Appeal from the United States District Court for the Western District of Wisconsin. No. 07-cv-211-bbc-Barbara B. Crabb, Chief Judge.
The opinion of the court was delivered by: Posner, Circuit Judge.
Before POSNER, RIPPLE, and WOOD, Circuit Judges.
Wisconsin allows graduates of the two law schools in the state (Marquette University Law School and the University of Wisconsin Law School at Madison) to be admitted to practice law in Wisconsin without taking the Wisconsin bar exam. The plaintiffs, and the class they represent (which has been certified), are graduates of accredited out-of-state law schools who want to practice law in Wisconsin. They have sued members of the Wisconsin Board of Bar Examiners and the Supreme Court of Wisconsin, charging a violation of the commerce clause of Article I of the Constitution and seeking injunctive relief. They argue that the "diploma privilege" discriminates against graduates of out-of-state law schools who would like to practice law in Wisconsin. They appeal from the district court's grant of the defendants' motion to dismiss the suit for failure to state a claim.
Graduates of accredited law schools in states other than Wisconsin who would like to practice law in that state are at a disadvantage vis-à-vis graduates of Wisconsin's two law schools, because, unlike those graduates, to be admitted to the Wisconsin bar they have either to have practiced law for five years in another state or to have passed the Wisconsin bar exam. The amount of preparation required for taking the bar exam with a good chance of passing it is significant, and, for applicants who prudently enroll in a bar-review course, also costly. The ever-present risk of failing the bar exam and having therefore to retake it (perhaps repeatedly) imposes a further, contingent cost in time, money, and reputation. Such applicants also pay a higher fee for admission to the bar. And having to take the bar exam delays their admission to the bar (though not for as long as having to practice for five years in another state). It comes as no surprise that more than two-thirds of the lawyers in Wisconsin never took the Wisconsin bar exam, though an unknown number were excused from having to take it because, rather than graduating from a Wisconsin law school, they had practiced law for at least five years in another state-in exile, as it were, from Wisconsin.
The defendants concede these points but argue that as a qualification for practice in the state the study of law in a Wisconsin law school is a reasonable substitute for passing the bar exam or for having practiced law for a significant period of time in another state. They also argue that the plaintiffs lack standing to sue because the only relief they seek is an injunction against three words in the rule of the Wisconsin Supreme Court that confers the diploma privilege on the graduates of the in-state law schools. We begin our consideration with that argument.
The rule provides, so far as bears on this case, that an applicant who has been awarded a first professional degree in law from a law school in this state that is fully, not provisionally, approved by the American bar association shall satisfy the legal competence requirement by presenting to the clerk certification of the board showing:
(1) Satisfactory completion of legal studies leading to the first professional degree in law. The law school shall certify to the board satisfactory completion of not less than 84 semester credits earned by the applicant for purposes of the degree awarded.
(2) Satisfactory completion of study in mandatory and elective subject matter areas. The law school shall certify to the board satisfactory completion of not less than 60 semester credits in the mandatory and elective subject matter areas as provided in (a) and (b). All semester credits so certified shall have been earned in regular law school courses having as their primary and direct purpose the study of rules and principles of substantive and procedural law as they may arise in the courts and administrative agencies of the United States and this state.
Wis. S.Ct. R. 40.03 (emphasis added). Subsections (a) and (b), to which Rule 40.03(2) refers, list standard law school courses. The rule makes no reference to Wisconsin law, and none of the listed course names has "Wisconsin" or any cognate in it.
The defendants argue that because all that the plaintiffs want by way of a judgment is an order expunging the three words that we have italicized, they would still be bound by subsection (2) and they have not contended that they satisfy its requirements. But the defendants err in assuming that the last sentence in subsection (2) ("All semester credits so certified shall have been earned in regular law school courses having as their primary and direct purpose the study of rules and principles of substantive and procedural law as they may arise in the courts and administrative agencies of the United States and this state") requires the study of Wisconsin law, or that the law schools that the plaintiffs and the members of their class have attended have less rigorous requirements than those imposed by the subsection. Indeed, so far as appears, every class member could establish that his or her law school studies conformed to the requirements set forth in the rule except that the law school was in another state. Anyway the requirements of subsection (2) are applicable only to graduates of Wisconsin law schools, as the defendants concede and as is plain both from the wording of the rule (in particular the words "the law school") and from Wis. S.Ct. R. 40.02, which sets forth the qualifications for admission to practice in Wisconsin, including those applicable to persons who do not qualify for the diploma privilege. And this is further shown by Rule 40.02(2).
But the plaintiffs cannot be right that the Constitution requires Wisconsin to extend the diploma privilege to all graduates of any accredited law school in the United States, which would be the effect of just striking the three words. They overlook the fact that unequal treatment can be eliminated without conferring any benefit on the plaintiff that challenged it. If the diploma privilege is invalidated and in response Wisconsin requires all applicants for membership in the Wisconsin bar either to take the Wisconsin bar exam or to have practiced for five years in another state, the plaintiffs will be in the same position they're in now. Leveling down is a permissible form of compliance with a command to end unequal treatment. Iowa-Des Moines National Bank v. Bennett, 284 U.S. 239, 247 (1931) (Brandeis, J.); see also Heckler v. Mathews, 465 U.S. 728, 739-40 (1984); Palmer v. Thompson, 403 U.S. 217, 218 (1971).
But we do not know what exactly Wisconsin would do to comply with a ruling invalidating the diploma privi lege. It might require all applicants (or perhaps all applicants who had not practiced for a period of time in another state) to take a continuing legal education course in Wisconsin law in lieu of a bar exam. (Some states impose such requirements, though not in lieu of a bar exam.) That would give the plaintiffs most of the relief they seek. We cannot say that the probability of such a mode of compliance is so slight that the plaintiffs cannot show that they have anything to gain from winning their suit and so cannot be permitted to maintain it. MainStreet Organization of Realtors v. Calumet City, 505 F.3d 742, 744 (7th Cir. 2007); National Wildlife Federation v. FERC, 801 F.2d 1505, 1506 n. 1 (9th Cir. 1986); cf. Pennell v. City of San Jose, 485 U.S. 1, 6-8 (1988). A former president of the Wisconsin Bar Association, an opponent of the diploma privilege, has been quoted as saying that "he has no 'preconceived view' as to whether Wisconsin should abolish the diploma privilege altogether or extend it to all graduates of ABA accredited law schools nationwide." Mark Hansen, "Wisconsin Bar Weighs a Degree of Change," ABA Journal, April 2007, www.abajournal.com/ magazine/wisconsin_bar_weighs_a_degree_of_change/ (visited June 13, 2009).
We said in MainStreet Organization of Realtors v. Calumet City, supra, 505 F.3d at 744, that "as long as there is some nonnegligible, nontheoretical, probability of harm that the plaintiff's suit if successful would redress . . . , the fact that a loss or other harm on which a suit is based is probabilistic rather than certain does not defeat standing." This is confirmed by the Supreme Court's ruling in Northeastern Florida Chapter of Associated General Contractors of America v. City of Jacksonville,508 U.S. 656, 664-66 (1993), that the loss of an opportunity to compete for a position (for example because of discrimination) is injury enough to support standing; there is no need to show that the applicant would have won the competition for the position, provided that he had a "realistic chance" of winning. Nor-West Cable Communications ...