Lactating During the Bar Exam – Mothers Need a Break to Pump

Nursing mothers should not have to worry about whether they will have time to pump during the bar exam or have to choose between pumping or using the restroom. If a lactating mother is forced to take the bar exam without additional accommodations like extended break time or a private room to pump, it can cause her pain and health issues that will ultimately distract her from performing her best on the exam.

Female students in law schools are beginning to outnumber their male counterparts. According to the ABA, as of 2020 for the fifth year in a row in accredited law schools, women made up 54.09% of students while men account for 45.70% of students.[1]  However, even though more women are attending law school and taking the bar exam, student-mothers are continually disadvantaged due to archaic rules regarding the expression of their milk during the bar exam.

Currently, about half the U.S. states have outdated rules when it comes to breastfeeding or pumping during the bar exam. These rules often include evaluation on a case-by-case basis, meaning each state’s bar examiners determine whether an individual qualifies for pumping accommodations.[2] This results in totally inconsistent outcomes across states. The other half of states do not provide a determined break time for lactating mothers; they only provide that additional break time is needed of no specified duration.

The lack of consistency between states and the uncertainty as to whether additional break time will be granted causes added stress to bar applicants during what is certainly an already difficult period.

Kentucky Case 2015

In 2015, a Kentucky bar applicant appealed to the Kentucky Office of Bar Admissions after they initially denied her request for additional time to pump during the exam.[3] The Bar Examiners originally stated that the existing 30-minute break was enough time for her to pump, ignoring that using the only break to pump would be depriving her and other women from using their break like the other students who would be able to eat, use the restroom, or rest, putting mothers at a disadvantage. She was ultimately represented by the ACLU of Kentucky and with its help, received an additional 20-minute break for each day of the exam.

ABA Resolution

On February 14, 2022, the ABA passed a resolution urging all bar admission boards to provide reasonable accommodations to lactating mothers. The accommodations deemed minimally reasonable are 30-minute break every three hours and a private or semi-private room separate from a restroom where lactating mothers may pump.[4] They also suggest that applicants should be permitted to bring their own pumping equipment into the exam. The resolution recommends the bare minimum for lactating mothers, yet, incredibly, this is still not the standard in any state.

Much work needs to be done to bring equity to the growing number of female bar examinees who are also nursing mothers. There must be an official rule in each state guaranteeing lactating mothers accommodations based on the ABA base-line recommendations.

An official rule granting extra time would provide equal opportunity for success for women taking the exam as is provided their male and non-nursing peers, ultimately moving the legal field to be more open and accepting to practicing mothers. With an increased peace of mind for these women, the legal profession can send a message that raises the likelihood of women from all walks of life to be more confident and perform better on the bar exam.

As a law student and new mother trying to tackle all the challenges that come with breastfeeding and pumping, I will now also face that added difficulty of managing the logistics needed to pump while taking the bar exam. This is in addition to the stress and endurance every bar examinee already faces.

It is my hope that by the time I take the bar exam, Kentucky, along with other states, will have adopted the ABA recommendations. Otherwise, I will have to not only care for my child while studying for the bar but will also have to fight for myself and other lactating mothers women to get adequate and fair accommodations to pump during the exam.

Stephanie Troutman is finishing her 3L year of law school at the University of Louisville Brandeis School of Law. She hopes to work as an attorney in Louisville, Kentucky after graduation. When she is not in class, she enjoys spending time with her husband and new son, Theo.

[1] https://www.enjuris.com/students/law-school-women-enrollment-2020.html#:~:text=Gender%20representation%20in%20U.S.%20law%20schools&text=Specifically%2C%20women%20made%20up%2054.09,45.70%25%20of%20law%20school%20students.&text=The%20number%20of%20people%20who,232%20(0.20%25)%20in%202020

[2] https://www.aclu.org/issues/womens-rights/pregnancy-and-parenting-discrimination/breastfeeding-policies-during-bar-exam?fbclid=IwAR3JvGxFjxNgqruWLhUGYDvz6R_gt92knb4e9RkLZ-8NuHqFbBYKjzWm-Y4

[3] https://www.courier-journal.com/story/news/local/2015/05/09/breast-feeding-mom-wins-breaks-bar-exam/27039269/

[4] https://www.americanbar.org/content/dam/aba/directories/policy/midyear-2022/501-midyear-2022.pdf