The diploma privilege movement is beginning to pick up steam around the country as the risks become clear and the harm to graduates comes home to roost. The movement has eloquent and intelligent defenses popping up all across the country. I won’t pretend that I can offer a better defense than some of the tightly reasoned, empathetic, and sometimes truly heart wrenching appeals that have splashed across sites and social media feeds in recent weeks. But there is one thing missing from many of these conversations: what about reciprocity?
My colleagues and I have the auspicious luck to graduate into a pandemic that has made licensing for the bar exam truly dangerous and irresponsible. Some states are taking steps to administer the bar exam online, a laudable intent, to prevent the unnecessary risk of cramming 2000 people in a room for two days. Still, others have proposed or approved measures for emergency diploma privilege, which grants admission to the bar for graduates who applied to take the test in a given state. This is better, it’s a forward-looking and reasonable response to the unprecedented risk of this pandemic. But it’s not enough. However, there are many worthy situations still not covered by this goal. For a truly equitable, and effective response, we need to consider diploma privilege reciprocity or national diploma privilege.
As an illustration, many of my colleagues watched in horror as their chosen bar jurisdiction postponed, canceled, moved online, or otherwise irreparably modified the July administration of their bar exam. Many signed up for other states’ bar exams instead, hoping to transfer a UBE score when the test was administered as planned in that state. Then the state they signed up for made the score non-transferrable, or delayed the exam, or canceled the fall administration. Even moving the exam online makes the score no longer transferrable to other jurisdictions. So, graduates around the country are left out of an exam or signed up for exams in other states hoping for transferrable scores from states with no promise that the exams will even be administered. This is especially impactful for my colleagues with disabilities whose choice of bar exam venue needs longer lead times to get accommodations. Signing up for a bar exam with accommodations is an even more lengthy and involved process. I know of hundreds of graduates who signed up in different jurisdictions for stability and reliable process with the plan of transferring their scores.
Still, others are in a position like mine. I went to law school in New York but I grew up in Illinois. I intended to take the New York UBE and transfer my score to Illinois to do work in my home state shortly after graduation. The pandemic made the moral urgency of that plan even clearer. Since it began, I turned down a job at a white-shoe law firm in New York, and I’m going to work instead in public service in Illinois. I feel compelled to use whatever skills and energy I have to help the people of my home state. But the New York Board of Law Examiners has delayed the administration of the July exam to September. And it reserves the right to change or cancel that test date with no notice or public comment. As it stands, the delay has put at least a 2 month wait on my ability to work on behalf of my home state. Without a transferrable score, I’m unable to practice in public service in my home state until at minimum, the results of the February exam come out in April of 2021.
This has been terribly difficult for me, my fiancée, and my family to plan for financially. I have been working full time during the day to support myself without money from a large law firm and study at night. But that is not sustainable At a certain point, it becomes a game of who is rich enough to wait it out, to not get work, and to hold free months to study for an exam that may not come. Moreover, taking the exam itself puts me at risk, it puts my fiancée at risk, and it puts my parents and grandparents at risk. The same story is true for every bar examinee in every state. The 2000 test takers in the room are risking the lives of tens of thousands more in their lives. It is a bitter and crushing choice.
A few states have introduced or passed legislation to grant diploma privilege to the class of 2020, which requires all of the character and fitness, all of the educational requirements, all of the additional licensing requirements of joining the bar but waives the bar exam score for the class of 2020 given the extreme risk and unpredictability of this year’s exam. The New York Senate just proposed such a law. But even states with active efforts are have not dealt with the issue of transferability for those, like me, who planned all along to transfer their score into another jurisdiction.
The diploma privilege movement should advocate for laws and policies across the country to protect the graduating class from the risks of COVID, the disproportionate financial hardship of extended exams, and the career damage that delayed and canceled exams are doing to the 2020 graduating legal class. More specifically, it should push for diploma privilege to graduates of the class of 2020 from any other state with diploma privilege. States should encourage reciprocity and generalized diploma privilege for graduates and bar takers even from other states. This may be in the form of reciprocal diploma privilege with other states that pass diploma privilege, or as a universal grant of diploma for the national class of 2020.
What does this look like?
Under a reciprocity regime, a graduate of a state with diploma privilege would be eligible to apply to the bar other states that have adopted diploma privilege. They would still be required to submit to character and fitness, any state law exams, the MPRE, and any other requirements. They would also be required to pay bar fees and application fees, and comply with all relevant regulations to practice there. They simply would not have to take the bar exam in that other state, because both states implemented diploma privilege. Simple enough.
Under a universal scheme, one of two paths could be taken.
First, a state could offer universal diploma privilege to any graduate of 2020 impacted by COVID to come to their state. Again. All relevant application materials, additional exams, regulations, and fees would remain. Applicants would simply not be required to pass the bar in that state. The New York Senate bill may fall into this category, depending on how it is interpreted. Advocates suggest that it changes the definition of the bar exam to be MPRE plus NYLE plus Character and Fitness and thus allows any applicants from any state. Something like this could work. States which adopt such regulation may also choose to enact supervised practice in line with the diploma privilege plus approaches advocated some months ago
A second path for universal diploma privilege would be for an interstate pact or national legislation. Such a policy would grant reciprocal diploma privilege across the country, or more likely, across some subset of states like those who already use the UBE standard.
There may be concerns that states would open themselves up to unqualified practice if they were to pass such a law. However, the vast majority of bar examinees pass on their first time and even more, do so on subsequent attempts. Moreover, the bar is equipped with a number of other mechanisms to maintain safe and legitimate practice – from character and fitness to bar complaints and discipline.
We’ve seen recently that the bar exam is rooted in racist exclusion from the legal profession. There is no compelling evidence in all of this that the bar exam is necessary to protect the public, prevent malpractice, or even test minimum competency. But these issues can be addressed later. The urgency of the moment asks that state boards of law examiners and Bar Associations match the vision of progressive jurisdictions that have advanced diploma privilege and lead us a step further.
Reciprocity or general acceptance diploma privilege policy would remove an economic and racialized hurdle from the practice of law in a year when graduates are already struggling and, conveniently, when states need more lawyers to serve people being evicted, abused, discriminated against, and being denied necessary benefits. Such a policy could provide needed relief and attract high skilled legal workers to states at just the time when they need them.
We do not have time to tiptoe, afraid to challenge the specter of tradition – attached, unthinking, to the old ways. Diploma privilege was seen as radical until recently but there is nothing stopping us from making this more fair. Law students, professors, judges, attorneys, and the public, we need to ask, what are we afraid of if our brightest young minds can get to work defending and advancing our laws now. What are we afraid of if they are not hazed with two months of rote memorization? If they are not pressured to take time off work, to spend thousands of dollars studying flashcards of law that they will never practice when the law they need is always a single search bar away. Diploma privilege is the right way to meet this moment. And diploma privilege is not complete without reciprocity between states. What a shame it would be to make the bold leap we need and leave out a crop of graduates who did nothing wrong.
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.”
Reed Showalter, J.D., is a recent graduate of Columbia Law.
Suggested Citation: Reed Showalter, Universal Diploma Privilege and Reciprocity: The Ethical Choice for 2020 Graduates, JURIST – Student Commentary, July 9, 2020, https://www.jurist.org/commentary/2020/07/reed-showalter-diploma-privilege/.
This article was prepared for publication by Brianna Bell, a JURIST Staff Editor. Please direct any questions or comments to her at commentary@jurist.org.
