Yet about 20 states are still planning in-person exams, including North Carolina in July, sparking protests from students who do not want to take the risk of catching the novel coronavirus.
Three states — Washington, Oregon and Utah — are allowing students with degrees from accredited law schools to enter the bar without taking the exam, and there is a big push by graduates for more states to do so.
In New York, a coalition of law grades and attorneys called United for Diploma Privilege, asked the New York Court of Appeals on Monday for a hearing so they can ask advocating for instate emergency diploma privilege in lieu of administering the bar exam this year.
This post takes an in-depth look at the problems with giving in-person bar exams during the pandemic and, more broadly, about whether it makes sense to retain the exam system. The authors, who call for an end to bar exams, are: Donna Saadati-Soto, Pilar Margarita Hernández Escontrías, Alyssa Leader and Emily Croucher.
Saadati-Soto is a graduate of Harvard Law School, where she was a member of the Harvard Legal Aid Bureau and executive editor of the Harvard Latinx Law Review. She holds a bachelor’s degree in economics from Stanford University.
Hernández Escontrías is an anthropologist and social scientist by training, having completed her bachelor’s degree at Princeton University, a master of philosophy degree at Cambridge University, master and doctorate degrees at Northwestern University, and her law degree this year at the University of California at Irvine. Her research interests lie at the intersection of criminal law, immigration law, social science and critical race theory.
Leader is a graduate of the University of North Carolina School of Law and Harvard College. As a law student, she served as editor in chief of the First Amendment Law Review.
Croucher is a graduate of the University of California at Irvine School of Law, where she was co-chair of the Criminal Law Society and Mock Trial program. She holds a bachelor of science degree from California State Polytechnic University at Pomona. She is an incoming public defender with the Kentucky Department of Public Advocacy.
By Donna Saadati-Soto, Pilar Margarita Hernández Escontrías, Alyssa Leader and Emily Croucher
Twice a year, in July and February, thousands of hopeful lawyers-to-be file into crowded convention centers across the country. After three years of law school and two months of grueling, devoted preparation, we face what we’ve been anticipating since the beginning of our legal education: the bar exam.
The exam is equal parts a standardized test and hazing ritual. We are told the exam exists to weed out potential lawyers who are unfit for practice. Despite little to no empirical evidence that the exam accomplishes this goal, we are told that the exam protects the public. But this summer, in the midst of a global pandemic, that claim feels more dubious than ever.
Across the country, state Supreme Courts and boards of bar examiners have been reluctant to make changes to the legal licensing process to accommodate the challenges of covid-19. In some states, students will still be expected to crowd together by the thousands, sitting for two days of exams with only the protection of a mask and a few feet of distance. Other states have delayed exams, forcing some graduates to put off the jobs they relied upon to begin paying off their student loans. Others have moved exams online, making scores non-transferrable for those who wish to practice in another state.
Recognizing that covid-19 is expected to increase the need for high-quality, scrappy attorneys ready to serve, we have a different solution: Do away with the bar exam altogether.
The big issues
Holding any in-person administration of the bar exam is a significant public health hazard. The circumstances around covid-19 have hardly improved. According to the Centers for Disease Control and Prevention, reported cases of covid-19 have continued to rise. Given the continued infection rate, potential second spike, and the nonavailability of a vaccine, holding bar exams as usual —— or even in September or October as some jurisdictions have suggested —— means risking the lives of students, proctors, their family members and members of the public living in towns with exam sites.
The plan to hold a bar examination in person during the global pandemic indicates a serious lack of awareness for best practices. While most jurisdictions have indicated that test takers will be expected to engage in proper social distancing, many have failed to describe what this will look like. Others have been disturbingly upfront about a lack of appropriate safety protocol, stating that test takers will not be expected to wear masks once they are seated for the exam. Some jurisdictions such as Kentucky have tried to make exams safer by capping the number of test takers per site.
Even if this were effective, administration of the bar examination would be a logistical nightmare for both the state bars examiners and for students. The chances of state bars appropriately implementing test site caps are slim. Should states seek alternative ways to accommodate all exam takers, they would need to seek much smaller venues now and begin to give notice to test takers now. For some, the bar examination is at the end of July. For others, the beginning of September. Test takers need time to make the appropriate arrangements in time for test day.
