Diploma Privilege Urgently Needed as South Dakota’s Bar Exam Results Continue to Disappoint

In a recent opinion piece, Jessica Four Bear, a 2017 graduate of the USD School of Law and Juvenile Prosecutor for the Cheyenne River Sioux Tribe, discusses the concerning decline in the passage rate of South Dakota Bar Applicants. According to Four Bear, the passage rates have significantly dropped in recent years, with only 39% of USD Law graduates in the class of 2016 passing the bar exam. Despite assurances from Law School Dean Neil Fulton, there has been little improvement, and the licensure rate of South Dakota attorneys actually declined in 2023.

The article emphasizes the impact of this declining passage rate on the availability of legal services in South Dakota. Critical attorney positions, particularly in public defender offices, state attorneys’ offices, and rural areas, including Indian country, remain unfilled. This shortage of attorneys disproportionately affects low-income and marginalized communities, further exacerbating existing inequalities.

Four Bear points out that prior to the 2015 changes implemented by the Board of Bar Examiners, USD Law School consistently achieved bar passage rates of 90-100%. She also mentions the historical success of the “diploma privilege” in South Dakota, which allowed graduates to be licensed provided they met the fitness requirement. However, the enhanced scoring requirement introduced in 2015 has had a detrimental effect on legal services delivery in rural areas, hampering efforts to address the attorney shortage.

The article concludes by referencing Chief Justice Steven Jensen’s State of the Judiciary message, where he suggested that the reduced licensure rate was no longer an issue in South Dakota. However, the results of the July Bar Exam indicate otherwise, highlighting the ongoing challenges faced by law graduates in passing the bar exam.

In closing, it’s worth considering alternative pathways like diploma privilege for new law graduates. Diploma privilege, a practice that was previously in place in South Dakota, ensured a 100% licensure rate for applicants who met the fitness requirement. Exploring such alternative pathways could potentially address the attorney shortage and improve access to legal services for underserved communities in South Dakota.