COVID-19 has forced jurisdictions across the country to make decisions regarding the administration of this year’s Bar Exam. These decisions have altered the date, location, format, and portability of results; and have done so in ways that are anything but equitable. What has resulted is an atmosphere of stressful uncertainty and confusion that has laid bare the inherent socioeconomic and racial inequities of this antiquated rite of passage into the legal profession. To steal an oft tested phrase on the MBE, in the interest of “fair play and substantial justice,” bar examiners across the country must accept that the protection of this ritual through the administration of either in-person or remote exams during the COVID-19 crisis is unfair and unjust. Diploma privilege is the equitable solution this moment demands.
The formula for bar preparation is quite simple. Graduate from law school, pay $2,000–$5,000 for commercial bar preparation programs and study materials, quit or delay the start of a job to study for 8–10 weeks, spend 6–10 hours per day studying, pay the necessary fees which range from $500–$1,800, and sit for the bar exam. This formula was already fraught with socioeconomic and racial disparities prior to COVID-19. However, when the effects of a global pandemic are injected into the administration of the bar exam, the inequities become alarming.
Traditional graduates often leave law school with substantial debt and are given limited time after graduation before payments commence. The lucky graduates were able to complete the prerequisite unpaid internships, work as a paid summer associate, and land a firm job that will cover bar preparation expenses. But what about graduates with limited resources, no familial financial support, and no firm job to bridge the gap? What about the graduates who worked full-time during law school and were unable to accept unpaid internships? What about non-traditional students with dependent children? Enter COVID-19 and we now have a class in crisis. The country is in the midst of record unemployment. Graduates relying on jobs in the service industry for basic income are out of work. Law firms are bracing for a recession and have all but halted entry-level hiring. As jurisdictions continue to push the standard administration of the July exam deeper into the calendar year through October, graduates are forced to go without a source of income longer; amassing more debt, and possibly losing entry-level positions to February 2020 examinees, who are now licensed attorneys. This socioeconomic crisis also makes the very process of getting a seat at the bar exam fundamentally unfair. As accessibility to exam dates has fluctuated throughout the summer, graduates with economic means have paid multiple jurisdictions in hopes of getting a seat where a portable score is offered. Graduates have positioned themselves to take the bar exam in preferred jurisdictions only accessible via travel and hotel stays that many cannot afford.
Once a seat is secured, how does a graduate prepare during a pandemic? Public libraries, coffee shops, and law schools have been closed since March, forcing bar examinees across the country to study at home. For the select few, home during the crisis is back with their parents, with access to conducive study space; but for the vast majority of examinees, cramped apartment living is the norm. In a typical summer, a conducive study environment could easily be achieved by providing recent graduates with access to study rooms in public libraries, space on law school or college campuses, or an office setting on breaks or after hours. However, these potential equalizers are all closed. As I write this article, home for me is in a neighborhood in Washington, D.C. where the unemployment rate is four times the national average. Schools and summer camps are closed due to the ongoing pandemic. In short, everyone is at home. This creates an environment where noise is a constant distraction. This is even more of a barrier to success for those with children at home who have to balance being caregivers and studying at the same time, including many who had to finish law school while home-schooling their children. Finally, extreme mental stressors are rampant. Black students have long faced obstacles to bar admission. Currently, only 5% of U.S. lawyers are Black. The civil and racial unrest resulting in protests across the country have evoked undeniable feelings of fear and despair. In addition, COVID-19 has disproportionate serious or fatal effects on Black people, further contributing to Black graduate angst. Overall, cases in the US have exceeded 2.6 million and the number of deaths has reached 122,000. Students are rightfully scared. Examinees have faced this illness themselves, or in their families and friends. Many know someone who has died from COVID-19. How can graduates possibly be expected to prepare for an exam of this magnitude at a time like this? But in some jurisdictions, graduates have been told the show must go on.
Jurisdictions conducting in-person exams are requiring temperature checks and masks for examinees. In Kentucky, examinees have been warned that if they fail the temperature check they will have to wait for the next administration of the exam. I can think of no better incentive for a desperate examinee to conceal symptoms, potentially exposing others to the virus. Examinees will use shared public restrooms and common areas on breaks that create additional exposure to touchpoints. In Philadelphia, lunch breaks will be in bustling public areas near the Convention Center, after which examinees will return for the afternoon session. Some courts have already made the decision to shut down and move in-person hearings to 2021 because there is no vaccine or effective treatment for COVID-19; yet these same courts believe it is acceptable to administer an in-person bar exam.
In Washington, DC, Maryland, Indiana, and Louisiana, the bar exam will be administered remotely. This option was offered by the National Council of Bar Examiners (“NCBE”) for jurisdictions that believe in-person examination would be impossible. The notion that such an administration could possibly be fair and equitable is preposterous. It assumes, as many policies of the NCBE have always assumed, that the majority of bar examinees are 25-year-olds with no children, with access to sufficient in-home testing environments, and with financial resources necessary to “make it work.” Sadly, this creates another barrier to admission to the profession for those that do not fit this profile. In addition to inadequate testing environments, examinees also face inequitable access to reliable internet—a necessity for exam administration. For example, the internet service provider in my area often conducts unscheduled maintenance without warning. There is no guarantee an interruption will not occur during the exam. It is also unfair to assume all students have internet access beyond their cell phones or have the required robust speeds. This is why law schools still have computer labs, even in 2020. But these labs, like the campuses, are still closed as the health crisis continues.
Safe, equitable administration of the bar exam via in-person testing is not possible. The US reached its highest number of new cases to date on June 24th. Unfortunately, the number of new cases is still rising. There is no way to limit touchpoint exposure throughout the examination day. There is no way to know if an examinee is already infected by mere temperature checks. There is no equity in an in-person administration during a pandemic that adversely affects some examinees based on race, age, and pre-existing conditions. There is no safe option for the immunocompromised. Masks are not enough and are an added stressor. Bar examinees should not have to face fear for their health and survival, and that of their loved ones to take the bar exam. The continued closure of the courts, the implementation of online trials, and convening of professional conferences via virtual platforms through year-end demonstrate the courts are well aware of the dangers of public settings. Moving forward with in-person bar examinations with knowledge of that danger is unconscionable.
Equitable administration of the bar exam via remote testing is not possible. There is no equity of the testing environment if each examinee is taking the bar exam in their own home. There is no equity if some examinees are forced to incur the expense of a hotel room or business incubator space to take the bar exam due to an unsuitable home environment. No equity can be guaranteed as it relates to the reliability of in-home internet, the possibility of power outages due to inclement weather, and other external factors outside of the examinee’s control.
It could not be clearer that the administration of the bar exam during a global pandemic with a simultaneous period of civil unrest is irresponsible. Moreover, the NCBE’s rationale that administering the bar exam is essential for the protection of the public is hypocritical. Specifically, the current president of the NCBE was admitted via diploma privilege, but now actively advocates against it.
This moment is unprecedented. Lawyers are trained to use skill, logic, justice, and fairness to meet the moment. Diploma privilege is what this moment demands.
Vania M. Smith, M.P.A., J.D., is a 2020 graduate of the Catholic University of America, Columbus School of Law, where she was the 2019 National Trial Competition (NTC) Champion. Her scholarly interests are Professional Responsibility and Legal Ethics.
Suggested citation: Vania M. Smith, Diploma Privilege: What This Moment Demands, JURIST – Student Commentary, June 26, 2020, https://www.jurist.org/commentary/2020/06/vania-smith-diploma-privilege-racial-economic-inequities/.
This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at commentary@jurist.org
