Does the Civil Rights Act prohibit &quot;unnecessary&quot; college degree requirements? Many jobs require applicants to have a college degree, when the skills developed at college are not necessary to do the job, and the degree is not required to be in any particular field. In Griggs v. Duke Power Co., 401 U.S. 424 (1971), the Court held that: The [Civil Rights] Act requires the elimination of artificial, arbitrary, and unnecessary barriers to employment that operate invidiously to discriminate on the basis of race, and, if … an employment practice that operates to exclude [a racial minority] cannot be shown to be related to job performance; it is prohibited, notwithstanding the employer's lack of discriminatory intent … The Act does not preclude the use of testing or measuring procedures, but it does proscribe giving them controlling force unless they are demonstrably a reasonable measure of job performance. Requiring a college degree seems to operate invidiously to discriminate on the basis of race because there is a significant racial disparity in U.S. educational attainment: It has been argued that Griggs &quot;may have enormously boosted the number of students in college and may have increased the differential in income between high school and college graduates,&quot; and &quot;it is not clear that having a college degree requirement is legal under the Griggs standard&quot;: Griggs v. Duke Power: Implications for College Credentialing (2008). Griggs was decided more than 50 years ago. Has anyone argued that college degree requirements are racially discriminatory and challenged them on the basis of Griggs? What, if anything, have the courts said about this argument?
Griggs has never been used to invalidate a requirement of a college degree, on that grounds that this has a disproportionate impact. Moreover, this case is barely even still good law, at least according to one thoroughly reasoned U.S. District Court opinion (even though the opinion does cite an unusually large share of dissenting and plurality, but not majority, opinions, and so should be taken with some grain of salt): The requirement of discriminatory intent is plain not merely from the fact that discrimination is an inherently intentional activity, but also from the text of § 2000e–6, which literally speaks of intent and “resistance.” The Attorney General's “reasonable cause” must underlie a belief “that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment” of Title VII rights, “and that the pattern or practice is of such a nature and is intended to deny the full exercise” of such rights. 42 U.S.C. § 2000e–6(a) (emphasis added). The Court is well-aware of Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971) and its progeny, which hold that employers who apply objective, neutral criteria in hiring and promotion may be found guilty of “unintentional discrimination” if such neutral standards have a “disproportionate” impact upon any identified group. The Griggs rationale is inapplicable to the instant case for two reasons. First, the literal text of § 2000e–6 described above, by which this case is brought, clearly mandates discriminatory intent as a required element of the cause of action. Whatever the influence of Griggs might be upon other Title VII actions, the Attorney General is held to this higher standard. Second, the Supreme Court has overruled Griggs sub silentio. The concept of “unintentional discrimination” is logically impossible. Title VII was never intended to require employers to hire by racial, sexual, or other quota applicants who failed to qualify for a job because they could not meet some objective requirement. Indeed, Griggs conflicts directly with § 2000e–2(j), which prohibits imposition of hiring quotas; § 2000e–2(e), which protects bona fide occupational qualifications; § 2000e–2(h), which protects the use of “ability tests” not intended to discriminate unlawfully; and § 2000e–2(l ), which prohibits the alteration of test results or the application of different testing criteria on the basis of race, color, religion, sex or national origin. Subsection (1) was added as recently as 1991, and reflects Congress' frustration with that sort of judicial inversion of Title VII which led Justice Scalia to lament the law was written “[w]ith a clarity which, had it not proved so unavailing, one might well recommend as a model of statutory draftsmanship.” Johnson v. Transp. Agency, Santa Clara Cty., Cal., 480 U.S. 616, 657, 107 S.Ct. 1442, 1465, 94 L.Ed.2d 615 (1987) (Scalia, J., dissenting). The Supreme Court has repeatedly refused to extend Griggs' rationale to Equal Protection analysis, holding that discriminatory intent, not disproportionate impact, is necessary to show a denial of Equal Protection. Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 2049, 48 L.Ed.2d 597 (1976); Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264–65, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977); Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 273, 99 S.Ct. 2282, 2293, 60 L.Ed.2d 870 (1979); Hernandez v. New York, 500 U.S. 352, 362, 111 S.Ct. 1859, 1867, 114 L.Ed.2d 395 (1991). The Supreme Court likewise rejected the application of Griggs to the Civil Rights Act of 1866, 42 U.S.C. §§ 1981, 1982, finding that the Civil Rights Act and the Equal Protection Clause “were all products of the same milieu and were directed against the same evils.” General Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 391, 102 S.Ct. 3141, 3150, 73 L.Ed.2d 835 (1982). Title VII of the Civil Rights Act of 1964 is obviously likewise born of the same environment, directed against further manifestations of the same evils. And in Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), the Supreme Court held that deprivation of due process under 42 U.S.C. § 1983 must also be intentional. In the landmark case of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 806, 93 S.Ct. 1817, 1826, 36 L.Ed.2d 668 (1973), the Supreme Court began its retreat from Griggs, holding that “in the absence of proof of pretext or discriminatory application” of a reason proffered to explain a challenged employment act or practice, Griggs is not applicable. As the Court later realized, &quot;Even a completely neutral practice will inevitably have some disproportionate impact on one group or another. Griggs does not imply, and this Court has never held, that discrimination must always be inferred from such consequences.