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Attorney General Responds to Partial Summary Judgment Motion in Diploma Privilege Suit

From WisBar InsideTrack:

Reminding the federal district court of the need to develop an evidentiary record in the constitutional challenge to Wisconsin's "diploma privilege," the state attorney general criticized the plaintiffs' motion for partial summary judgment and permanent injunctive relief as premature....

The attorney general criticized the plaintiffs for misunderstanding the rationale of the diploma privilege.

"Plaintiffs' contention that Wisconsin violates the Constitution by testing general legal principles on its bar exam is based on the erroneous presumption that only instruction in Wisconsin law justifies the diploma privilege," the attorney general wrote. "From this premise, plaintiffs ask the Court to reach the erroneous conclusion that the bar exam can only test Wisconsin law."

"The premise and the conclusion are wrong," the attorney general argued. "The diploma privilege is only extended to graduates who have completed a curriculum mandated by the Wisconsin Supreme Court, which includes instruction in particular legal subject areas, as well as in Wisconsin law, and whose completion of that curriculum has been certified by the deans of the University of Wisconsin or Marquette University law schools."

Accordingly, the attorney general said, the plaintiffs make a second erroneous assumption that all graduates of ABA-accredited law schools have received an identical education. No out-of-state law school is directed by the Wisconsin Supreme Court to certify that all of its graduates have successfully completed the curriculum set forth in the supreme court's rules. The attorney general informed the court of its intention to elaborate further on the curricular differences in the course of developing its evidentiary record....

The attorney general noted that in its remand order, the Seventh Circuit Court of Appeals remarked that the state prevails if the diploma privilege is found to be "at least minimally reasonable." This is because the state's power to regulate admission to the practice of law is subject only to "narrow" constitutional limitation, the attorney general asserted.

"'Minimally reasonable' is a low hurdle," the attorney general said. "The Justices' greater familiarity with graduates of Wisconsin law schools, their greater familiarity with the deans and faculty at these schools, their practical ability to ensure compliance with SCR 40.03's curriculum requirements at those schools, and their greater involvement in educational activities at those schools are alone sufficient to surmount it."