A spectre is haunting the American legal profession – the spectre of diploma privilege.
Facing the psychological and physical trauma of COVID-19, and buoyed by growing calls for diversity and equity in the wake of centuries of racial and social injustice blithely and sometimes viciously perpetuated by lawyers in positions of power, a new generation of would-be American attorneys is calling for the bar examination to be eliminated as a barrier to professional entry. Instead, they argue, bar admission should depend on graduation from an accredited law school. Some exponents of diploma privilege are content with presenting it as an administrative convenience that would allow law graduates to work and serve their communities sooner rather than later during the current pandemic and its attendant economic downturn. Others dare to suggest that it is an appropriate long-term strategy for the making of a better bar.
The diploma privilege concept is not new. It dates back to the mid-19th century when access barriers to the bar in the wake of Jacksonian democracy were few. The small number of antebellum law schools struggled against apprenticeship and self-study as plausible modes of preparation for a legal career; in 1859, Theodore Dwight, head of the law program at Hamilton College in New York, then the only formal law school in the state, hit upon the idea of incentivizing would-be students by the offer of automatic bar admission on graduation. He may have recalled a bar exemption for Virginia law school graduates that briefly applied in that state in the 1840s. Wanting to draw more educated men into legal practice, the New York legislature authorized Dwight’s proposal. When Dwight began a law program at Columbia College in New York City in 1860, he brought diploma privilege with him, and used it as a lever to build the biggest and arguably the best law school on the American eastern seaboard, pouring hundreds of formally trained law students directly into New York’s legal profession. Other law schools in New York, Louisiana, Mississippi, Georgia, Tennessee, Michigan, Wisconsin, and more than ten other states successfully followed suit, although attempts by some schools to claim the privilege in Massachusetts and other jurisdictions failed when their legislatures proved less inclined to defer to persuasive law professors.
All this began to change after the Civil War with the appearance of the first modern professional bar association in New York City. Created in 1870, the Association of the Bar of the City of New York wasted little time in turning its attention to bar admission, and by 1875 it was calling for New York’s diploma privilege to be abolished in favor of a written bar exam administered by a permanent board of examiners that it would in practice control. In other words, it wanted entrance to the profession to be effectively controlled by the profession, an arrangement that was particularly appealing to established attorneys caught in the midst of the “Great Depression” of 1873-79. Association members claimed the New York law schools were releasing a “flood of lawyers” into the bar, and that the nine-to-twelve month instructional programs then offered by the schools provided less education to newcomers than was needed to keep out what they called the “unworthy.”
Calls to end diploma privilege only grew over the next few years as the student body profile of some of the leading diploma privilege schools changed and other ambitious law schools that did not enjoy the privilege tried to undercut it for their own purposes. In New York, leading WASP lawyers viewed diploma privilege as increasingly anathema to their interests as the number of Jewish and Eastern European immigrants coming to New York City rose and their progeny began finding their way to Columbia’s classrooms. Meanwhile, in Massachusetts, the Harvard Law School, reinvigorated after 1870 by Dean Christopher Columbus Langdell, also pushed against diploma privilege. Harvard’s law students had never actually enjoyed the privilege in their state, but Harvard’s leadership understood that rejecting it as a matter of professional policy might eliminate an advantage enjoyed by some of their competitors in an increasingly crowded legal education marketplace. In 1881 the recently-created American Bar Association pointedly declined to endorse the professionally-unpopular practice. Caught in the crosshairs, Columbia and other New York law schools finally lost their diploma privilege in 1882 when the New York legislature overhauled the state’s bar admission requirements.
In place of diploma privilege, New York and the other states that were eventually induced to follow its example imposed written bar exams far more onerous than anything that had previously been required for bar entry. The turn to written exams was consistent with their growing use in elite law school pedagogy at Harvard and elsewhere. Almost by definition, they made it more difficult for law students not used to extensive written tests to pass the bar. Law students coming from educationally disadvantaged backgrounds or communities that communicated in less standard English suffered, particularly from this shift.
Written bar examinations were stressed all the more as bar leaders attempted to suppress new forms of legal education that offered quicker and easier entry to a legal career. In the 1890s a growing number of largely rural and small-town law students who had taken courses in a new wave of correspondence law schools began sitting for bar exams in many states. Benefiting from forward-looking instructional methods that would eventually be embraced by commercial bar review companies, these disciples of late 19th century “distance learning” (whose ranks notably included a disproportionate number of women and minorities) initially enjoyed considerable success. In the early 20th century they were joined by a veritable tidal wave of urban law students, many of immigrant stock, who studied law at night when they were not working for a living.
