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Let’s get something clear off the top. Here is the rank order of licensure options for 2020 ranked from best to worst:
1. Diploma Privilege (Utah, Washington)
2. Online July Exams (Indiana, Michigan)
3. Online Fall Exams (DC)
4. Delayed/Staggered In-Person Exams (New York, Massachusetts)
5. July In-Person Exams (a frighteningly non-zero list)
6. Injecting Yourself With Coronavirus To Own The Libs (Mississippi)
When we praise jurisdictions for staggering exams or going online, it’s worth remembering that these aren’t ideal solutions. We don’t really want a bunch of law grads sitting around until February to take the bar exam. But when the world is setting the bar at “sign this waiver in case you die taking our test,” a lot of stuff looks good by comparison.
It may be folly to complain that the pandemic is causing law grads pain and inconvenience — it’s, you know, a global pandemic so there are bigger issues at play than delaying your start date — but that doesn’t excuse heaping that pain disproportionately upon the least advantaged applicants. In a letter pushing the DC Bar to offer a faster path to licensing, Marvin McPherson makes this point:
The bar examiners delayed testing dates months after the posted testing date which increased financial costs to minorities and those who are socioeconomically disadvantaged disproportionately. Each month’s delay added to the probability that a socioeconomically disadvantaged graduate will not be able to study for the exam full-time and decreased their probability of successfully passing the bar exam.
While lenders could and absolutely should delay kicking off repayment schedules until at least next February to avoid dropping a hammer on grads who aren’t going to be able to start working in the autumn, that’s only part of the problem. Many grads are paying their rents on credit while studying and delayed exams are putting them in the position of going deeper into debt or starting work and trying to study on the side. And even though this would impact all applicants, incoming Biglaw associates are going to ultimately get stipends, economically advantaged folks can lean on savings and relatives, but it’s the folks without those perks who are going to end up suffering.
Now in Massachusetts, a state that flirted with an online exam already, a recent statement about the importance of addressing racial injustice in the wake of the George Floyd killing has become the jumping off point for a renewed call for action from recent graduates:
Your April 22nd letter setting out the Commonwealth’s 2020 bar exam plan acknowledges “reasonable concerns about the disparate impact of the bar on law graduates of color.” We implore you to consider that your solution to these “reasonable concerns” (a committee that will study possible alternatives to the bar examination “as soon as the emergency abates”) does not help the Black, Latinx, and Indigenous graduates most likely to be affected by the COVID-19 pandemic—an ongoing crisis unlikely to subside prior to the Massachusetts bar exam. We refer once more to your June 3rd statement: “This must be a time not just of reflection but of action.”
With that in mind, the letter asks the state to reconsider its earlier dismissal of a diploma privilege option. Specifically, the letter cites the Washington model where those seeking only local admission could move forward on their applications based on their law school diplomas while those who need the portability afforded by the UBE could still take the exam — which would be less crowded with a number of people opting for the diploma route.
This is becoming a question of common sense. There’s not a lot of good evidence that the bar exam protects the public. Honestly, the bar prep courses, covering a range of subjects that never showed up on the exam, are far more useful than the exam itself. If the bar prep industry transitioned to a state-sanctioned mandatory post-grad training module it would offer more value than insisting on the test.
I guess the best way to put this for bar examiners is: why aspire to having the fourth best solution?
Washington Grants Diploma Privilege To Graduates Of ABA Accredited Schools
With NCBE Quibbling Over Online Bar Exams, Massachusetts Says They’ll Just Write Their Own
Bar Exam Applicants Forced To Sign COVID Waiver In Case In-Person Exam Ends Up Killing Them
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.