Wisconsin occupies an unusual place in American legal education. Graduates of the University of Wisconsin Law School and Marquette University Law School who satisfy Wisconsin’s requirements may qualify for admission to the Wisconsin bar through diploma privilege, without taking the traditional Wisconsin bar examination.

I believe that system deserves renewed public scrutiny.

My purpose is not to attack individual attorneys, law students, UW–Madison, Marquette University, or graduates who relied upon the rules available to them. The question is institutional: Should the State of Wisconsin continue maintaining two substantially different pathways into the same licensed profession based largely upon where an applicant earned a law degree?

What Is Diploma Privilege?

Wisconsin Supreme Court Rule 40.03 establishes Wisconsin’s diploma-privilege pathway. The University of Wisconsin Law School explains that qualifying graduates may be admitted to practice law in Wisconsin without taking a bar examination, provided they satisfy specified academic and character-and-fitness requirements.

That privilege is not generally available to someone who earns a J.D. from another ABA-accredited law school.

An otherwise qualified graduate from an out-of-state institution may therefore face an examination requirement that a qualifying Wisconsin law-school graduate does not.

That distinction raises a legitimate public-policy question:

What governmental purpose justifies maintaining the distinction today?

This Debate Has Happened Before

This is not a new question.

In 2009, Wisconsin lawyers petitioned the Wisconsin Supreme Court concerning diploma privilege. Petition 09-09 proposed alternatives that included extending diploma privilege to graduates of other ABA-approved law schools or repealing Wisconsin’s diploma-privilege rule.

The Wisconsin Supreme Court considered the matter and ultimately declined to change the system.

That history is important.

Anyone seeking reform today should not pretend the earlier proceeding never occurred. A serious challenge should instead begin there: study the arguments presented in 2009–2010, determine why they were unsuccessful, and ask what legal, educational, economic, or factual circumstances have changed since then.

Rule Reform or Constitutional Litigation?

There are at least two fundamentally different ways to approach the issue.

The first is rule reform.

Because attorney admission is governed by the Wisconsin Supreme Court’s rules, advocates could petition the Wisconsin Supreme Court to reconsider SCR 40.03. Such a petition could ask the Court to abolish diploma privilege, substantially modify it, or consider extending comparable treatment to graduates of other qualifying law schools.

The second approach is constitutional litigation.

That path is considerably more complicated.

A person cannot successfully sue merely because they disagree with a government policy. A plaintiff would need to establish standing, identify an actual or sufficiently imminent injury, identify the governmental actors legally responsible for the challenged system, establish jurisdiction, overcome applicable immunity doctrines, and articulate a viable constitutional claim.

Those questions have to come before the rhetoric.

The Equal-Protection Question

One issue I intend to research is whether Wisconsin’s different routes to bar admission can support a viable Equal Protection challenge.

The basic comparison is straightforward:

Applicant A: graduates from a qualifying Wisconsin law school, completes the required coursework and satisfies the other applicable requirements.

Applicant B: graduates from another qualifying ABA-accredited law school and seeks admission to practice the same profession in Wisconsin.

Wisconsin may require Applicant B to complete an examination that Applicant A can avoid through diploma privilege.

That does not automatically make the distinction unconstitutional. Governments routinely create classifications that survive constitutional review.

The serious legal question is whether Wisconsin has an adequate constitutional justification for this particular distinction and whether existing precedent forecloses or limits such a challenge.

That requires research rather than assumption.

Why I Would Not Begin With the UW Board of Regents

My initial instinct was to ask whether the president of the University of Wisconsin Board of Regents should be the first institutional contact.

After examining how diploma privilege operates, I believe that starts in the wrong place.

UW–Madison participates in the system, but the ultimate authority governing admission to the Wisconsin bar rests with the Wisconsin Supreme Court and its attorney-admission rules.

The Supreme Court therefore belongs at the center of any serious investigation into reforming SCR 40.03.

That does not mean the universities, Legislature, Board of Bar Examiners, practicing attorneys, students, or the public are irrelevant. Their perspectives could become important parts of the factual and policy record.

But the institution granting admission to the practice of law must be distinguished from institutions providing legal education.

Abolish It—or Expand It?

Research also creates an uncomfortable but necessary question for my original position.

If unequal treatment is the problem, abolition isn’t necessarily the only remedy.

Wisconsin could theoretically eliminate diploma privilege and require everyone to take a bar examination.

Alternatively, Wisconsin could examine whether diploma privilege should be expanded to graduates of other ABA-accredited institutions who satisfy equivalent educational requirements.

Those alternatives produce very different policy outcomes.

One takes an existing benefit away from Wisconsin graduates.

The other asks whether similarly qualified graduates should receive greater access to it.

A credible reform project should examine both.

Journalism Before Litigation

This is where my Journalism eDiscovery approach becomes useful.

Before turning a policy disagreement into a lawsuit, I want to build the documentary record.

That means examining SCR Chapter 40, Petition 09-09, Wisconsin Supreme Court proceedings, historical explanations for diploma privilege, Board of Bar Examiners materials, relevant constitutional precedent, accreditation requirements, admission statistics, and the arguments supporting and opposing the present system.

The evidence should determine the theory—not the other way around.

My working hypothesis may ultimately prove correct, partially correct, or legally unsustainable. Investigative journalism requires leaving room for all three possibilities.

The Question for Wisconsin

Diploma privilege should not escape scrutiny merely because it is longstanding.

Nor should it be condemned merely because Wisconsin is different from other states.

The better question is much simpler:

If Wisconsin were designing its attorney-licensing system from scratch today, would it create this same distinction?

If the answer is yes, the State should be able to explain why.

If the answer is no, Wisconsin should reconsider the rule.

And if the distinction creates a constitutional problem for an individual who actually encounters it, then the courthouse—not merely the classroom—may eventually become the appropriate place to resolve that question.

For now, my first step is not filing a lawsuit.

It is building the record.

Research the rule. Study the previous challenge. Identify the governmental justification. Determine standing. Then decide whether the proper instrument is journalism, a Wisconsin Supreme Court rule petition, constitutional litigation—or some combination of the three.

###JPP