The Legal Beat

More High-Profile Support For Diploma Privilege
Posted on Thursday July 30, 2020

With bar exams learning that at least one examinee has since tested positive for COVID, the fig leaf protections examiners implemented from spot temperature checks to signed statements have been exposed. People can have this virus without realizing it for days and that’s exactly how it ported itself into the test site.

With these dangerous exercises behind us and more looming in a few months, the push to inject common sense into the process has intensified on all fronts.

The Pennsylvania Bar Association’s Board of Governors adopted the recommendations of a task force report urging the state supreme court to adopt diploma privilege for people who graduated between April 1 and June 30, 2020. At a time when even concerned authorities are more comfortable with half-measures like online exams, Pennsylvania’s professional leaders see that as just another disaster waiting to happen.

Moreover even those with ideal home conditions will be at the whim of a storm, accident, or equipment failure that causes a loss of power during the exam. Neither public health officials nor the medical community at large can give reliable prediction of where Pennsylvania or the country will be in October 2020 as it relates to the pandemic. A diploma privilege would provide some certainty to the recent law school graduates who are trying to enter the at the most uncertain time in the history of the bar exam. While a diploma privilege does sacrifice the testing of graduates, the majority of people who take the Pennsylvania Bar Exam for the first time in July pass the test (The first-time pass rate for the July exam each of the past three years was 80%). Many of those who do not pass the bar exam the first time do successfully pass the bar exam during a subsequent test — often on the second try.

Check out the full task force report here.

Meanwhile, across the river in New Jersey, the Rutgers and Seton Hall Law School faculty have issued a strong statement advocating for diploma privilege.

In normal times, the bar examination is a stressful professional event, perhaps the most stressful professional event that a law graduate faces prior to embarking upon the practice of law. This year that anxiety has been increased exponentially. The cost this year to the newest members of our field outweighs the benefit the bar examination normally provides in proving a candidate’s mettle to practice law. The time has come for New Jersey to join other states in turning to more a humane response to what this year has become a protracted, costly, and painful professional examination process— one that is disproportionately affecting women candidates and candidates of color.

The Rutgers statement echoes the technical concerns about online exams and cites the school’s own experience with Spring exams:

The online bar exam also assumes that all applicants have access to computers with webcams and certain amounts of memory. Not all applicants have computers that meet these requirements. Many of the law school faculty can personally attest to this fact—several of us needed to purchase equipment to hold online classes this spring. Any law graduate who now must purchase additional computer hardware just to take the bar exam will be spending money during precisely the time they are suffering financial burdens of unemployment.

Which assumes an online exam can even get that far without crashing, something we have no reason to trust as yet.

Check out the full Rutgers statement here.

Finally, the ABA is entering the space. It’s not a call for diploma privilege, but does represent a big shift from the organization’s early agnosticism on the subject. The proposal would urge every state to suspend in-person bar exams for the duration of the epidemic and commit to actually testing any online exam process well in advance of the test day so applicants aren’t finding out that the test is canceled the week before it’s scheduled.

Unfortunately, the proposal leaves open the possibility of in-person exams in the event that “public health authorities determine that the examination can be administered in a manner that ensures the health and safety of bar applicants, proctors, other staff, and local communities.” The proponents presume that this is a bar that states are unlikely to clear, but if we’ve learned anything from this week, it’s that bar examiners can convince health officials to give them arbitrary waivers assuming the state bothers involving them at all in the process until the last second. And the states using online exams always believe the platform is ready to go right up until it isn’t. These caveats may be inserted in the interest of fairness, but each may turn into more of a loophole than the drafters’ expect.

Still, the ABA is a cautious bunch so the symbolic act of even criticizing states for pursuing this insanity should be lauded. It may not be diploma privilege but it sets the stage for advocates to push… assuming state supreme courts take this language seriously.

Though that’s another thing we have little reason to trust.

You can check out the full resolution here.

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.

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