The bar authorities turned to the bar exam to head these incursions off at the pass. By 1920 correspondence law students had largely been banned from even sitting for the exam without more education in a traditional law school. Night school graduates were still allowed to take the bar, but the questions set by the state examiners gradually shifted from being short answer memory testers to case hypotheticals like those debated in the elite day law schools where the bar-oriented night students could not and did not go. This trend accelerated after 1925, when 99 percent of bar candidates from Suffolk Law School, Boston’s leading evening law program, passed the Massachusetts bar, as opposed to just 62 percent of the case method-educated Harvard men. Harvard successfully pressured the Massachusetts legislature for a retest, claiming fraud. Ninety-nine percent of the Suffolk candidates passed again.
The reworking and mainstreaming of case-based written bar examinations in the 1920s coincided with efforts by nativist bar association leaders to limit bar access by immigrants and minorities at other points. The American Bar Association Root Report of 1921 strenuously insisted that law schools only admit students who had completed two years of college. Fearing that even admission to law school by college grades would result in an “inferior student body ethically and socially”, as the Yale Law dean of the time delicately put it, Yale and Columbia law schools experimented with proto-LSAT “aptitude tests” for prospective students that grew directly out of the eugenics movement and the overtly discriminatory Army Intelligence Test developed for the US Army in World War I.
Support for more rigorous written bar exams only increased during the 1930s as many American lawyers struggled for economic survival in the midst of another “Great Depression.” Bar exam pass rates in most states suddenly dropped without any indication that contemporary bar applicants were any less talented. Leaders in the growing professional push to place permanent boards of bar examiners in every state bemoaned “overcrowding” at the bar and grandly promised to turn back what one prominent organizer called “the horde of unqualified applicants.” In 1931, their campaign led to the creation of the National Conference of Bar Examiners, which immediately assumed a leading role in coordinating state bar exam exercises. Decades later, the NCBE would enthusiastically spawn the MPRE, the MBE, and other multi-jurisdictional tests that literally piled bar exam upon bar exam for the unfortunate law students subjected to them.
Bar exam culture helped make professional bar associations more powerful than ever, especially as they directly or indirectly controlled most of the state bar examination boards. Preparation for the bar exam was an early exercise in instilling professional discipline, as the bar and their boards of bar examiners bent bar candidates to their will at a critical formative moment by controlling their behavior after law school graduation and forcing them to acknowledge the primacy of only part of the law – the part necessary to pass the test. Interestingly, a grasp of “public law” as opposed to “private law” subjects was rarely emphasized in the bar’s self-selected professional curriculum. And if testing were not enough, bar examiners in the early decades of the 20th century doubled down on their control of entry by imposing variably stringent “character and fitness” requirements on admission candidates. Supposedly a moral standard applied for the protection of the public, “character and fitness” turned out in multiple historical cases to be a conveniently opaque way of excluding law students who had passed their bar exams but who had unpopular political opinions or came from social and/or ethnic backgrounds that the bar leadership deemed dubious. The relatively more forgiving diploma privilege survived in a few jurisdictions, but that was mostly in states with one law school (like Wisconsin, for example) over which the profession already had overweening control.
In the 21st century, the bar exam has become even more burdensome and more exclusionary. Bar fees and the costs of commercial bar prep courses are much more expensive now than they were in previous decades, indirectly and directly sustaining an entire “assessment-industrial complex” of bar review companies. In the meantime, the bar exam has explicitly extended its disciplinary reach into law schools themselves. After 2008 more and more schools found themselves under pressure from cost-conscious big law firms to deliver “practice-ready” lawyers to the marketplace. By definition, lawyers could not be practice-ready if they could not pass the bar. Bar passage rates became key criteria of concern in the US News law school rankings, and increasingly became evaluative lodestars for deans and faculties. The American Bar Association itself began to make noises about withdrawing or withholding accreditation from law schools that did not achieve a certain bar passage rate. In this environment, more and more law schools corrupted their academic missions by explicitly teaching to the test. Many hired “academic support” staff whose sole function was to train students to pass the bar exam while they were still in law school and then help steer them through it after graduation. Law students have meanwhile felt the bar breathing down their necks in other ways. Even before the recent George Floyd protests, more than a few students self-censored their public political activity for fear of it coming back to haunt them in an eventual “character and fitness” review. Others who stuck their necks out have found their bar applications strangely delayed, even if they were ultimately approved. The result of all this has been a forced retreat from civic engagement, the very opposite of the behavior one would hope American bar associations would support.
