The Volokh Conspiracy
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The Elephant in the Room for the Diploma Privilege Debate
Nationwide, 80% of first-time test takers pass the bar exam, and 90% will pass within two years. But 10% of takers will not have passed after two years, and some will never pass.
State Supreme Courts continue to divide about how to handle the bar exam. Some states still plan to hold in-person exams. Other states plan to hold a remote, online exam. And some states plan to give an emergency "diploma privilege." Applicants who had already registered for the July 2020 bar exam would be admitted to the bar, with certain conditions; for example, they may have to take additional CLE classes, or serve in some sort of "apprenticeship" function. But they will not have to take an exam.
With the diploma privilege, 100% of registered test takers will be admitted. In 2019, nearly 80% of those sitting for their first bar exam passed. Simple arithmetic tells us that nationwide, 20% of first-time test takers failed. In a state with an 80% pass rate, on average, about 20% of first-time takers will have failed the bar exam. With a diploma privilege, those 20% who would have failed will now be admitted.
We also know that nearly 90% of law graduates pass a bar exam within two years. Let's assume a state with a 90% two-year pass rate adopts a diploma privilege. Approximately 10% of test-takers who would have not passed within two years, could now be admitted without an exam. To be sure, some applicants may quit after their first failure. Others take the exam multiple times, and keep failing. For example, one person failed the Illinois bar 8 times. With the diploma privilege, these graduates who would have failed multiple times will now be admitted to the bar, without examination.
The applicants who fail the bar once, or multiple times, are the elephant in the room. Let's assume that the bar exam is a meaningful indicator of competency to practice. If that fact is true, the diploma privilege should not be awarded to the 10% of applicants who will not be able to pass the exam. But how can we know in advance who will fall into that category?
The Louisiana Supreme Court indirectly addressed this problem. (See my post from yesterday). First-time test takers are given the diploma privilege; people who previously took a bar exam have to take an online exam. The former are deemed "qualified" and the latter are deemed "non-qualified." Now, the Louisiana Supreme Court did not indicate that those who have failed a bar exam are deemed non-qualified. That approach would have been too blatant. Instead, the Court said a person was non-qualified if he or she "previously sat for any bar examination in any state or territory."
That category would sweep in those who previously failed the bar exam. Unfortunately, Louisiana's non-qualified category is also over-inclusive. A person who passed the bar in one state, and wanted to take the Louisiana bar for a second admission, would be blocked. Though a person with one law license already has some means of employment, so the situation is not as dire.
The Louisiana Supreme Court, in so many words, was singling out applicants who failed, and excluded them from a diploma privilege. The Court effectively put second-time takers on academic probation–the same way law schools force students with low GPAs to take required courses.
Justice Genovese noted this disparity in his dissent:
The emergency, if any, is not allowing over 500 applicants into the practice of law without testing and a proof of competency. It should also be noted that the statistics show that approximately 25% of bar exam applicants fail the bar exam. That system of checks and balances will not be had. All bar applicants are let in, and over 100 bar applicants will be given a license to practice law when they should not have been. What other professions are allowing a professional license without testing?
As did Justice Crain:
The inequities and inconsistencies spawned by this decision are too many to number. Why is taking the bar examination not safe for those "qualified candidates," but safe enough for those who are not "qualified candidates"? The latter will be tested in August and October. Are they not affected by the pandemic? Why should a person who took the bar previously, but failed due to unfortunate events that undermined their preparation, now be denied a "diploma privilege" when we know at least twenty percent of these 2020 applicants would have also failed? As applied, the order rendered by the majority is unfair and results in disparate and random treatment– the type of injustice the judicial system should seek to prevent and remedy. Equity does not demand that a select few applicants be admitted, but that all be tested.
Debates about the diploma privilege should be more candid about this elephant in the room. For most applicants who pass the bar, the privilege merely saves them the trouble of sitting for the exam. They'll pass. But for some applicants who will not pass the bar on several tries, the privilege lets them bypass a hurdle they could not otherwise clear. Perhaps states should be more candid and simply deny the privilege to people who have already failed the bar. They are the people most likely to fail again. Yet, that approach would place an even greater burden on those who face great difficulties. This entire experience may demonstrate that the bar exam, as it is present constituted, should be jettisoned altogether. The Boards of Law Examiners will have to realize that their future may not involve exams.