&quot; City of Los Angeles Dept. of Water &amp; Power v. Manhart, 435 U.S. 702, 710 n. 20, 98 S.Ct. 1370, 1376 n. 20, 55 L.Ed.2d 657 (1978). Where the Supreme Court has reaffirmed Griggs, it has lately done so only for other purposes, i.e. to extend the disparate impact analysis' requirement that an actual practice be demonstrated to cases targeting subjective application procedures under disparate treatment theory, Watson v. Fort Worth Bank &amp; Trust, supra. Most importantly, however, the Supreme Court has explicitly eviscerated Griggs: &quot;Nor do we think it is appropriate to hold a defendant liable for unintentional discrimination on the basis of less evidence than is required to prove intentional discrimination. Rather, the necessary premise of the disparate impact approach is that some employment practices, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to intentional discrimination.&quot; Watson, 487 U.S. at 987, 108 S.Ct. at 2785. The Court proceeded to explain that in Griggs, the employer had a history of overt intentional discrimination. Thus, the ingredient necessary to transform a neutral practice into the “functional equivalent” of a Title VII violation is prior history of overt discrimination. See Regents of the Univ. of California v. Bakke, 438 U.S. 265, 309 n. 44, 98 S.Ct. 2733, 2758 n. 44, 57 L.Ed.2d 750 (1978) (plurality opinion). The intent to discriminate may have been demonstrated at some point in the past, but it is nevertheless a required element of all Title VII complaints, including those based on disparate impact theory. Accord Lorance, 490 U.S. at 904–05, 908–09, 109 S.Ct. at 2265, 2267 (discriminatory intent, not mere impact, required to challenge seniority system under Title VII). It can safely be stated that the rule of Griggs now stands as a distinction without a difference. Although popularly derided as a “quota bill,” section 2000e–2(k), setting forth the burden of proof in disparate impact cases, did not negate the element of discriminatory intent. The subsection clearly announces that it is intended to set forth methods for establishing “an unlawful employment practice.” A primary element of “an unlawful employment practice” as described in 42 U.S.C. §§ 2000e–2(a)(1) &amp; (2) is that the act be taken “because of such individual's race, color, religion, sex, or national origin.” (emphasis added). “The words of Title VII are not obscure ... By any normal understanding, the phrase ‘because of’ conveys the idea that the motive in question made a difference to the outcome.” Price Waterhouse v. Hopkins, 490 U.S. 228, 281, 109 S.Ct. 1775, 1807, 104 L.Ed.2d 268 (1989) (Kennedy, J., dissenting). C Apart from the question of whether discriminatory intent must be present in a disparate impact case, the Supreme Court has confirmed time and again that the alleged pattern or practice in a disparate impact case must be an intentional act deliberately engaged. To make a mere prima facie case, the United States must establish that sex discrimination was North Carolina's “standard operating procedure—the regular rather than the unusual practice.” Teamsters, 431 U.S. at 336, 97 S.Ct. at 1855. &quot;The ‘pattern or practice’ language ... was not intended as a term of art, and the words reflect only their usual meaning ... ‘[A] pattern or practice would be present only where the denial of rights consists of something more than an isolated, sporadic incident, but is repeated, routine, or of a generalized nature ... The point is that single, insignificant, isolated acts of discrimination by a single business would not justify a finding of a pattern or practice.’&quot; Id., at n. 16, quoting Sen. Humphrey. D Of course, plaintiffs must demonstrate not only the existence of an intentional, identifiable “pattern or practice” of resistance which causes the “impact,” but also the nature of the disparity. A disparity can be claimed only by reference to an identified norm from which the disparity is claimed. Without some root foundation for what would be the natural, non-discriminatory result, it is impossible to claim that any state of affairs reflects the “disparate” after-effects of an unlawful act. E Thus, in order to invoke the Court's jurisdiction over an allegation of discrimination based upon disparate impact, there must be some case or controversy surrounding the government's “reasonable belief” that the defendant has: (1) willfully and intentionally engaged in (2) an identifiable pattern or practice of resistance (3) intended to unlawfully discriminate, and (4) that this activity has actually caused an impact which is (5) visibly disparate from what must otherwise be the non-discriminatory norm. “[T]he ultimate burden of proving that discrimination against a protected group has been caused by a specific employment practice remains with the plaintiff at all times.” Wards Cove, 490 U.S. at 659, 109 S.Ct. at 2126, quoting with emphasis Watson, 487 U.S. at 997, 108 S.Ct. at 2790. U.S. v. State of N.C., 914 F. Supp. 1257, 1265–67 (E.D.N.C. 1996).
