Josh Blackman (South Texas), The Elephant in the Room for the Diploma Privilege Debate:
State Supreme Courts continue to divide about how to handle the bar exam. Some states still plan to hold in-person exams. Other states plan to hold a remote, online exam. And some states plan to give an emergency "diploma privilege." Applicants who had already registered for the July 2020 bar exam would be admitted to the bar, with certain conditions; for example, they may have to take additional CLE classes, or serve in some sort of "apprenticeship" function. But they will not have to take an exam.
With the diploma privilege, 100% of registered test takers will be admitted. In 2019, nearly 80% of those sitting for their first bar exam passed. Simple arithmetic tells us that nationwide, 20% of first-time test takers failed. In a state with an 80% pass rate, on average, about 20% of first-time takers will have failed the bar exam. With a diploma privilege, those 20% who would have failed will now be admitted.
We also know that nearly 90% of law graduates pass a bar exam within two years. Let's assume a state with a 90% two-year pass rate adopts a diploma privilege. Approximately 10% of test-takers who would have not passed within two years, could now be admitted without an exam. ...
The applicants who fail the bar once, or multiple times, are the elephant in the room. Let's assume that the bar exam is a meaningful indicator of competency to practice. If that fact is true, the diploma privilege should not be awarded to the 10% of applicants who will not be able to pass the exam. But how can we know in advance who will fall into that category? ...
Debates about the diploma privilege should be more candid about this elephant in the room.
For most applicants who pass the bar, the privilege merely saves them the trouble of sitting for the exam. They'll pass. But for some applicants who will not pass the bar on several tries, the privilege lets them bypass a hurdle they could not otherwise clear. Perhaps states should be more candid and simply deny the privilege to people who have already failed the bar. They are the people most likely to fail again. Yet, that approach would place an even greater burden on those who face great difficulties. This entire experience may demonstrate that the bar exam, as it is present constituted, should be jettisoned altogether. The Boards of Law Examiners will have to realize that their future may not involve exams.