As in so many other respects, COVID-19 has not created a bar exam problem; it has simply laid bare one that has long existed. Written (and now largely-multiple choice) bar exams taken over a couple of days in the wake of an already rigorous and grueling course of substantive legal education are arbitrary, burdensome, and of extremely dubious value as indicators of a candidate’s prospective capacity as a lawyer, let alone their “knowledge” of the “law.” Their disparate impact on Black and other minority law school graduates has been known for years; an LSAC study some two decades ago found that while only eight percent of white law graduates failed the bar exam the first time, forty percent of Black candidates failed. More recent but less extensive studies suggest that a severe racial imbalance in bar passage persists. Those who still insist that the exams keep “unworthy” candidates from the bar (on the basis of very little hard evidence, mind you) might do well to consider how many “worthy” candidates they have directly and indirectly kept out over many years, and what the long-term consequences of such exclusion have been for the achievement of social and racial justice in this country. It’s also worth noting that in a world turned upside-down by a pandemic, bar exams are gratuitously nerve-wracking and even downright dangerous to test-takers if physically administered en masse by technophobic bar exam administrators, and many of their worst psychological and even physical side-effects stand to be suffered by law graduates who are themselves socially and/or financially marginalized.
In this context, diploma privilege presents an obvious alternative. In the short term, it offers a reliable way to pass recent law graduates into the bar with minimal risk and minimal delay. In the long term, it challenges the assumption that bar admission should naturally be governed by examining boards and professional associations that over the past 150 years have manipulated the process to make it tortuous, discriminatory, and ridiculously expensive. Perhaps law schools, law professors, and law students working together for a common professional purpose would be more responsible, more deliberate, and would do a better job of parsing future lawyers serving the public and even the private good than cabals of narrowly self-interested attorneys. Would they immediately flood the legal marketplace with the supposed “unworthy”? There’s no evidence that professionally accredited law schools would do that, any more than they flood their own classrooms with substandard students. Insofar as most US law schools are accredited by the ABA, the profession could in practice stop them from flooding the market if they tried. Of course, law schools are far from perfect, but there are at least some statistical indications that they’re much better than the traditionally inbred bar at broadening themselves to include members of diverse racial, gender, and socioeconomic groups. If law school graduates could go freely into practice without having to overcome the additional obstacle of the bar exam, maybe American lawyers would look and be more like the rest of America.
But we’re not there yet.
If substantive change in bar admission procedure is going to come, it will not come from above. It will not come from bar associations or boards of bar examiners fully invested in a longstanding professional gatekeeping system specifically designed to protect, empower, and enrich established lawyers in good times and bad. Neither will it come from law schools hell-bent on gaining rankings distinction by pumping up their bar passage percentages, although change could ultimately be to their advantage. Instead, if change comes, it will come from below.
That it has not yet come reflects a reality that the bar exam has only contributed to – the endemic competitive ethos within law schools that for well over a century has set law student against law student for grades, class ranking, law review positions and ultimately bar passage, an ethos which has hitherto helped to render law students atomized and voiceless. There are signs that this is now starting to change. COVID-19 and lockdowns have suddenly catapulted all of us into a hyperconnected virtual world where traditionally impossible face-to-face meetings at distance are but a Zoom call away. Hungry for community and physically shut out of their own schools, law students are reaching out to each other and looking for common causes. Law student-driven “pop-up” coalitions like United For Diploma Privilege (DP4A) are natural creatures of the hyperconnected post-COVID Net, as are collaborative media operations like JURIST that join law students from different law schools together for the greater good.
So there should be change. Maybe there can be change. Maybe – as demonstrated in so many contexts in the past few months of this pandemic – change can and will come sooner than we think. Professional certification of lawyers in the public interest need not be abandoned. But the bar exam is not a historical inevitability. Diploma privilege offers an alternative path to a freer, fairer, and more inclusive professional future.
Law students across America, unite!
For more information on this topic, please join a webinar hosted by JURIST and United for Diploma Privilege on July 9th at 7 pm EST entitled: “Diploma Privilege and the Future of the Bar Exam.”
The JURIST Editorial Board is the senior staff and leadership of JURIST and is made up of a team of dedicated law professors, law students, and practicing lawyers.
Suggested citation: JURIST Editorial Board, The Diploma Privilege Manifesto, JURIST – Academic Commentary, July 9, 2020, https://www.jurist.org/commentary/2020/07/jurist-eboard-diploma-privilege-manifesto/.
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
