Law Schools

Bar Examiners Attempt Mind Trick On Diploma Privilege Petition, Fail

The emergency diploma privilege petition took a clever angle and the bar examiners hope the court ignores that entirely.

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The crux of the problem for the Pennsylvania Board of Bar Examiners in fending off the emergency diploma privilege petition filed by Temple Law Emeritus Professor Louis M. Natali Jr. and Law Students for Equitable Responses to COVID-19 — arguing that the planned online exam violates a provision of the Pennsylvania constitution requiring a heightened standard for licensure tests — can be summed up in a single sentence in the response filed by the examiners yesterday:

This argument is premised almost entirely upon the supposed shortcomings of the remote procedure that will be used for the October exam and not on the efficacy of generally using an examination as a tool for measuring competency.

The problem for the examiners is that this is entirely true, but this is the strength of the petition, not its weakness.

The original petition laid out the NCBE’s repeated claims that an online bar exam amounts to no competency exam at all. Whether or not that’s true, it leaves the Pennsylvania bar examiners in a pickle as they have exactly zilch defense of their mission beyond the word of the NCBE and the NCBE is already throwing them under the bus. Trying to shift this back to the general exam is just a Jedi mind trick, but unfortunately for them the online exam is the precise droid we’re looking for.

In perhaps the saddest point of the response, the examiners claim that if the petitioners are correct that the exam fails to meet the heightened standard required by the state constitution, “the remedy would be a detailed study” — an implicit admission that the examiners really have nothing backing their cause but the arguably self-serving studies put out by the NCBE. Too bad the remedy for constitutional violations is not “go ahead until we can hear from a committee.”

With a heightened standard for allowing an exam to interfere with a citizen’s chosen profession, the burden is upon the bar examiners to prove that the online exam meets the — pun intended — high bar that the court has previously found that the in-person bar exam cleared.

Gamely, the bar examiners try to gloss over this problem by indicating that they will, you know, mostly give the same exam they planned to give in-person. It’s a response that’s all well and good except when you remember that the people who make the test that Pennsylvania claims is so great have gone on record that online exams aren’t any good creating a problem that the bar examiners just can’t get around.

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Full credit to the attorneys behind this response, as they recognize — even as they elide — this problem and mention as an aside that they’ve engaged their own private psychometrician to tell them “Pennsylvania’s system is more reliable than the ‘half exam’ used in other jurisdictions,” a conclusion that is noticeably not the same as “equal to the existing bar exam” which is the burden upon the bar examiners. Beyond that, the response outlines a spirited defense of ExamSoft’s Michigan debacle and a litany of accommodations that Pennsylvania has instituted to mitigate common problems with online exams and the bar examiners deserve credit for doing a much better job of this than most states.

Alas, “E for effort” isn’t the applicable standard.

And so the examiners lean on the standard bar exam bromides that offer no substantive insight but have proven shockingly successful in quelling the intellectual rigor of jurists across the country.

This is no small issue; on the July 2019 test, for example, the passage rate for first time test takers was 80.60 per cent.

At this point no one should need reminding that despite branding itself as a “minimum competency” test, passing the bar exam is not like passing the driving test. Passing scores on bar exams are set by a number of factors up to and including the existing bar’s protectionist interest in limiting admission of new competition, but it’s not actually controversial to say that an overriding factor is setting the score for the purpose of failing between 15-25 percent of examinees. It’s self-justifying: the bar exam is important because we fail 20 percent of examinees and we fail 20 percent of examinees to prove how important the bar exam is.

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In an actual competency test, it would be possible for 100 percent of takers to pass the test, that this is impossible of a bar exam is a damning indictment of its “minimum competency” claims.

Most states have declined to follow this path. As the Supreme Court of Ohio recently stated in rejecting a petition seeking a diploma privilege:

The court agrees with our colleagues in other jurisdictions who have recently denied similar petitions. It is the court’s obligation to protect the public and the integrity of the profession through oversight of the profession and its practitioners. The purpose of the bar examination is to ensure minimum competence of those admitted to the practice of law. With the aforementioned orders, the court has taken steps to minimize the concerns raised by the petition while continuing to carry out its responsibility to promote the integrity of the legal profession.

A more empty set of words would be difficult to find. “The court’s obligation to protect the public and the integrity of the profession through oversight of the profession and its practitioners,” isn’t the question, the question is why does this exam — especially this exam in a plague-ridden online format — fulfill that obligation?

Is there evidence that bar exam passage prevents integrity problems among the local bar? Nope. Is the bar exam a minimum competency test? No, we already addressed that above. Is there evidence that a one-time examination constitutes meaningful oversight of a career? We’ve actually got some research on how that could be handled better by a number of alternative procedures. Is the court willing to formally state that it believes accredited law schools are professionally worthless? Because if not, what’s the point of this test and if so, shouldn’t raising those standards be the primary concern of the court rather than trying to square-peg-round-hole a half-measure test upon a bunch of people?

Citing the West Wing approvingly requires mainlining grains of salt and forgetting 20 years of political reality, but here’s my question to all these courts: “What are the next 10 words of your answer?” Because if anyone is willing to get past “we need it for public protection and maintaining professional integrity,” it would help a lot.

(Response attached on the next page…)

Earlier: New Petition Uses NCBE’s Own Logic To Support Diploma Privilege Bid

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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