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New Petition Uses NCBE's Own Logic To Support Diploma Privilege Bid

The NCBE may have proven too much.

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The push for diploma privilege across the country has taken many avenues, from court filings to legislative appeals to direct protest. Another state is going to hear the former with a new petition filed by Temple Law Emeritus Professor Louis M. Natali Jr. and attorneys from Buchanan Ingersoll, headed by shareholder Michael Engle, on behalf of Law Students for Equitable Responses to COVID-19 (LSERC).

The petition lodges a constitutional challenge to the online bar exam format, requesting emergency diploma privilege plus as opposed to throwing applicants into the choppy waters of online testing.

The petition, provided on the next page, contends that the October online exam amounts to an as applied violation of the Pennsylvania state constitution, which provides that the freedom to pursue one’s profession not be denied absent due process. Existing licensing regulations must thus pass a heightened rational basis test demonstrating a “real and substantial relation” to the public interest that can overcome a finding that a requirement is “unreasonable, unduly oppressive, or patently beyond the necessities of the case,” as applied.

The twist is that the petition uses the NCBE’s reasoning to argue for diploma privilege. Taking as a given that forcing applicants into an in-person exam is a bridge too far — something the bar examiners already conceded when they opted for an online exam — the petition then cites the NCBE’s insistence that online exams cannot possibly protect the public the way their in-person exam does.

The NCBE has made clear that a reduced-question, remote bar exam cannot reliably measure minimum competency due to the lack of psychometric research: “Without further research, scores from an abbreviated version of the MBE administered by remote testing cannot be considered comparable to the standard, paper-based, full-length MBE administration, such comparability being an essential requirement for equating and scaling.”

If the hardships are already too extreme for an in-person exam then the online exam must fall because it cannot meet the required threshold of substantial relation to the goal of protecting the public. It’s a clever angle of attack that has the benefit of making a lot of sense. A survey cited in the filing notes some underheralded harms of the delays:

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In terms of financial costs, October Candidates have suffered discrete financial harms due to the postponements of the July Exam (81.5%) and the September Exam (at least 74%). Exhibit D-1. The harm is so burdensome that only 39.1% of 299 respondents reported that they are financially able to study through the October Exam. Id. In fact, over 30% of 234 respondents anticipated needing to apply for a bar loan because of the second postponement of the July Exam. Id.

On top of this are the costs associated with technology and testing space acquisition. There’s just no good argument for dragging this out!

Especially when the NCBE laid the groundwork themselves for this powerful defense of diploma privilege. This probably isn’t where they expected to find themselves cited, but COVID makes strange bedfellows.

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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