When a group of bar exam applicants petitioned Minnesota for a diploma privilege option and the state supreme court agreed to take it up, it sparked measured optimism from law school graduates that the leadership of the state was taking COVID-19 seriously. There is, of course, no credible way to call an in-person bar exam anything but a superspreader event and any honest evaluation of the bar exam concludes that it provides negligible protection to the public. With Minnesota agreeing to go on the record, it seemed a slam dunk that the court wouldn’t use this opportunity to light its credibility on fire.
And yet, it used this opportunity to nuke its credibility from orbit. It was, in the end, the only way to be sure.
Ignoring public health recommendations in lieu of trusting career bureaucrats who swear they bought new HEPA filters from Target — so, you know, everything’s cool — the Minnesota Supreme Court issued an order declaring business as usual for the bar exam. With the state ignoring health officials begging Minnesota to close real bars, it was only fitting that this bar remain needlessly open as well.
BLE will provide two exam dates, additional space per examinee, increased air flow, and other measures, as recommended by public health officials.
By “recommended by public health officials,” the court means “working backward” recommendations from state functionaries in June — when new infections in the state averaged in the 300-400 range. With the three-day rolling average for infections topping 700 this week, maybe that advice could use some reassessing. No? Fine.
And despite Minnesota being the place that provided the trauma animating America’s reckoning with race, the court can’t be brought to give more than a passing mention to the fact — and abjectly refuses to engage with the idea that Black people in Minnesota may have feelings about this and that forging ahead without them only compounds racial fissures in the public’s confidence in the profession.
The opinion notes that applicants are free to put off their careers until February if they’d like — a magnanimous gesture that surely imposes no hardships on anyone — and specifically bemoans that diploma privilege wouldn’t provide a transferrable UBE score.
Throughout this process, this has become the most infuriating canard peddled by the bar exam’s death cult. As Washington showed us, granting diploma privilege to all ABA-accredited graduates does not trade off with a portable score; in fact, it makes the administration of the UBE safer by clearing the venue of anyone who doesn’t need a portable score. And that’s before we consider that states could go back to the era when they just asked neighboring states for reciprocity procedures.
That’s the stance Justice Paul Thissen took, dissenting from the opinion and proposing diploma privilege with UBE administrations for anyone who really wanted one. That this common sense approach did not carry the day is mind-boggling.
Certainly, the public health emergency that has unfolded in Minnesota and elsewhere over the last 6 months presents unanticipated and unprecedented challenges. Minnesota’s 2020 examinees have also been witness to, and in some cases a part of, the national reckoning with racial injustice. Our decision today to proceed with the written bar examination is not intended to either reject or minimize the significance of the challenges faced by some bar examinees in recent weeks and months; rather, it is to acknowledge that proceeding forward with the 2020 bar examination is the best solution in an imperfect setting.
Why? The opinion refuses to engage any of the scholarly literature on the subject. Almost the entirety of the opinion is defensive — explaining why the court doesn’t think this will kill anyone — as opposed to articulating any justification at all for the bar exam other than portability. Zero argument. I’ve seen one-sentence per curiam opinions that make more of an effort to engage the arguments.
Ultimately, we conclude that none of the alternatives to a written bar examination provides a perfect solution for all 2020 bar examinees and a diploma privilege could, instead and unintentionally, exacerbate some challenges. Further, we conclude that now more than ever public confidence and trust in the competency of Minnesota’s lawyers must be honored, and thus we decline to discard a longstanding requirement for admission to the Minnesota bar, even temporarily.
There’s not even an effort to trash diploma privilege or online exams! At least the NCBE was willing to make a bunch of specious racist and sexist claims to make its point. The opinion never poses any criticism of any alternative en route to declaring that none of them are perfect compared to turning the exam into a disease vector.
I say this without hyperbole: if this opinion were turned in as a legal writing assignment, it would receive a failing grade. No citations to anything but boilerplate, no engagement of the arguments below, no effort to make affirmative as opposed to defensive arguments… this is simply bad legal writing.
But, you know, someone from UM practicing is a much greater danger to public confidence than a slapdash opinion from the high court.
Earlier: Law School Grads Petition For Diploma Privilege, State Supreme Court Agrees To Take It Up
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.