This post is part of a series about my new book Shortlisted: Women in the Shadows of the Supreme Court, co-authored with Hannah Brenner Johnson. The first post offered an overview of the book. The second shed some light on how we found the women profiled in the book. The third examined what it means to be "shortlisted." The fourth covered a shortlisting featured in the new FX show "Mrs. America." The fifth highlighted one example of a structural reform that can combat the harmful consequences of being "shortlisted." Today's post questions who might (not) appear on future shortlists if the diploma privilege is not extended to 2020 law graduates.
Thousands of would-be lawyers will not be licensed this fall because bar exams are being cancelled due to COVID-19 or because test-takers fear exposure to the potentially deadly virus. (At the moment, numerous states have postponed or cancelled the summer exam, with about 20 still planning to go forward in-person even as the coronavirus spikes across the country.) Without a license to practice law, careers will be put on hold and opportunities for advancement within the legal profession will be delayed.
As my University of Houston Law Center colleague Professor Dave Fagundes and I recently wrote in an op-ed, Texas Should Cancel Its 2020 Bar Exam:
Taking the test in person, like studying, dining, worshiping or spectating in person, carries unacceptable risks for the examinees, the family members they will return to after sitting through the exam all day, and the public that encounters them. While the Texas bar has offered measures to reduce the transmission of the coronavirus during this summer's scheduled bar exam setting, social distancing and wearing masks indoors can only mitigate, not eliminate, the possibility of contracting or spreading the potentially deadly virus.
Not only does an in-person bar exam pose unacceptable health risks, there are other serious concerns at stake. Most of these future lawyers emerged from three intense years of law school just as the novel coronavirus pandemic hit. Now, with libraries and law schools closed, bar applicants are relegated to studying alone, at home, with all of the distractions and loneliness that entails. Some may be worried that they have been exposed, or reasonably fear exposure, to the coronavirus, or have friends or relatives who are sick or have died from COVID-19. Bar applicants with child care responsibilities or without the money for a decent Wi-Fi connection face particular challenges. In light of all this, failing this year's bar exam is more to be a reflection of coronavirus-related stressors than an indication of unfitness to practice law.
The good news is that there is a solution, called the diploma privilege, which would allow 2020 Texas law school graduates to receive their license to practice without passing the exam in light of these unique circumstances.
Alas, we did not fully persuade all members of the Supreme Court of Texas when they voted in early July to delay the exam until September (in-person) or October (on-line). (Only Chief Justice Nathan Hecht and Justice Paul Green, who dissented from the order, agreed with a diploma privilege.) But it is not too late for courts--or legislatures--to intervene and grant a diploma privilege. Indeed, some states have already taken this step, including Oregon, Utah, Washington and Wisconsin.
As I listened to a recent Strict Scrutiny podcast on the topic, I wondered about the long-term consequences of delayed entry for our newest lawyers. University of Michigan law professor Leah Litman interviewed one of the co-founders of United for Diploma Privilege, Dr. Pilar Escontrias. As Dr. Escontrias points out, the burdens of COVID-19 fall disproportionately on women and minorities, which means they are most likely to be the ones whose careers are stalled. And they are already vastly under-represented in positions of leadership and power even without the hardship of this global pandemic.
Future shortlists, whether for the Supreme Court or for any elite position, are likely to be less diverse unless steps are taken now to give all law graduates equal footing in their ability to launch their legal careers, not to mention earn a living after three years of study, often reliant upon loans. The diploma privilege may not be a perfect solution, but it is the best alternative in the midst of our COVID-19 world. But don't take my word for it; listen to Dr. Escontrias, one of the future lawyers whose career hangs in the balance. The 38-minute long Strict Scrutiny podcast is well worth your time.
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