Since the outbreak of COVID-19, it’s a sure thing that every law student in the country now knows what “diploma privilege” is even if they never heard of it before. As if this year hasn’t been hard enough, 2020 graduates and bar exam retakers are now also dealing with the uncertainty of whether, when, and how they will take the bar exam in 2020, starting jobs, and getting that first paycheck in months, maybe even years for some.
Imagine, after three years of law school and likely taking on enormous debt, you don’t know when you’re going to be able to start paying your loans, working, or just starting your life in general… all because you have little to no information about your state’s bar exam. The vibe for 2020 so far has been “don’t get too comfortable with any future plans,” which is a gnawing feeling for students who are spending every day for months, studying for an exam. Even in states that have scheduled dates for their bar exam, it remains clear the plans could change.
So, do we need a bar exam? The reason for the bar exam has always been to “protect the public from unqualified practitioners,” but since COVID-19, people are starting to ask, “is the bar exam really necessary, or is it necessary during a time like this?”
It’s no secret that the bar exam has a troublesome history. The first bar exams were oral and were administered in the mid to late 1700s, before law degrees existed. Law schools started to pop up in the 1800s, but bar exams still were being administered and even moved to written exams.
By the 1870s, immigration was on the rise — and the ABA was formed just a few years later in 1878. While it may not have been founded for white men only, no one considered the fact that someone other than a white man would ever join!
Around 1912, the ABA accidentally admitted a few black members. In an effort to find a way to remove them, the ABA took a vote to expel their new members and emphasized the ABA’s goal of maintaining “the pure Anglo-Saxon race” … clearly not a model of compassion.
In fact, one of these three members was William Henry Lewis, the first black Assistant United States Attorney who was appointed Assistant Attorney General in 1910. Six years later, in 1918, the ABA admitted its first woman. And it wasn’t until 38 years later, in 1950, that the ABA finally admitted its first black member.
By 1920, when the anti-immigration viewpoint began to spread further, most states had started administering bar exams. Although the ABA may have a history of poor treatment toward Black, indigenous and people of color (BIPOC), in recent years the ABA has focused on the goal of inclusivity in the practice of law by launching various initiatives for that purpose.
After the inception of COVID-19, many questions arose about the possibility of diploma privilege given the difficulties in administration of the bar exam in the middle of a pandemic. States have made varying decisions related to the bar exam. Some states have allowed online exams, online open book exams, postponed, given priority to their state’s law school’s 2020 graduates, or given provisional admission, and some have done away with the exam altogether.
Utah and Washington have opted to utilize their emergency diploma privilege option. Utah requires that students must have graduated from a Utah law school with an 86 percent first-time bar pass rate, have already been registered for Utah’s 2020 bar exam, graduated between May 2019 and June 2020, must not have previously sat for the bar exam, and must complete 360 hours of supervised practice. Washington on the other hand is allowing anyone who was scheduled to take to July or September 2020 bar exam to qualify for diploma privilege, regardless of what state you attended law school.
Students and professors have been petitioning, writing letters, and taking to social media to express their views on how states should handle the bar exam amidst the pandemic. Professors at Ohio State University wrote a working paper on the possible options to be considered. Some of those included postponement, online exams, small group exams, supervised practice, and of course diploma privilege. Out of all of these options, online exams and diploma privilege have been seeing the most traction among students (despite the technological and socioeconomic issues with administering an online exam). The ABA even passed a resolution on during the 2020 Annual Meeting, urging state courts to defer in-person bar exams during the COVID-19 pandemic by whatever means necessary. Although the final decisions are in the hands of the state courts, the ABA has clearly taken their position on the issue of this year’s bar exam.
Critics of the bar exam have long questioned whether the bar exam actually serves the purpose of protecting the public. A common reproval of the exam is that it is largely based on rote memorization and much of the information is not retained long-term. Additionally, many law practitioners say that the exam just doesn’t reflect real life legal practice because it doesn’t test legal research skills and because a closed book exam isn’t necessary in the real world. The bar exam is also a huge expense for many students and acts as a barrier to prevent people from being able to practice law. There are arguments that the bar is one more barrier to prevent minorities from becoming attorneys, that it prevents the market from becoming oversaturated and keeps the cost of legal services high, and that it is a little bit of both. During COVID, an obvious criticism is that it will be more than just difficult —maybe even impossible — to administer the exam safely and effectively.
There is no doubt that protecting the public from unqualified or incompetent practitioners is a critical goal, but a middle ground that protects the public while considering the current unprecedented national climate is necessary. Professors at Ohio State University discuss a possible option that could meet everyone in the middle, with what they call “diploma privilege plus.” With this option, bar examiners would create online courses that students are required to complete, students must have completed a clinic or internship with an affidavit from their employer certifying that they have the requisite skills, complete bridge-the-gap programs, and satisfy character and fitness requirements.
Because many people are in agreement that it could be dangerous to give students a license to practice law without some sort of verification of their understanding of legal concepts and ability to analyze issues, online courses would satisfy these concerns. Some obvious difficulties with diploma privilege plus are that bar examiners would have to work very hard to get a variety of questions to prevent cheating. There may also have to be some sort of agreement in place where students agree not to discuss, take pictures, or post online anything about the questions in the course. Also, with COVID it could be difficult to find attorneys willing to supervise law students to help them achieve their internship requirement.
Despite the possible kinks that the ABA, NCBE, and the state supreme courts would have to work out, diploma privilege plus seems like a possible solution for many of the concerns that students, professors, practitioners, and bar examiners have during this time. During this process, not only should consideration be given to the extreme difficulties faced this year by all students, consideration should be given to the injustices against minority groups and BIPOCs that have historically been at the hands of the legal profession. Especially considering the disproportional impact of COVID-19 on BIPOCs, if there is any time to begin righting past wrongs, it’s here and now.
It is, and long has been, time to show compassion for one another and search for solutions outside of the box.