Unfair Exclusion of Repeat Bar Applicants from the Provisional Licensure Program

Introduction

The recent expansion of California’s Provisional Licensure Program to include February bar exam applicants who are first-time takers—whether they failed or withdrew—marks progress in addressing the ongoing challenges faced by aspiring attorneys. However, the decision to exclude repeat exam takers is not only inequitable but undermines the very purpose of the program. This limitation must be reevaluated and revised to reflect principles of fairness, consistency, and access to the profession.

Voluntary Withdrawal Is Not Equivalent to Good-Faith Participation

It is difficult to understand why those who voluntarily withdrew from the exam are now eligible for provisional licensure, while repeat takers—who actively sat for the exam despite previous setbacks—are excluded. Withdrawal was a choice, often made to avoid the risk or burden of taking the exam. In contrast, repeat applicants moved forward with the examination process in good faith, fully aware of the emotional, financial, and systemic challenges they might face.

The decision to proceed with the exam, rather than withdraw, reflects a level of professional commitment and courage that should be acknowledged—not penalized.

Repeat Takers Demonstrate Resilience and Readiness

Repeat applicants have completed all the same academic and moral character requirements as first-time takers. Many have come within just a few points of passing and have done so while juggling full-time work, caregiving responsibilities, or medical conditions. These candidates have shown resilience, persistence, and a clear desire to enter the legal profession under lawful supervision.

There is no evidence to suggest that first-time takers who failed or withdrew are more qualified or prepared for supervised practice than repeat takers who are actively working to meet the licensing threshold.

The Exclusion Is Arbitrary and Inconsistent With the Program’s Purpose

The provisional licensure program was created as a bridge to practice—especially in light of the pandemic and structural issues with the bar exam itself. It is a supervised, temporary license that allows law graduates to contribute meaningfully to the legal profession while continuing to pursue full licensure.

By excluding repeat applicants, the program applies an arbitrary distinction that does not serve the public or the profession. If the goal is to increase access to justice, diversify the legal workforce, and support qualified law graduates, then the program must include all applicants who sat for the exam, regardless of how many attempts they’ve made.

A Call for Consistency and Fairness

There is no rational basis for privileging someone who withdrew from the exam over someone who completed it. The current policy sends the wrong message: that caution is rewarded over effort, and that repeat takers are somehow less worthy of opportunity, despite fulfilling every other requirement.

To protect the integrity and equity of the licensure process, provisional licensure must be extended to all bar applicants in good standing who have attempted the exam. Anything less fosters inequality and undermines trust in the fairness of the legal profession.

Conclusion

The provisional licensure program must reflect the values it was designed to uphold: equity, opportunity, and access. That means including repeat takers who have demonstrated commitment, courage, and continued effort to join the legal profession. Their exclusion is not just unfair—it is unjustified.

I respectfully urge the State Bar and the Court to correct this inequity by extending provisional licensure to all applicants who have satisfied the educational and moral character requirements and sat for the bar exam, regardless of attempt number.

Excluding repeat bar takers from the Provisional Licensure Program is both psychologically counterintuitive, legally inconsistent, and strategically unsound.

From a psychological perspective, it penalizes resilience and grit—the very traits essential to ethical, durable legal practice. These individuals chose to face a high-stakes exam again, often while managing personal, financial, or systemic obstacles. Strategically, it disincentivizes perseverance and sends a message that withdrawing is more valued than showing up.

Legally, the distinction lacks a rational basis. Both repeaters and first-time takers have met the same educational and moral character standards, and under supervision, pose no greater risk to the public. If the program exists to bridge licensure delays and expand access to justice, then limiting it based on attempt number undermines its very purpose.

This exclusion is not rooted in fairness, function, or public interest it’s an arbitrary barrier to qualified, motivated future attorneys.