Should diploma privilege replace the bar exam?

Louisiana—at the time of writing this—became the fifth state to grant “diploma privilege,”a method of being admitted to a state bar without taking and passing a state bar exam. Louisiana cancelled its most recently scheduled in-person bar exam for July. Many states, likewise, have cancelled their in-person exams—some through early fall—putting thousands of job seekers’ careers into doubt. 

In doing so, Louisiana side-stepped the ongoing debate of online vs. in-person bar exams. Illinois, for example, announced that the Illinois State Bar exam will be held online this year. Especially as COVID-19 continues to ravage parts of the country, specifically in the South, the move by the Supreme Court of Louisiana is widely seen as trying to get the court systems, private practices, and law schools to move back to a workable “normal.” 

The state’s diploma privilege is not automatic, however. In its declaration, the Court included stipulations such as the fact that the person seeking privilege must have already registered for an in-person bar exam in July or October 2020, that the person has graduated from an accredited law school in December 2019 or later, and that the person has not sat for a bar exam in another state and/or is not planning on taking another bar exam in the remaining months of 2020. 

The website and organization United for Diploma Privilege, which began in March 2020 and is comprised of law students, professors, and practicing attorneys across 33 states, posted the news this week. They likewise keep an up-to-date interactive map of states where diploma privilege is already being accepted for aspiring lawyers, and where actions are still being taken to advance this outcome. 

The group’s founders are capitalizing on this movement to address greater concerns about bar exams in general. Smokeball has previously written about the calls for bar exams to be reconsidered, if not abolished, due to the economic constraints tied up in their success rates. 

In a piece in the Washington Post on July 13, “Why this pandemic is a good time to stop forcing prospective lawyers to take bar exams,” the founders of United for Diploma Privilege stated, “The exam is equal parts a standardized test and hazing ritual. We are told the exam exists to weed out potential lawyers who are unfit for practice. Despite little to no empirical evidence that the exam accomplishes this goal, we are told that the exam protects the public. But this summer, in the midst of a global pandemic, that claim feels more dubious than ever.” 

Their argument exists in the context of avoiding unnecessary health risks associated with in-person exam taking. However, they cite the inadequacies and uncertainty of online testing, and highlight the historical inaccuracy of the exam’s ability to measure competency. The authors cite widely-circulated arguments that bar exams act as gatekeepers that (inadvertently or not) target potential lawyers who are black, indigenous, and people of color (BIPOC) and/or of lower economic backgrounds. 

While the fight to replace bar exams with diploma privilege continues, COVID-19 continues to disrupt the law industry in general, not just shutting down courts, but also forcing lawyers to operate in virtual offices by using legal software, law apps, and online billing software to conduct their business. Law firms are now using legal case management software and law firm websites to communicate with clients and track billable hours in ways that were seen as radical just a few months ago. 

Depending on the outcome of the diploma privilege movement, the industry may see even more changes in the coming months and years as law schools, state bars, and private practices adjust to the paradigm shifts of 2020.