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State Bar & Bar Associations,
Legal Education

Apr. 22, 2020

Provisional licensing is a better option than diploma privilege

Advocates characterize diploma privilege as a reasonable defense of students who navigate strained finances, immigration struggles, race provocations, and shelter-in-place parenting today. Diploma privilege exudes compassion, they say. If enacted, the legal community responds to coronavirus with social justice.

James Lamb

JD Candidate, Class of 2020, UC Irvine School of Law

Advocates characterize diploma privilege as a reasonable defense of students who navigate strained finances, immigration struggles, race provocations, and shelter-in-place parenting today. Diploma privilege exudes compassion, they say. If enacted, the legal community responds to coronavirus with social justice.

I disagree. Provisional licensing under established attorneys contingent upon later bar passage extends the class of 2020 the best possible option to join the legal profession in California in good standing. Unlike diploma privilege, provisional licensing neutralizes stigma, and regards the nontraditional law student as an aspiring professional, not an abstract concept dependent upon social safety largesse.

Before law school, I was hired as a communications associate by Connecticut's premier think tank on children and family issues. Five days a week lawyers and statisticians and policy wonks researched and debated urban poverty, eager to parse root causes of an ever-increasing black unemployment rate over donuts and Caramel Macchiatos. Each morning I arrived at work I entered the "white space," defined by Yale sociologist Elijah Anderson as "a situation that reinforces a normative sensibility in settings in which black people are typically absent, not expected, or marginalized when present."

It was no shock when the only people at development events who reflected my complexion offered patrons Moët Imperial and coconut shrimp; the shock came later when none of my communication ideas reached willing ears unless someone who lacked my melanin parroted the idea as their own. My job was not to think independently, to compose arresting prose, or to lobby state legislators. Sensitive to having its white papers dismissed as anti-black, my job was to ward off the nonprofit's lack of diversity concerns as an accessible Bryant Gumbel. Management overflowed with educated, moral lawyers determined to increase state funding to poverty programs. They were the experts, legitimate and credentialed and white, fueled by Diet Coke and normative certainty. I was their token. I did not last long. Not bad people: They just did not wish to hear the subaltern speak.

I did not suffer law school to repeat this performance. Stigma matters. Diploma privilege would reduce the class of 2020 to a beggar cohort who elicit disdain from all with every inevitable mistake. Older lawyers still rib younger associates who only suffered through a two-day bar; the disrespect diploma privilege would impose appears incalculable. Yes, the bar exam amounts to little more than traditional hazing procedurally codified. Yes, correlations between bar passage and effective counsel assistance prove difficult to quantify. Yes, bar exam gatekeeping victimizes lower resourced communities of color. That is all regrettable and beside the point.

The point is that bar passage irradiates imposter syndrome. No matter what resources their peers enjoyed, licensed attorneys from underprivileged communities know in this state that they fulfilled the same requirements as tradition demands, without traditional resources. I think of the minority UC Irvine School of Law alums, the advocates from minority bar associations, the black judges who wield authority with uncommon grace and unmatched professionalism. They all persevered. Sit in any courtroom in the Central District of California: you will watch masterful litigation from all manner of diverse practitioners - women, parents, people of color, people who know poverty. There's a word to describe them. Legitimate. I oppose any measure that would degrade my legitimacy as a lawyer.

To graduate law school during this quarantine is to experience theft. Sometimes this theft is small, like cancelling Barrister's Ball or Commencement. Sometimes it's material, like replacing physical classrooms with Zoom or postponing 9th Circuit oral arguments. Sometimes it devastates, like ad-hoc mass grading changes and bar exam uncertainty. All are reactions to global calamity, not calamity itself.

We are told by the outspoken student advocates of my class that diploma privilege is the only compassionate option given secondary outbreaks, student loans, and professional obligations. We are told that a populist, universal measure presents the only solution for diverse students. We are told to regard any insistence on the bar exam as a reasonable obstacle before legal practice as both antiquated cruelty and practical impossibility.

Provisional licensing coupled with apprenticeship to established attorneys until a traditional bar exam may be administered safely in this state reasonably addresses COVID-19 disruption. Graduates work, firms hire, clients benefit, and stigma need not adhere to students who give their intellects and their sweat to fight for justice. Diploma privilege is an unneeded shortcut. Members of my class clawed back from grotesque sexual violations to graduate on schedule. Student parents work odd jobs and seek public assistance to make ends meet while they study for doctrinal exams and write clinic briefs. Black law students suffer police encounters where uniforms holding Glocks determine whether aspiring intellectual property attorneys constitute true threats. No one sought diploma privilege to compensate for any of this. The only difference between these student hardships and the present calamity is the fact that being a single, wealthy, white citizen offers no aerosolized coronavirus immunity.

Financially dependent 20-somethings who can retreat to quiet rooms in placid suburbia for Zoom classes linked by Comcast Xfinity fiber optics need not consider quarantine budgeting, tandem parenting with a working spouse, or securing the next Charmin roll. But they were forced to retreat, and this dislocation breeds advocacy. To accommodate their anxiety, advocates for diploma privilege beg the state bar to discard the bar exam, like reducing a video game's difficulty when facing a hard level. No matter how popular their sentiment, their position if enacted would devalue the credential I've sought over the last three years. We would be denied legitimacy. The legal community would add an asterisk to our licenses and render California's 2020 graduates a Barry Bonds class with our every achievement marred by original sin and every mistake advertised as incompetence confirmed.

Diploma privilege if enacted would materially limit the class of 2020's credibility as California lawyers. Lawyers stomach the bar to compete on their own merits without stigma. The only way to preserve our standing is to preserve our industry's standards. 

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