Nonetheless, it is critical to highlight this reality: even with distancing precautions and smaller testing venues, the risk of transmission of covid-19 still exists, and many test takers — especially those who are immunocompromised or live with someone who is immunocompromised — will be forced to opt out of the exam altogether. The existing health conditions of our colleagues and their families should not be the reason law graduates cannot become licensed attorneys.
Shifts to an online exam
Many jurisdictions recognize the risks associated with holding an in-person exam during a global pandemic. Their response has been to move the exam to an online format. But an online exam simply will not work either. For starters, an online administration of the bar exam will privilege those exam takers with the social, economic and structural resources to set up the necessary exam infrastructure needed to take a 12-hour, two-day online test. Some of these privileges include access to a well-performing laptop or computer, speedy and consistent Internet, and a space to quietly take an exam over the course of two days without distractions.
Libraries and law schools throughout the country remain closed, and we just do not know when they will open again and with what restrictions. Thus, it is unlikely test takers could use the computers and Internet connection at a public library to take the exam. So are we supposed to go out and purchase high-speed, corporate-quality Internet? New laptops? A desk? A monitor?
And even thinking about the possibility of technical difficulties on test day gives us immense unease. One glitch with the software or our computers and, bam ― game over, you just got disqualified from the exam. Graduates are already struggling to find the necessary space and technological resources to study for the bar exam. Their stresses are only exacerbated by thinking about how to put the requisite infrastructure in place for online test day.
Other jurisdictions, still, hope to address the problem by pushing off the exam. Many such as Maryland, California and D.C. have delayed test administration until September or October. It seems unlikely that an in-person test would be safe in a handful of months. But even if it were, a delayed exam provides no real solution for exam takers or the communities that they will serve. For most of us, the exam is a prerequisite for working. Our employers hired us with the belief that we would be bar-certified attorneys within the calendar year.
Delayed exams combined with the economic downturn has meant that employers have delayed start dates or revoked offers altogether. Being left unexpectedly without employment is an increased challenge for exam takers, many of whom were already on tight budgets to make rent and buy groceries through the exam at the end of July. Stretching our already thin budgets into September, October and beyond is nearly impossible.
As exam dates continue to be pushed back, more and more exam takers will have to take nonlegal jobs just to survive. Given the challenges of taking and passing the bar exam while working, the sad truth is that many of these graduates may effectively lose the opportunity to practice entirely.
Further delays of our admission to the bar and potential delays in employment start date are going to cost us our health insurance for those of us who were on a school-subsidized insurance plan. As we noted above, many employers are pushing back start dates in light of the bar exam getting pushed back, and our school plans will run out before then. Plus, for those of us in California, if we are without insurance for longer than a three-month period, we will be assessed a $750 tax penalty. Imagine being uninsured in the middle of a global pandemic.
Even in the best of times, studying for the exam itself is no small feat. Most people spend two and a half months holed up in the library for 40-hour weeks, doing nothing but watching lectures and drilling practice problems. “Bar prep,” as it’s called, is generally understood as the most difficult, intense period of law students’ and recent graduates’ lives. But, we are not in the best of times; we are in the worst of times.
This year, students are doing all of that confined to the homes we share with others, where we may be struggling to entertain children or care for other relatives. We cannot meet up with our study groups or drop by a professor’s office for help with a particularly sticky problem. And we can’t even maximize our productivity.
It’s a truism among those who have survived the bar exam that test takers must work carefully to “peak” in their performance on test day. It’s important not to study too much too soon, or we will burn out. But waiting too late to start memorizing the hundreds of concepts we need for success means we will run out of time. In a constant state of limbo about when or if our exams will go forward, studying strategically is impossible.
As we study for the bar exam, it is repeatedly drilled into our heads that the exam is intended to be a test of minimum competence. But this year it is not. It is a test of who has the support and privilege to prepare to do the unthinkable in the midst of the most destabilizing time in our collective history. Those who do not will fail.
The solution: diploma privilege
Yes, the bar exam has been the traditional gate-keeping mechanism for the legal profession. But that certainly does not make it a justifiable gate-keeping mechanism, especially under current circumstances and with scarce empirical evidence that it actually measures competence. For these reasons, we propose a solution: diploma privilege.
