In another victory for the right to earn a living, the Tennessee Supreme Court has ruled that the government cannot deny admission of a highly qualified attorney to the Tennessee Bar just because he went to law school in another country. The decision vindicates the principle, rooted in the Tennessee Constitution, that the state cannot create arbitrary barriers to honest work and adds to the Goldwater Institute’s record of defending economic liberty.
That principle was tested in the case of Bishoy Fam, a Texas attorney who became the target of the state’s licensing bureaucracy for obtaining a law degree outside of the United States. Government bureaucrats have no business stopping qualified professionals like Fam from doing their jobs. But as the Goldwater Institute and the Beacon Center of Tennessee noted in a brief supporting Bishoy’s constitutional right to earn a living, that’s exactly what the government did. Thankfully, the state Supreme Court put an end to this injustice.
Bishoy is a highly qualified lawyer who earned his law degree from Edinburgh Law School in Scotland and a master of law degree from Southern Methodist University in Texas. He scored high enough on the Uniform Bar Exam to qualify for admission in Tennessee, and he is already licensed to practice law in Texas. But when Bishoy attempted to become licensed in Tennessee, the state’s Board of Law Examiners denied him permission.
The reason: the board failed to take Bishoy’s full education into account. It also ignored any serious consideration of whether denying Fam the right to practice law in Tennessee was necessary to protect the state’s residents.
Bishoy has both a constitutional and a statutory right to earn a living—a right that applies to everyone, even those entering highly-regulated fields like the legal profession.
Ensuring that lawyers are well educated is an important consideration. But the state cannot do so in a way that arbitrarily excludes individuals who received their legal education in a foreign country. Rather, the state must make an individualized determination that weighs all of an applicant’s credentials and considers the requirements of the Tennessee Constitution and the state’s Right to Earn a Living Act.
The Tennessee Constitution protects the right to earn a living through a “law of the land” clause, which dates all the way back to 1215 and the Magna Carta. By 1796, when the state adopted its first Constitution, it was well understood that this clause protected the right to earn a living and was broad enough to make government-granted monopolies legally dubious, because they interfered with that right. The state’s Supreme Court recognized this principle well into the 20th century, even going so far as to call it a fundamental right.
Additionally, Tennessee’s Right to Earn a Living Act, much like the Arizona Right to Earn a Living Act developed by Goldwater, provides a framework for how licensing agencies should go about making such determinations. The Act reaffirms that Tennesseans have a fundamental right to earn a living and explains that the government cannot interfere with this right unless it is demonstrably necessary to protect the health, safety, or welfare of the people.
This is not the first time this has happened in Tennessee. Three years ago, the Board denied another qualified applicant, Violaine Panasci, admission to the Tennessee Bar. Goldwater filed a brief in support of her as well. She, like Bishoy, was granted the right to practice by the Tennessee Supreme Court.
Bishoy’s victory is notable, but it shouldn’t have been necessary. Government agencies— especially the Tennessee Board of Law Examiners—should take the Supreme Court’s consistent decisions on this matter and stop raising barriers that keep qualified professionals from doing their jobs.
You can read the brief here.
Adam Shelton is a Staff Attorney at the Goldwater Institute.
