In the months between graduation and the July bar exam, hopeful South Carolina attorneys are wearing masks to take practice tests.
Worried about the likelihood of coronavirus transmission during the two-day test beginning July 28, more than 150 current and soon-to-be attorneys have asked the state Supreme Court to consider waiving the testing requirement for them to begin working in law.
It's a national conversation for a profession that requires state-specific examinations before attorneys can practice in all but two states.
Some candidates are living without insurance between graduation and employment, and will begin making student loan payments in the fall. They're eager to begin work, but wary of spreading the virus during in-person testing.
Safety measures
The Palmetto State has instituted social distancing requirements and will allow registrants to transfer their appointment to February without extra fees.
The two-day test will be spread out across more than 69,000 square feet at the Columbia Convention Center and the State Fairgrounds, and the court assured applicants that the desks would be 6 feet apart. Proctors will wear masks and provide sanitation materials so that each sitter can clean their work area before leaving, according to a July 2 order from the state Supreme Court.
The rest of the precautions fall on the applicants, who can be rejected or disbarred for failing to comply.
Some measures, such as a mask requirement throughout the building and using provided hand sanitizer, match demands made by bar in other states.
But restrictions on applicants for the weeks leading up to the exam will prevent some from regular work and usual transportation. They're asked to avoid public transportation and gatherings, as well as any non-essential errands like some shopping. They’re even asked to avoid contact with other members of their household “to the maximum extent possible.”
Anyone who exhibits symptoms at the testing site will be removed, and could be banned from the South Carolina Bar for up to five years. There's no recourse for anyone who gets sick after sitting the exam. By showing up, sitters would waive their right to hold the administration responsible for illness or death.
The letter
A group of new graduates, including one awaiting COVID-19 test results, wrote the letter June 25, before the court confirmed its plan to proceed with the in-person bar exam in July.
If the exam can't be administered safely, they ask the court to consider a route that just two states had allowed before the pandemic: diploma privilege, allowing lawyers to be admitted to the bar without an exam.
"(Diploma privilege is) the most viable means to ensure that all recent graduates will have the ability to provide for themselves and their loved ones, regardless of their membership in a vulnerable population," the letter said in closing.
More than 150 future and current attorneys had signed onto the letter by the time it was sent. The court decided to treat it as a petition, and assigned the letter a case number.
Larry Cunningham, dean of the Charleston School of Law, wrote a separate letter to the court, asking to consider graduates' employment needs and look to the state's two law schools for help navigating a safe and secure testing environment, and look to alternatives that other states have adopted, especially emergency diploma privilege.
A matter of course
Diploma privilege was the norm in South Carolina until 1948. University of South Carolina had refused to integrate its law school, leading S.C. State University to establish a program for Black students. Two 1950 graduates of that school were granted diploma privilege, but by 1951 all law school graduates had to pass the exam.
A legislator wrote to his colleague that the requirement would "bar Negroes and some undesirable whites" from practicing in the state, according to Dr. William Hine, who taught history at S.C. State for decades. The low number of Black graduates who passed the test after studying in an underfunded school with a scant library proved him correct.
"Exams were always a resource for the white community. ... The people who prepared those exams were complicit," Hine said. "There was no question that race was the principal factor."
One of the first Black lawyers to pass the test, Matthew Perry, went on to play a key role in desegregating schools across the state, including USC.
"I think this is the appropriate political climate to assess why we even need it in the first place," USC graduate Hope Demer said. "And this administration more than other administrations does test our access to resources and not just our minimal competency."
A national conversation
What to do about the exam has become a national conundrum for a legal system that already required graduates to strategize their approach to the bar. Each state has a different system, and bar status is transferable between some states but not others.
Even in the best of years, many hopeful attorneys find themselves traveling across state lines to take the exam they expect will allow them to start a career immediately, while offering flexibility to move to or work in other states.
For every departure a state makes from the national norm, its applicants sacrifice flexibility. Whereas the South Carolina Bar would allow attorneys to practice in other states that accept the Uniform Bar Examination, online-only tests and diploma privilege will apply only to the states that grants it.
Since the mid-century push for bar examinations across the nation, New Hampshire and Wisconsin have implemented programs for in-state graduates to practice without taking the bar. Both require additional training and safeguards.
Some states are continuing their exams as scheduled, with extra measures like more spaced-out exam rooms or mask requirements. That allows graduates to continue their plans to find and begin legal jobs, but leaves those who can't risk exposure to wait for the next round of tests in February.
Some states with infection rates expected to decrease are still holding in-person tests but postponing them until the fall in hopes that infection rates will be lower by then. Test-takers there contend with unexpected months of unemployment, as well as the risk of increased infection rates in the fall, when DHEC expects South Carolina's ongoing cases to rise from around 2,500 to more than 3,100.
Immediate need
Mackenzie Pearson can't afford to wait eight months before beginning her job at a private practice, she said. The USC graduate is isolating to keep herself healthy enough to study full-time, she said, and hasn't seen her family — including two siblings who fell ill — in more than a month.
"No one knows what's best," Pearson said. "But we as attorneys have been taught to question things we don't think are right."
Even the students who aren't pleased with the decision are grateful for a concrete plan, according to Dyann Margolis, assistant dean for academic and bar success at Charleston School of Law. Her students been studying 40 to 50 hours a week since May, and they are now taking practice tests in isolated rooms and helping each other virtually over Zoom.
"It creates this catch-22 where many of our graduates need to pass the bar to get their jobs, (but) many students have had their ability to study compromised," USC professor Colin Miller said. "They're in a state of limbo."