Under a diploma privilege licensure model, those individuals seeking admission to the bar are granted licensure upon successful completion of law school requirements and graduation from law school. Applicants are also required, under diploma privilege, to meet other requirements for admission to the bar, such as passage of the Multistate Professional Responsibility Examination and a positive Moral Character and Fitness determination. As we have argued elsewhere, we believe that diploma privilege is the only ethical option. Further, it offers a visionary approach.
Diploma privilege may sound radical, but it is not without precedent. We are not asking jurisdictions to go out on a limb and do something entirely new. Wisconsin has had diploma privilege in place for decades. For several years, New Hampshire has had in place a similar program allowing University of New Hampshire graduates who meet certain requirements to be admitted as lawyers without examination. In fact, the president of the National Committee of Bar Examiners (NCBE) acquired licensure via Wisconsin diploma privilege.
In light of the global pandemic, three other states have led the way in adopting diploma privilege for 2020 graduates. On April 21, the Utah Supreme Court granted diploma privilege to all Utah graduates. In the past few weeks, thanks in large part to advocacy efforts by those scheduled to take the exam, both Washington state and Oregon issued orders granting diploma privilege to students from ABA-accredited law schools.
And even if diploma privilege were without precedent, so what? The general public might be surprised to learn the bar exam is almost entirely divorced from the work we will do as attorneys. The exam is entirely closed-book, an exercise in memorization more than anything else. The practice of law requires careful research and checking (and double-checking) what we believe we know. Lawyers who practice based on a generalized form of the law they have memorized from flashcards risk malpractice. But this is exactly what the bar expects us to do.
We don’t even know if the bar exam measures competency. Studies linking the bar exam to protection of the public or success as a lawyer are scarce. Some state boards of bar examiners have come right out and said as much: In California, a state with a notoriously low bar passage rate, the state bar has admitted that what constitutes minimum competency has never even been identified. Maybe the exam has value, maybe it does not. We just do not know.
What we do know is this: Even in the average year, the bar exam is keeping black, indigenous, and people of color (BIPOC) out of the legal profession. In fact, the very origin of the bar exam is rooted in anti-blackness. In 1914, the American Bar Association (ABA) accidentally admitted three black lawyers, leading to further measures to keep the profession white. The ABA continued to explicitly exclude black applicants until 1943. As it became clear that overt racism would no longer be allowed, the ABA began to use the bar exam and law school accreditation to keep minorities out of the profession.
The bar exam as a discriminatory gate-keeping mechanism is not a remnant of a distant past. Its role in keeping BIPOC out of the profession prevails today. In California, for example, the February 2020 exam had a historically low pass rate of about 27 percent. Most alarming, however, is that only 5 percent of black first-time bar exam takers from California ABA-accredited law schools passed the February 2020 bar examination. Five percent. The data regarding bar exam passage rates for BIPOC is unacceptable at best, unconscionable at worst. It only adds insult to injury when we consider that every salaried leader of the NCBE is white.
This raises the question: Why are we fighting so hard to uphold a licensing system that is not evidence-based and was literally designed to exclude minority applicants? As applicants, we do not know the answer to that question. But we do know that this year, this system is needlessly putting our lives at risk. And we know that there is a better option.
We do not contend that diploma privilege cannot come with reasonable, additional requirements. States that have granted diploma privilege have done so putting in place a number of conditions that applicants must meet to be granted privilege. Perhaps states can require that applicants complete a set number of supervised practice hours in a given time frame. Perhaps states can require applicants to complete additional Continuing Legal Education courses. If state Supreme Courts are truly concerned about protecting the public through licensing, they have the power to accomplish this goal through these or similar conditions.
As 2020 graduates, many of us were suddenly booted from our law school housing, and scrambled to find alternative places to live in a matter of days. We completed the remainder of law school entirely online. We have lost our part-time and full-time jobs, and many of our long-term employment arrangements and start dates are up in the air. We have taken on new care-taking responsibilities for children or parents. Many of us have been involved in the ongoing movement for black lives. Through all of this, we have more than proved our grit, determination and ability.
We should not be forced to jump through yet another hoop that puts our lives and livelihoods at risk, in the name of tradition. We must do better.