COVID-19 has created an additional layer of complexity and uncertainty for this year's bar exam, with many advocating for diploma privilege.
Annually, an estimated 80,000 law graduates take the bar exam nationwide—with New York alone originally scheduled to administer the July bar exam to over 10,000 test-takers. While preparing and passing the bar has long been an exhausting feat, the unprecedented COVID-19 global pandemic has created a great deal of uncertainty for this year's law school graduates.
COVID-19 spreads mainly through close personal contact for a prolonged period, according to the CDC. Bar exams are held in convention centers and other large venues, accommodating hundreds—and sometimes thousands—of bar-exam takers. Given the CDC's social distancing recommendations and continued spikes of the virus in the US, many question if bar examiners will realistically be able to administer the exam safely, especially for exam takers at a higher risk due to underlying health conditions.
Over half of US states and DC have postponed or modified the July 2020 bar exam dates
As expected, plans for the bar exam differ greatly from state to state. Seventeen states plan on holding the in-person July bar exam on its originally scheduled date. Arizona is one of several states administering the in-person July exam despite a surge in coronavirus cases. In North Carolina, recent law graduates will take a two-day in-person exam on July 28-29, their pleas for safer accommodations going largely unanswered.
Bar applicant Britni Prybol, mother and cancer survivor, wrote to the North Carolina Board of Law Examiners to express how the exam “presented her with insurmountable stress and cause for concern due to the state of her health.” The North Carolina Board replied:
“Should you find that your concerns as to your health and safety or that of others has become such a distraction that you cannot be prepared and at your best for the examination set July 28, and July 29, 2020, then you may make the personal decision that you will not undertake the Bar Exam in 2020.” (emphasis added)
North Carolina bar applicants are “terrified about [the thought of] someone getting sick and dying as a result of taking the exam. Or their family members getting sick and dying.”
As of this week, at least one third of states have rescheduled the exam, with New York canceling its September administration.
Though dates continue to be subject to change, Kansas, Nebraska, Minnesota, and Virginia will hold an in-person bar exam in July and September. Bar exam-takers in Virginia can elect to sit for the originally scheduled July 2020 exam, take a one-day essay only exam in September, or carry forward their application to the February 2021 exam. The Texas Board of Law Examiners will hold the bar exam on September 9-10 and an online exam on October 5-6.
The District of Columbia, as well as Michigan, Indiana, Louisiana, Nevada, and Maryland, will administer an online exam. Nevada will conduct an online, open-book exam on July 28-29, consisting of eight one-hour essays and a performance test. On July 16, California announced that in addition to administering an online exam, they would be lowering the bar exam cut-off score from 1439 to 1390. In Louisiana, over 250 law school graduates appealed to the state Supreme Court for diploma privilege after their July exam dates were canceled with little notice.
Many test-takers and legal employers feel that continuing to postpone an in-person bar exam puts both parties in limbo, as many recent graduates are scheduled to start in January, with the expectation that they will already have sat for the exam by October. On the other hand, holding the exam online poses security and accessibility issues.
Advocates for diploma privilege
Some advocate for diploma privilege as a response to issues around safely administering the bar exam. Diploma privilege would allow law graduates to obtain a license to practice law by graduating from an approved law school and meeting other requirements. Before COVID-19, Wisconsin was the only state to offer diploma privilege. This is available to graduates who obtain a “C” or better average, graduated from an approved law school, and complete a diploma privilege course.
Many recent law graduates are pushing for the diploma privilege pathway to their law license. United for Diploma Privilege is a national movement of law students, recent graduates, and legal professionals—all advocating for diploma privilege in 31 states. Looking beyond the need for an emergency solution in the midst of the COVID-19 pandemic, many within this movement argue that the exam has long been a flawed measure of lawyer competence and see current conditions as an opportunity to fix an already broken system
Washington, Utah, and Oregon have already adopted emergency diploma privilege. The Minnesota Supreme Court announced it would consider waiving the bar exam and grant diploma privilege for recent law graduates. In New York, State Senator Brad Hoylman introduced a bill that would grant emergency diploma privilege. The justification document submitted with the bill outlines a clear argument for diploma privilege.
“[L]aw graduates are reporting that the already-stressful bar exam preparation has been compounded by personal challenges ranging from their own health and well-being to financial hardship to increased caregiving responsibilities … a modified form of diploma privilege, as proposed in this bill, would give law graduates a reprieve from further delays in admittance.”
After this week’s cancellation of the September bar exam dates, the deans at 15 of New York's law schools submitted a letter to Governor Cuomo and other officials advocating for New York to adopt diploma privilege as well:
“Yesterday, the Court of Appeals announced that it had canceled the in-person September bar exam, leaving our graduates with grave doubt and anxiety as to the nature and timing of their opportunity for admission to the bar and ability to enter the profession. We, the deans of New York’s 15 law schools, write to urge that New York adopt a diploma privilege in the swiftest way possible. We know the Court is considering this among other options, and we know that there is pending legislation to this effect in the legislature. Immediate action is essential.”
If granted in New York, diploma privilege would impact the largest group of bar-exam takers in the country.
Amid the uncertainty spurred by the ongoing COVID-19 pandemic, many agree that if you are in a jurisdiction left in limbo, your best bet is to study and stay informed.
Visit the website for the National Conference of Bar Examiners for bar exam status updates in your jurisdiction, as they are subject to change. For more information about diploma privilege, check out the website for United for Diploma Privilege.