Wisconsin Lawyer
Vol. 79, No. 11, November 2006

Separate But Equal in Wisconsin

by Steve Levine

It's been more than 50 years since the U.S. Supreme Court overturned the doctrine of "separate but equal" - the Apartheid-like doctrine that relegated African Americans to inferior education, public accommodations, and other important aspects of life. I thought long and hard about using that expression to describe Wisconsin's bar admission system, because the degree of discrimination in this state's requirements for admission to practice law pales in comparison to what Blacks endured under "Separate but Equal." To use the expression to describe anything less denigrates the ordeal African Americans went through in a shameful chapter of American history.

But I decided to use it anyway, because it may be the only way to shock U.W. and Marquette University Law School graduates from their complacency into the realization that Wisconsin's in-state-only diploma privilege is a discriminatory "separate but equal" system. Under our current diploma privilege, U.W. and Marquette law graduates are whisked into the practice of law without having to pass a bar exam. Meanwhile, graduates of accredited law schools outside Wisconsin who take the same courses as their in-state counterparts must endure the time, expense, and anxiety of the bar exam process and then compete in the job market with a three- to four-month handicap.

While the diploma privilege's discrimination is not based on race, it is based on the irrational basis of which law school a bar applicant attended. It's time to end Wisconsin's discriminatory diploma privilege. There should be a single bar admission requirement for every new graduate of an accredited law school: Either the diploma privilege should be available to everyone regardless of law school attended, or everyone should be required to pass the Wisconsin bar exam. It's time to end the Wisconsin legal system's version of "separate but equal."

I wrote an article, which appeared in the December 2002 Wisconsin Lawyer, describing the history of Wisconsin's diploma privilege and advocating an end to the bar exam. I don't want to repeat that in detail here. It suffices to note that the original purpose of the privilege, when it was instituted in the 1870s, was to encourage lawyers-to-be to attend law school rather than merely "read law" and then pass a bar exam. The diploma privilege has outlived that purpose. For a brief period the Wisconsin diploma privilege was extended to graduates of all law schools, wherever located. But by the time Marquette University Law School began operation, the privilege again was limited to U.W. graduates only. This set off a bitter Marquette-U.W. rivalry in which Marquette first sought repeal of the privilege, then successfully worked for its expansion. Once the privilege was extended to Marquette graduates in 1933, the privilege didn't seem so unfair anymore.

Is the concept of equal bar admission requirements for everyone so radical an idea? I hope not. The entire basis of our legal system is to treat all persons equally and fairly. I hope that the U.W. Law School, which prides itself on creative programs to make the legal system fair for everyone, doesn't forget that concept when it comes to bar admission requirements. And I hope that the Marquette University Law School remembers that the university's Jesuit principles apply to all aspects of life, including - yes - even bar admission requirements. I seem to remember something in the Bible about treating others the way you would like to be treated. (Yes, it was devilish of me to play the religion card, but I couldn't resist the temptation.)

In August, I appointed a committee to study this issue - with representation of all viewpoints, including those of the in-state law schools. I have no preconceived view as to which system would be better - bar exam for everyone or diploma privilege for everyone. With Wisconsin being the last diploma privilege state, the trend nationally is obviously toward the bar exam. (However, last year New Hampshire began a limited diploma privilege for 25 students enrolled in a rigorous honors program at its law school.) On the other hand, most lawyers who have passed a bar exam will tell you that the exam bears little if any relationship to a lawyer's ability to practice law. Which system to recommend - bar exam or diploma privilege - should be left to the committee.

But whatever the recommendation, there should be one set of bar admission requirements for every new law school graduate. The words engraved over the entrance to the U.S. Supreme Court read: "Equal Justice Under Law." They don't say, "Special Privilege for Some." It's time to end "separate but equal" in Wisconsin's bar admission system.

P.S. While Wisconsin's diploma privilege is certainly the elephant in the living room with respect to bar admission discrimination, there also are other aspects of the system, such as reciprocity rules, that I believe are mean-spirited, unfair, and unconstitutional. If you have a reciprocity horror story to relate or know of anyone now having problems with reciprocity admission, please contact me so these problems can be catalogued.

Please feel free to comment directly to me at steven.levine@charter.net.

Wisconsin Lawyer