There are exemptions, and "justifications", in 24 CFR 100. The exemption is 100.10: (c) Nothing in this part, other than the prohibitions against discriminatory advertising, applies to: (1) The sale or rental of any single family house by an owner, provided the following conditions are met: (i) The owner does not own or have any interest in more than three single family houses at any one time. (ii) The house is sold or rented without the use of a real estate broker, agent or salesperson or the facilities of any person in the business of selling or renting dwellings. So such a restriction could be allowed if e.g. you live in the house and rent only a few rooms, or a single family home marketed and managed in the right way. There is also an exemption for religious organizations and private clubs allowing rental to members only. 100.500 lays the groundwork for disparate impact hot water. It says: (a) A practice has a discriminatory effect where it actually or predictably results in a disparate impact on a group of persons or creates, increases, reinforces, or perpetuates segregated housing patterns because of race, color, religion, sex, handicap, familial status, or national origin. So only renting to students in a particular seminary would most likely have a disparate impact. There is, however, the possibility of justifying the policy, following 100.500: (b) (1) A legally sufficient justification exists where the challenged practice: (i) Is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests of the respondent, with respect to claims brought under 42 U.S.C. 3612, or defendant, with respect to claims brought under 42 U.S.C. 3613 or 3614; and (ii) Those interests could not be served by another practice that has a less discriminatory effect. (2) A legally sufficient justification must be supported by evidence and may not be hypothetical or speculative. The burdens of proof for establishing each of the two elements of a legally sufficient justification are set forth in paragraphs (c)(2) and (c)(3) of this section. So let's say that the offended party has made the case that the practice will have a discriminatory effect, then the accused can set forth the aforementioned justification: (c)(2) Once the charging party or plaintiff satisfies the burden of proof set forth in paragraph (c)(1) of this section, the respondent or defendant has the burden of proving that the challenged practice is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests of the respondent or defendant. (c3)(3) If the respondent or defendant satisfies the burden of proof set forth in paragraph (c)(2) of this section, the charging party or plaintiff may still prevail upon proving that the substantial, legitimate, nondiscriminatory interests supporting the challenged practice could be served by another practice that has a less discriminatory effect. The crux of the matter is having a "substantial, legitimate nondiscriminatory interest", i.e. why would you want to rent to only seminary students.
