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FIRE objects after Wayne State Law School says students can’t criticize bar exam

Wayne State University

Can Wayne State University Law School students advocate for pandemic-related bar exam accommodations without being punished?

That’s the question FIRE asked Wayne State University Law School and the Michigan State Bar this week, after reports that an official law school email sent to recent graduates suggested students advocating for bar exam accommodations during COVID-19 might be risking their licensure in doing so.

Above the Law reported earlier this month that an unidentified member of Wayne State Law School’s administration emailed the graduating class after some of those students began advocating online for a “diploma privilege” option, in lieu of taking the Michigan State Bar exam. 

Diploma privilege — once employed widely in the U.S., but now only in the state of Wisconsin — allows qualifying graduates of an in-state law school to seek admission to the state bar without sitting for a bar exam. 

In light of COVID-19 and concerns about taking an in-person, multi-day examination, there has been renewed discussion nationwide of providing law students with “emergency diploma privilege.” Utah, Washington, and Oregon have approved such measures, and states like Minnesota and Texas have considered following suit.

The Wayne State email, however, suggested that students critical of Michigan’s decision not to offer diploma privilege at this time might jeopardize their ability to pass the “Character & Fitness” portion of their bar screening — in which State Bar officials consider whether an applicant has “the requisite character and fitness” to practice law. The published portion of the email read:

[W]hile you have every right to criticize the bar exam, the Board of Law Examiners, or the State Bar of Michigan online, it may not be a smart strategy for passing Character & Fitness with ease. 

This is an extremely frustrating and stressful time for everyone, and I understand wanting to air concerns and thoughts through the only means we have to socialize anymore – i.e., social media. But, please be careful of what you say and remember that your 2 comments – even if made on a completely private page – can still be easily copied and shared with others.

As we point out in our letter, this admonition is troubling for a number of reasons. 

First, we note that such a directive from a law school administrator, even if unfounded, will have a chilling effect on students’ discussions of matters of public health and policy that bear directly upon them.

Second, if the school’s warning does have some basis, it raises alarming implications about the status of Michigan law students’ First Amendment rights. As we wrote:

The State Bar of Michigan requires each applicant to obtain a letter from their law school certifying that there are “no facts reflected” within the “knowledge” of the law school that would “negate the conclusion” that the applicant has the “requisite character and fitness” to practice law. If it is the law school’s sincere belief that advocacy on diploma privilege is an issue that may be of concern to character and fitness examiners, it would presumably have a duty to describe that advocacy in response to an applicant’s certification request. 

However, as public institutions, Wayne State and the State Bar of Michigan are bound by the First Amendment to respect students’ expressive rights. Accordingly, the actions of the Law School and State Bar in ascertaining a student’s character and fitness must be consistent with the First Amendment. As the Supreme Court explained in holding unconstitutional questions about whether a bar applicant had ever been a member of the Communist Party, the First Amendment “prohibits a State from excluding a person from a profession or punishing him solely because he is a member of a particular political organization or because he holds certain beliefs.” That remains true whether the advocacy is, as in the aforementioned case, for the overthrow of the United States Government or merely for a waiver of the bar examination.

Contrary to the law school’s implication that debate over diploma privilege might violate professional standards, the State Bar application notes that the Character & Fitness inquiry is a limited one, and does not take into account applicants’ personal opinions. Moreover, the Michigan Rules of Professional Conduct for lawyers actually encourage advocacy intended to improve the legal profession and even the regulation of the bar itself:

As a public citizen, a lawyer should seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. . . . A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest. 

As we explained to Wayne State Law School, professional codes, such as the ones imposed on lawyers by the State Bar of Michigan and the Michigan Board of Law Examiners, may validly regulate professional conduct. They may not, however, be read so broadly as to provide public university administrators or bar officials carte blanche to deem expression on matters of public concern to be “unprofessional” and therefore a basis to deny certification or licensure. 

We have asked the law school — with copies sent to Wayne State’s president, the Michigan State Bar, and the Michigan Board of Bar Examiners — to clarify the status of its students’ expressive rights.

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