« Espinoza's Recasting of Trinity Lutheran Raises Religious Liberty Questions | Main | Rule of Four »

Thursday, July 02, 2020

COVID-19 and state bar licensing

There has been fairly widespread coverage of the situation with state bar exams and new law school graduates.  As befits our highly balkanized system -- what I have called in a paper I am busy working on, "Our Bar Federalism -- there are fifty different conversations underway.  Some states (Utah, Washington, Oregon) have adopted a version of a diploma privilege; some states have constructed forms of limited license practice -- so a variation on the diploma privilege scheme; others have postponed their bar exam and/or committed to administer it on-line; many states have not yet made up their mind.  So, lots going on in space.  As more solutions emerge, there will be more information available, perhaps also on this blog.

Incredibly, a few states remain intransigent about administering the bar exam on time and in the ordinary way, albeit with social distancing protocols and other adaptations.  In some of these states, bar authorities are requiring students to sign waivers of liability so as to protect the bar examiners.  It is fair to say that the supreme court and bar authorities in these states are getting an enormous amount of pressure, led by worried, and well-organized, new graduates, to revisit their decisions to go ahead with business as more-or-less usual.  These students are working to collect allies from throughout the profession, including leaders in legal education, to speak out on their behalf.  

A number of other letters continue to circulate, in California, Illinois, Texas, Florida, North Carolina, and elsewhere.  Typically these letters highlight particular "impact statements," depictions of the special burdens and dilemmas that new graduates face.  Without summarizing in any way these personal stories, I can assure you that there are truly heart-rendering, and occasionally even tragic.  They reveal a cohort under enormous stress, facing health and economic difficulties that undergird their worry. And, too, they illustrate the costs of a broken system, that is, the potential erasure of so many graduates who would otherwise succeed on the bar exam and in their new careers. Here is one letter from a graduate of an east coast law school speaking to the New York bar authorities:

"I am a recent graduate of an ABA-accredited law school. Like thousands across the country who also registered for New York’s bar examination, I remain eager to serve as an attorney in the State which Judge Michael J. Garcia of the New York Court of Appeals aptly described as “one of the most robust legal markets in the country.” Drawing further from Judge Garcia’s letter to the Deans of each of New York’s law schools, I am certain of our collective agreement on at least one other principle: that we candidates for admission to New York’s bar continue to face challenges of grave magnitude, owing primarily to the continued spread of COVID-19 absent a vaccination’s (imperfect) promise of safety to otherwise quell our fears.

. . .

What good is the talent New York hopes to attract if it dies (literally or metaphorically) at the testing table or the bar prep desk, weakened in the physical sense by this virus or emotionally and mentally for having endured months of study and of encouraging the courts and the Board of Law Examiners to adopt the common sense alternatives to the in-person bar examination which many in the legal community have supported? The American Bar Association first urged states to cancel their bar exams on April 7; the deans of all law schools in California have united to support a diploma privilege there; the deans of Texas law schools and the Bar Associations of Houston, Austin, San Antonio and Dallas have done the same; and I’ve now lost count of the number of professors and lawyers who stand in support of either a diploma privilege or a remote exam administration. Contrariwise, the NYSBA’s Bar Exam Task Force and the Court of Appeals insist with great fervor that we need to take this test in person. The same Task Force has reservations about the exam’s ability to measure preparedness for practice in New York  – reservations which, coupled with mounting recognition of the fact that the bar exam is more likely a revenue-generating gatekeeping tool than it is a yardstick of attorney competence cannot be reconciled with the State’s unwillingness to consider an emergency alternative in the wake of a pandemic.

The other states I mention in this letter have demonstrated something you might think is simple but has proven itself utterly remarkable in light of New York’s treatment of bar admission candidates: trust - in the law school accreditation process, for those states that granted a diploma privilege, and in their graduates, in the case of both the diploma privilege and online, remote administration. I believe we who intend to sit for New York’s exam have done everything in our power to show that we deserve this level of trust from the State’s courts and legislature. We’ve shown a willingness to pay through the nose for it, too – registering for other states’ exams just for the chance to transfer our scores into the place whose people we are eager to serve.

What will it take for the Court of Appeals to hear us? I am an immunocompromised candidate whose father survived COVID and whose last living grandparents are still recovering from the virus’s deadly effects. Like many of my colleagues, I lost a loved one. I live in a constant state of fear, not only of contracting this illness but of failing to convince those who have taken this far less seriously that they ought to be more worried. My immigrant parents could not be prouder of me for making it further than anyone in our family ever has. I live in fear of letting them down, by taking the time to write letters like these – time they would prefer I spend studying. But I am tired of having to sing for my supper. I shouldn’t have to bear my soul to earn my keep, without contracting an illness in the process. I do not want to believe that the profession we know not to have always been welcoming of people who look like me, and less so of my Black brothers and sisters and gender non-conforming peers, is far more impermeable than any of us could have imagined.  I stand proudly before anyone who reads this, having achieved all that I have in this life against all odds, with one desire: to practice the law. I appeal to you on grounds of public health, safety, and shared struggle in the journey to becoming a lawyer, for those of you who know all too well the trials and tribulations of law school. You know that after three years of rigorous coursework and practical preparation, nobody should have to risk her life to sit for an examination. I urge you to make our voices heard by lending yours to the movement. Please support the cause for an alternative to the in-person bar exam in September, whether it be a diploma privilege or an online administration of the exam. Our lives and our ability to contribute that great talent of which Judge Garcia spoke in his letter quite literally depend on it."




Posted by Dan Rodriguez on July 2, 2020 at 12:12 PM in Daniel Rodriguez | Permalink


90% of the law schools have concluded that the finals would be testing one's fortune to stay away from the impact of COVID-19 and therefore enacted across the board credit/non-credit grading policy.

Three months later, with the ongoing economic recession, street unrest, and pandemic, the bar exam will be testing people's privilege, not basic competence.

Black lives matter.

Posted by: Barbara Ellis | Jul 2, 2020 4:45:00 PM

The bar should use the pandemic as an opportunity to study the efficacy of the bar exam. Is it really serving any purpose?

Cancel the bar exam this year, and then study the Class of 2020. Look at the grads in 5 years. Are there more bar complaints? More allegations of ineffective assistance? Less career progression (while controlling for economic factors)? If not, then why are we using this expensive, time-consuming, discriminatory thing as a vehicle for gate-keeping?

Posted by: Donald Caster | Jul 2, 2020 4:08:35 PM

The comments to this entry are closed.