Short Answer Can a university continue with their affirmative action program by rejecting all government funding? Yes. The Status Quo There are twenty-two higher educational institutions in the United States that did this prior to the 2023 ruling (in all but one trivial case, in part, in order to affirmatively escape the requirements of Title VI, so that they could discriminate in furtherance of a religious mission). Most of the schools on the list refuse not only federal but also state and local government aid. Specifically, they are: Aletheia Christian College (Idaho) Bethlehem College &amp; Seminary (Minnesota) Boyce College (Kentucky) Christendom College (Virginia) Faith Bible College (Maine) Grove City College (Pennsylvania) Gutenberg College (Oregon) Hildegard College (California) Hillsdale College (Michigan) Mid-America Baptist Theological Seminary (Tennessee) Monticello College (Utah) Mount Liberty College (Utah) New College Franklin (Tennessee) New Saint Andrews College (Idaho) Patrick Henry College (Virginia) Pensacola Christian College (Florida) Principia College (Illinois) Sattler College (Massachusetts) Southern Baptist Theological Seminary (Kentucky) Southwestern Baptist Theological Seminary (Texas) Weimar University (California) Wyoming Catholic College (Wyoming) There used to be more, but most of the hold outs eventually gave in, or ceased to be. Notably, the vast majority of parochial colleges and universities in the U.S. are subject to Title VI because they accept federal funds and federal financial aid. All of them, except Monticello College in Utah, are non-profit colleges or universities with a religious affiliation or mission. Several are partially, or entirely, seminaries devoted to training future clergy. Monticello College has only four teaching faculty (including its President) and two administrators, has no more than 30 students at any one time, was apparently established in 2010, was &quot;for profit&quot; until at least 2019, and is unconventional to the point of barely being recognizable as a conventional institution of higher education, for example, including a substantial manual labor component and teaching courses in blocks of two days to three weeks. Monticello also voluntarily adheres to a non-discrimination policy comparable to the one that applies to Title VI institutions. Only two of them, Grove City College and Hillsdale College, have 1,200 or more students. By comparison, there are 3,982 colleges and universities in the United States, so this is less than 0.6% of U.S. colleges and universities, and a far smaller percentage of U.S. college students as all of these institutions are all small by college and university standards. About half of private non-profit colleges and universities (about 800 of them) have 1,000 or fewer students, so about 2.5% of small private non-profit colleges do not receive federal funding, but only 0.25% of larger private non-profit colleges and universities do. All &quot;for profit&quot; colleges or universities in the U.S. (almost 700 of them) rely upon federal financial aid and/or federal funding. As a practical matter, almost all of the 99.4% of colleges and universities in the U.S. that rely upon federal financial aid and/or federal funding could not sustainably continue to operate with anything close to their current business models without this federal support. They would either have to close, or would have to radically restructure themselves. Non-Title VI Considerations Also, while not quite as stringent as Title VI, the U.S. tax code also denies tax-exempt status to certain non-profits that discriminate based upon race. See 26 U.S.C. § 501(i) (social clubs). Most higher educational institutions are not subject to this requirement directly, but for example, the Rotarians could not do charitable work for a college that discriminated based upon race as interpreted by the 2023 SCOTUS ruling. Additional Considerations Regarding Impact Few private colleges and universities have much of a reason to withdraw from federal funding to allow them to continue affirmative action programs based upon race because not all that many of them have admissions policies which are strongly affected by affirmative action based upon race. Affirmative action really only has a big impact at colleges and universities that are highly selective, like Harvard and the University of North Carolina, whose admissions policies were litigated in the U.S. Supreme Court. But these universities are highly atypical. As noted in a recent article in the New York Times, while Harvard admits just 4% of applicants, and UNC admits 20%, just 6% of U.S. four year college students attend a college with an admissions rate of 25% or less (just 22 colleges and universities admit 10% or fewer of the prospective undergraduate students who apply). Another 10% of U.S. four year college students attend a college with an admissions rate of more than 25% but less than 50%. Meanwhile 56% of U.S. four year college students attend a college that admits at least 75% of its applicants. While the impact of ending affirmative action at highly selective institutions is likely to be significant, this is the exception rather than the rule. The impact of ending affirmative action based upon race in less selective institutions, while not zero, is barely noticeable. The effects of ending race based affirmative action at these school is also much more easily mitigated with race-neutral programs (like preferences for first generation college students, low income college students, or students with high class ranks in high school) with similar effects in student diversity, in less selective institutions, than it is at highly selective colleges and universities. Also, less selective colleges and universities already have a disproportionate share of students who currently tend to benefit from affirmative action as show in the chart from the same New York Times story below:
If it is &quot;sufficiently obvious&quot; that a law is unconstitutional, evidence obtained relying on that law can probably be suppressed. Two important principles help discern the answer to this question: The Constitution prohibits searches that are &quot;unreasonable.&quot; The existence of a warrant authorizing a search is strong evidence that a search is reasonable, but the warrant is neither necessary nor sufficient to make a search reasonable. The Exclusionary Rule is designed to do one and only one thing: discourage law enforcement misconduct. Therefore, evidence obtained in reliance on a defective warrant will only be suppressed if it was &quot;objectively unreasonable&quot; for the officer to rely on that warrant. Courts typically find reliance on a warrant to be objectively unreasonable when the warrant was obtained through deception, when it authorizes a search of a person or place with no connection to a crime, or when it fails reasonably describe the person or place to be searched. It is likely also possible to have evidence suppressed because the warrant authorized a search for evidence of the violation of a plainly unconstitutional law. That was the question in Illinois v. Krull, 480 U.S. 340, (1987), where a defendant was prosecuted based on evidence obtained in reliance on a law that was later ruled unconsitutional. The Illinois Supreme Court held that because the law was unconstitutional, the search relying on it was also unconstitutional, and the evidence obtained thereby must be suppressed. But the Supreme Court reversed, holding that the evidence need not be suppressed because &quot;this defect in the statute was not sufficiently obvious so as to render a police officer's reliance upon the statute objectively unreasonable.&quot; This suggests that if a statute's unconstitutionality is sufficiently obvious, that an officer seeking evidence in reliance on it would be objectively unreasonable, and that that evidence would therefore be subject to suppression. I don't know of it ever happening, but it's easy enough to make up ridiculous laws that might satisfy this standard. For instance, if Congress passed a law permitting police to write their own warrants to search any mosque at any time, evidence from that search would likely be suppressed. Or if Congress passed a law prohibiting all black women from criticizing the president, evidence that a defendant had violated that law would likely also be suppressed, even if it had been obtained with an otherwise validly issued warrant. Of course, most laws are not as obviously unconstitutional as those, so a challenge on these grounds will likely revolve around what exactly should have alerted a reasonable officer to the statute's consitutional infirmities. Likewise, an officer executing such a search is exposed to Section 1983 liability for an unreasonable search or seizure if his reliance on the warrant is not objectively reasonable. As always, there will be a question of whether the officer is entitled to qualified immunity, but that question will turn as always on whether his violation of the law was clearly established. If he is searching for evidence of black people voting, qualified immunity is going to be a hard sell. If he's searching for evidence that a defendant violated a law in a gray area, qualified immunity may save him.
I have a really good pizza place near my home but the bastards won't deliver when I go interstate! Now, that's discrimination! Yes, it's discrimination. However, it's not unlawful discrimination. Discrimination is not unlawful unless it is on the basis of a protected class. Geography isn't a protected class of itself. It can be if it's used as a proxy for a protected class, such as excluding certain neighbourhoods which correspond with racial or religious groups, but that's not the case here.
Yes! Some states have laws against it. RCW 9A.60.070, for example, makes it a gross misdemeanor in Washington. (2) A person is guilty of knowingly using a false academic credential if the person ... falsely claims to have a credential issued by an institution of higher education that is accredited by an accrediting association recognized as such by rule of the student achievement council: (a) In a written or oral advertisement or other promotion of a business; or (b) With the intent to: (i) Obtain employment; ... (5) Knowingly using a false academic credential is a gross misdemeanor. If a state does not have a law specific to the issue, it depends on whether the statement is made under penalty of perjury under state law. It is not uncommon to have an employment application that asks for educational information and which you sign under penalty of perjury. In addition, if the employer is a federal agency, for example, or if there is otherwise an argument that the resume is within jurisdiction of a branch of the Federal Government, the crime of making false statements could theoretically be used against a person. In reality, in a state without a law specific to this issue, it is much more likely to be a really bad idea that will tank a person's career than it is to result in a criminal charge. Except perhaps if they do it during an FBI investigation or as part of a security clearance process.
In the U.S, at least for some time in our not too distant history, there were a substantial number of jurisdictions that allowed people to "read in" to a law degree, meaning exactly what @cpast said in his comment - that people who were so inclined and with the intellectual aptitude to understand old english common law and modern stare decisis (essentially, appellate precedent), as well as statuary and regulatory texts, could simply study their way to a law degree. It was assumed (quite rightly) that if one could manage to pass a 2-4 day bar examination that they should be considered eligible to apply for a license to practice through admission to the bar just as legitimately as those people who earned their juris doctorate. This is keeping in mind that passing the exam does/did not guarantee licensure/being sworn in, as in depth background checks and ethical fitness analysis are also conducted which form the final determination for fitness to be admitted. California was, for a long while, known as the most challenging state's bar exam to pass. For a long while, it was a true "read in" state, meaning anyone had the right to take the bar exam. Because of this, the California Penal system actually turned out quite a few amazing street-smart criminal lawyers; men, who spent years in prison reading the law, who came out to take and pass the bar exam. It is also true that in CA, as well as other states, conviction of crime (even felonies) does not necessarily mean exclusion from licensure based on failure to pass the background/fitness inquiry (it can, but it isn't automatic if you can establish rehabilitation). Excluding crimes of moral turpitude, such as perjury, embezzlement, certain thefts where a fiduciary duty existed (those were the only crimes that were considered automatically exclusionary), one could be allowed to make a plea of rehabilitation to the Board of Bar Overseers ("BBO"). Crimes that account for the bulk of prison sentences, like aggravated violence, drug dealing/trafficking, etc. are not crimes of moral turpitude. However, there are no longer any states in the U.S. where you can truly "read in" to the law. @Jason Aller is exactly right, that in the early 80's the ABA, as well as the association of accredited legal institutions (not to be robbed of their mortgage of the mind) lobbied and cajoled the practice right away. There are still the states that allow an education of apprenticeship, whereby rather than being self-taught, you are allowed to be mentored by a senior attorney with a certain level of experience, where they would attest that you worked a certain number of hours (usually each week or month &ndash; typically something akin to full time) under their tutelage. Each of the states Jason Aller cites has some form of this. After a certain number of years, those individuals are allowed to sit for the bar. However, that does not mean they can be lawyers ... even if they pass. I recently read a journal article discussing how each year more and more states seem to further delimit who can be lawyers, for the sole purpose of not wanting to create too much competition in the profession. Background analysis now puts a great focus on financial responsibility: meaning if one's credit score isn't up to par they can be shut out of the practice because it's argued that if they cannot be financially prudent with their own finances, they cannot be trusted to manage client funds. About a quarter of all people who take the bar on the first shot fail. Those who don't pass by the 3rd try usually never do, and if they do, they are unlikely to practice as they are unlikely to get jobs (unless they hang out a shingle, so to speak). Most states require having graduated from an accredited law school. Massachusetts has at least one unaccredited law school (it was two, but I believe one just got accredited). A grad of that school can only be licensed in MA, nowhere else, except maybe one or two other states. More and more states are also deciding not to let lawyers from other states practice in their jurisdictions by "waiving in", which is where you can pay to get licensed and transfer your scores (instead of experienced lawyers having to take the bar again) from reciprocal states. It is a club where membership is purposely limited and continues to be more and more exclusive (and not in a good way). You can probably see from all these trends that there is a big push to keep people out, for no other reason than fear of competition. If this trend holds, it seems likely that the apprentice's right to "read in" will sooner, rather than later, become altogether a thing of the past too. Law school education is undoubebly valuable in that it teaches you how to learn in a socratic way. It shows you how to spot issues and understand archaic text, and helps you to understand the rules of procedure in a theoretical and comprehensive way. However, for most, what it does not do is teach you how to practice law. When I was in law school, I was lucky enough to go to a school with the choice of a clinical semester or year (I also broke the rules and worked full time as a law clerk, year round, from year one). Many schools had no clinical programs. Students who weren't able to do these things didn't know what a pleading was or how to draft one, had never seen a motion for summary judgment, had no idea how to take or defend a deposition &amp;ndash all things lawyers must be good at doing and that are not taught in law school. At that time, over a decade ago, the machination of legal scholars had contemplated adding yet another year to law school curriculum, to require a clinical year, so that graduates did have a clue what practicing law was all about. Opponents argued that instead the 3L elective year should just be traded from classroom to clinical (rather than adding another year and another 40-70 thousand tuition dollars). Neither side could agree so neither has become the norm. But what has happened since then is that more and more states have limited the right to take the bar exam by right, from having learned the law thru the practice of "reading in", which had already become the highly regulated practice of "documented apprenticeship". My guess would be that those persons who learned by apprenticeship may not be as adept at picking apart cases or legal research as a law school grad (but may be), but they would almost certainly be more informed in the actual practice of law. Here is a fairly comprehensive article about the U.S. states that allow it, and what their rules are for completing the apprenticeship "degree". It cites that of nearly 90k people taking the bar, 60 took this route. From the perspective of a practicing lawyer with what I like to call "a mortgage of the mind", I find this trend pretty disheartening. One shouldn't need to pay a quarter-million dollars to gain the knowledge and right to sit for the bar.
Depends on your definition of "require". In case of at-will employment — where the employer can fire an employee for any or no reason (other than that being discrimination of a member of the protected groups) — it would be perfectly legal for the employer to fire an employee who does not comply with that request. But that aside, no (unless such testing was a term of the employment agreement, be it written or verbal). No party to a contract can require the other party to perform what the contract terms did not include.