The COVID-19 pandemic has helped reveal just how outdated and discriminatory the New York bar exam is, and why we should strongly consider doing away with it. New York must take this opportunity to permit diploma privilege for law grads, not just for the class of 2020, but into the future.
Over several weeks, in response to the pandemic, the New York Board of Law Examiners (BOLE) announced a series of restrictions to the 2020 bar exam. These culminated in the ultimate decision to cancel the in-person exam in favor of an online-only version, and the issuance of an emergency rule allowing graduates to work in supervised environments until they can take the exam.
But the Board’s attempts to preserve the in-person bar exam are dramatically misaligned with the reality that law grads are living. It is not humane to ask people to invest the time, focus, and money required to prepare for the bar in this time of global trauma and social upheaval. It is not safe, secure, or equitable to require an online-only test. It is not realistic to tell people they can work temporarily under supervision — assuming employers will hire them — but will still have to find the time to study for a future exam.
It is not worth saving the bar exam.
Like other high-stakes standardized tests, the bar exam has its roots in racism and has a discriminatory impact today. Like other tests, it fails to appropriately accommodate takers with disabilities. Like other tests, it does not measure skills or understanding, rewarding law grads instead for having the economic freedom to prepare for it full time, and the ability to memorize information and perform under test conditions. Despite claims that it protects the consumer from unqualified lawyers, the bar exam actually protects attorneys’ bottom lines by limiting the supply of lawyers and inflating the price of both becoming and hiring a lawyer.
In an April 2020 report, the New York Bar Association recommended “consideration of a New York Law Certification program that would permit people to forego the Bar exam entirely,” because it found the New York law portion of the online exam was vulnerable to cheating and failed to measure candidates’ fundamental lawyering skills. Now is the time to give real consideration to this recommendation.
We should be suspicious of the original motivation for the bar exam and outraged at its discriminatory impact. The exam was conceived, like many professional licensing schemes, to keep immigrants and people of color out of the legal profession and to protect established lawyers from economic competition. Nationally, eight percent of white test-takers fail the bar on their first attempt but as many as 40 percent of Black test-takers do.
There are multiple reasons for this including, as one recent paper put it, the fact that “individuals who score higher on the Multistate Bar examination are often examinees who possess comparable opinions as the drafter of the multiple-choice question, which, similar to the LSAT, leaves applicants with minority viewpoints at a disadvantage before the exam even begins.”
Then there are the economic disadvantages, which are heavily tied to race. Sixty-one percent of Black law students graduate with more than $100,000 in student debt, while only 40 percent of white graduates do the same. With the financial pressure of paying off loans, it makes sense that many Black students don’t pay for expensive test prep courses.
In its own review of 2005 exam results, the New York BOLE found that more than 86 percent of white test-takers passed, while only 69 percent and 54 percent of Hispanic and Black test-takers did, respectively. The same study noted “Black/African American candidates tend to graduate from law schools that are more selective than the typical law school” so the disparity cannot be blamed on the quality of legal education or low LSAT scores, as some have claimed.
Those concerned that doing away with the exam will flood New York with unqualified attorneys echo the forefathers of the bar, who spoke of a “horde” of “unworthy” candidates attempting to become lawyers.
Truthfully, there are many ways the state works to protect consumers from unqualified lawyers: requiring graduation from an accredited law school, a character and fitness screening, continuing legal education including in legal ethics, maintaining bar admission, and administering discipline for lawyers who fall short of meeting professional obligations. Indeed, every New York lawyer who has been subject to discipline for misconduct or ethical violations at some point passed the bar exam.
There are widespread calls for the Board to extend diploma privilege to 2020 graduates. For this class that has survived so much, it is the only fair and humane option.
But we must not stop with a temporary solution. The pandemic is forcing us to come to terms with inequities across society, and once we’ve acknowledged those problems, we can’t go back. It’s time to acknowledge that the bar exam is racially and economically unjust, and that it fails to measure an attorney’s real-world abilities. It’s time to develop a better way to ensure quality, diversity, and equity in New York’s legal profession.
Diploma privilege, currently used in Wisconsin, is a meaningful and sensible alternative to a standardized bar exam. It will ease some of the financial and emotional burden on law grads and is a step towards more diversity in the legal profession. It rightfully focuses on a student’s performance during three years of intensive legal study, internships, and clinical practice rather than on three months of memorization.
It is time for New York to adopt diploma privilege.
Johanna Miller is Director of the Education Policy Center at the NYCLU and Co-Professor of the Civil Rights Clinic at NYU School of Law.