intention to have the bar exam judge ethics; it would’ve been quite interesting if it had.  But there was little evidence that it judged anything useful. 

 

Our final conclusion was that the bar exam was, in fact, nothing more than an initiation ritual for the legal fraternity.  The research wasn’t going to change much in the world, but it did mean that, for the University of North Dakota at least, we no longer had any justification for looking down on recent graduates or colleagues who had to take the bar exam twice or more.

 

What had we really learned?  Well, what we’d really done was confirmed my suspicions about the bar exam.  But I did feel it was useful information, particularly as we evaluated candidates for various legal positions.  We stopped even asking for bar exam scores, merely asking that candidates show evidence of admission to the bar.  It also affected our attitude toward the exam in the ongoing evaluation of our legal curriculum. 

 

Another important result of the study is that we’d gotten a huge number of students, and quite a few faculty, working together on a single project.  People had worked together very well, and a number of students had distinguished themselves.  When the results were published, I insisted that every single participating student and faculty member be listed as a coauthor.  As the principal investigator I could have been listed first, and then the standard citation would have been, Charlie et al. [The “Charlie” in this slot always bothered people for some reason; I was never sure whether it was the lack of a second name, the fact that “Charlie” was a “first name”, or the fact that it was thought to be a nickname.  Would people have been more comfortable with Charles, et al.?].  The authors were listed in reverse alphabetical order, and the standard citation became Zarter, Fred, et al.  While only one could be first, I got a lot of thank yous for letting it be a student.  I did get a couple of funny looks from other faculty who were convinced it was setting a bad precedent.

 

When he read the conclusions, Tim smiled and said to me, “OK, I don’t want any more tooting of your horn about your success on the bar exam.”

 

“When have I ever tooted my horn....”

 

“Gotcha!”

 

“If we weren’t in a public place, I’d....”

 

“What?”

 

“You’ll find out tonight.

 

He did, you know.  As soon as we were home I grabbed him, carried him upstairs and fucked the daylights out of him.  Trouble is, he loved it.  I don’t have any idea how to punish him; withholding sex would be excessive self-punishment!

 

We weren’t aware of it, and had we been, it wouldn’t have meant anything at the time.  But it is worth noting the following two notes that appeared in the Centers for Disease Control and Prevention’s Morbidity and Mortality Weekly Reports in the summer of 1981: