Taking the oath (photo: Demetrius Freeman/Mayoral Photography Office)
James, whose name we’ve changed for confidentiality, is a recent law school graduate living in Brooklyn. Their partner had been the household’s sole income-earner — covering rent, food, and more — until she lost all employment during the COVID-19 pandemic and has not been able to get a new job. The couple now survives through unemployment checks, which could be reduced by 60% or more at the end of this month. James had to fund their law school education almost entirely through student loans, with payments due starting at the end of 2020. And they are still waiting to take the bar exam — the sole barrier between law school graduates and becoming licensed lawyers with all the responsibilities and job opportunities that come with such status.
Thousands of other law school graduates are also waiting, because no graduate knows when a safe, equitable New York bar exam will next occur. The COVID-19 pandemic changed everything for everyone, law grads included. This week, 23 states will force thousands of law school graduates to risk their lives to take a test. New York has been a different kind of nightmare. In March, the New York Court of Appeals postponed the July bar exam to September. On July 16, the Court of Appeals informed these students that the bar exam needed to be delayed once again due to concerns over both in-person and online exams, only to announce just days later, it will hold an online exam in October.
The uncertainty surrounding the New York bar exam has been devastating. After the March news, thousands of job offers were delayed or revoked until the September exam date, leaving students without salaries and health insurance, and with far more uncertainty and insecurity. Unemployed graduates were left to job hunt during an unprecedented pandemic. The lack of clarity for recent graduates has left many in limbo, wondering how or when they can pay for rent, food, health expenses, or their pending debt from law school. It also further exacerbates mental health inequities in a field long known for widespread depression and mental health stigma.
The only compassionate and equitable option for New York’s future lawyers right now is diploma privilege.
Under diploma privilege, applicants can be admitted to the bar without taking a bar exam but following successfully graduating from law school and satisfying certain other requirements like passing the New York Law Exam and the Multistate Professional Responsibility Exam and completing a “character and fitness” assessment.
Many have suggested alternatives to the in-person bar exam: Why not prepare an online bar exam? Why can’t law graduates just receive provisional licensure until the next bar exam in February 2021?
While we respect the New York Bar’s awareness of the risks an in-person exam currently poses, the announced or proposed alternatives are neither sufficient nor equitable. Online exams disadvantage test-takers lacking stable internet access — what if applicants are kicked out mid-exam due to unreliable internet? — and risk test-takers’ data privacy. Lawyers and disabled rights advocates are also concerned online exams will likely not grant the flexibility needed to make the exam truly accessible. Screen-related health and accessibility issues and the application window already being closed for accommodations means that currently-granted accommodations may not work for the October exam. Provisional licensure — temporary licensure until the bar exam is offered — furthers uncertainty for applicants and employers alike. It requires employers, such as already over-stretched legal services providers, to reduce supervising attorneys’ caseloads to supervise provisional licensees. Plus, the bar exam takes a long time to prepare for. By requiring applicants to take the bar exam in some unspecified future, provisional licensure disproportionately and negatively harms applicants who cannot obtain legal employment or take time off from work for full-time study.
The exam is also an equity issue. For instance, in-person exams risk harming applicants who live in multi-generational homes or live with immunocompromised family members. United for Diploma Privilege - NY (UDPNY) surveys have shown these applicants are more likely to be women and/or Black, Indigenous, and people of color (BIPOC). But if New York adopts the National Committee of Bar Examiners (NCBE) guidelines, the online exam would still disproportionately harm disabled applicants by requiring applicants requiring accommodations to complete their exams in person. New York legal leadership claims to care about diversity, inclusion, and lawyer mental health and well-being. Yet all of these options disproportionately harm BIPOC, low income, disabled, first-generation, and chronically ill bar applicants — the people the bar exam was already most inaccessible to.
Diploma privilege is neither a radical nor a new idea. Wisconsin has long offered diploma privilege, with noted beneficiaries including the NCBE’s president, Judith A. Gundersen. Washington, Oregon, Utah, and Louisiana have granted diploma privilege to students from ABA-accredited law schools in response to COVID-19. And measures to pass diploma privilege in New York have popular support from graduates, local legal employers and unions, and now, every law school dean in New York.
There are two paths to diploma privilege in New York. The Court of Appeals could still offer diploma privilege to all graduates from ABA-accredited law schools rather than insisting upon an unproven online exam. If it makes the equitable decision to extend diploma privilege, the Court could subsequently provide important regulations to ensure these graduates would receive additional training through its preexisting Continued Legal Education programs.
Alternatively, State Senator Brad Hoylman and Assemblymember Jo Anne Simon are sponsoring a bill to license J.D. graduates from ABA-accredited schools who otherwise satisfy the requirements of the New York Bar. This bill would provide immediate, necessary relief to thousands of recent graduates.
Diploma privilege is an equitable and sound solution that would provide advantages to recent law school graduates and New York State overall. Graduates would receive needed licensure while New York can simultaneously strengthen its legal system with the inclusion of competent, energized young lawyers. An online exam does not ensure equity. We can’t pretend things are still business as usual in any field, law included. More than ever, New York needs diploma privilege now.
Winn Periyasamy, MPH, is a policy advocate, writer, and second year law student at Fordham Law School. Mary Kate Cunningham is a recent graduate from Fordham Law School and a member of United for Diploma Privilege - New York. On Twitter: @wperiyasamy & @MKCunningham91. Thanks to Matthew Cortland, Kathy Flaherty and Alex Petkanas for their feedback in writing this piece.