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The South Carolina Bar Exam

The Supreme Court of South Carolina recently put out a message that it “intends to administer the July Bar Examination on July 28-29, 2020. The Court will continue to evaluate the COVID-19 crisis, including state and federal directives and guidance, to determine if the Bar Examination can be safely administered in July. If it is not possible to conduct the examination in July, the Court intends to administer the Bar Examination on September 9-10, 2020, to the applicants who would have taken the Examination in July.”

The Bar Exam is the test a law school graduate must take in order to go from “wanna be” to practicing Attorney.  Regardless of whether the Bar Examination is conducted in July or September, almost every state is having to face this situation with their recent law school graduates.   Each state is addressing it differently.  New York has decided to cancel their Bar Exam and introduce a “temporary-licensure if you are working with a licensed attorney of at least three years” until the Bar Exam can be administered.  Other States are doing online bar exams while even more are doing Diploma Privilege.  That means that if you have received a “diploma” from a law school and you registered for the bar exam, that you are now admitted to practice law.

Recently Colin Miller, an evidence professor at the USC School of Law, tweeted:

“Research Saturday: We had a diploma privilege in South Carolina until 1950, when the Speaker of the General Assembly introduced a bill requiring bar passage to “bar Negroes and some undesirable whites” from practicing law.”He then cited a statement from the Cain to Smith Papers from January 9, 1952, that stated “When the Speaker of the South Carolina General Assembly introduced the bill that made passing the bar exam compulsory for all prospective lawyers, he made it clear that the purpose of the bill was to ‘bar Negroes and some undesirable whites’ from the practice of law.”

The History

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.

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.”

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.

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.  Law students have meanwhile felt the bar breathing down their necks in other ways.

Is this now the time that the Bar Exam is evaluated?  Professional certification of lawyers in the public interest need not be abandoned. But is the bar exam still the answer? Diploma privilege offers an alternative path, but is it the correct path?  Should we instill the residency method that New York is temporarily offering?    A combination of them all  – what do you think should be the future?

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