On June 12, 2020, the state of Washington announced a limited diploma privilege policy encouraging any applicant with a degree from an ABA-accredited law school to skip the bar exam unless they really wanted to take the test for reciprocity purposes. At the time, the seven-day rolling average of new cases in the state sat at 261 and the daily death toll average was 9. Today, the new case average is 1,642 and the death toll is 28, and yet the state seems to have no interest in extending its emergency diploma privilege policy for the February exam despite entreaties from law graduates and law school deans.
As mind-boggling as it may be to walk back a policy after conditions have gotten significantly worse, Washington throws another curveball of garbage at applicants by adopting a remote exam procedure despite watching the remote exam become an existential nightmare of racist profiling and being forced into horrible indignities by draconian proctoring policies. If you have an opportunity to make applicants urinate on themselves, you simply have to take it!
Even if conditions had improved since the fall, locking February’s examinees out of the policy that applied to their peers doesn’t make any sense. It’s almost as if the Washington State Bar Association decided the traditionally smaller pool of February applicants and the fact that many are repeat-takers (presumably an even smaller population given diploma privilege applying to 2020 grads) meant that this cohort didn’t deserve the same accommodations as the last group. This, of course, denies reality. As UW Law School’s Dean Mario Barnes wrote:
It is also the case that for legitimate health and other reasons, some spring graduates who applied for the July 2020 examination deferred their applications to February 2021. A number of these applicants have expressed a feeling of being arbitrarily excluded from the privilege, which was provided to applicants who made similar decisions but deferred to September.
This is the exact same population of graduates and they should be treated the same. It feels as if the state is just inviting the added frustration of the remote exam for no reason. Indeed, if one were to accept the premise that February’s exam will be more sparsely attended than prior administrations then that’s all the more reason to ditch the remote exam and opt for an in-person option taking advantage of aggressive distancing. Because as Seattle University Law’s Dean Annette Clark put it:
In addition, a remotely administered exam introduces additional problems and complexities. As evidence of this, I attach a survey we conducted in late October of our Seattle U Law December graduates, in which 10 respondents expressed a preference for an in-person exam, 5 respondents expressed a preference for a remote exam, 2 respondents expressed no preference, and most favored a diploma privilege option. In my view, what these survey results reveal is that a majority of these students are so concerned about having to take the exam remotely from their own homes, with worries about attendant disruptions, internet outages/instability, and being flagged by the AI remote proctoring, that they would choose the dangers inherent in taking an in-person during the pandemic over taking a remote exam. The survey results and comments also illustrate how differently situated our students are in their home environments, which adds another level of inequity to this situation. Given these differences (which very likely fall out along racial and socioeconomic lines), it is our view that if a diploma privilege option is not granted, the WSBA should be required to lobby and seek permission from the NCBE to be able to offer individual registrants the choice between taking the UBE in-person or remotely.
But make no mistake that while an in-person exam would be more welcome than a remote one, there’s no reason to choose between these regrettable options. The state just awarded diploma privilege to a huge number of graduates and literally nothing has changed to suggest that isn’t just as acceptable now. A letter signed by over 300 recent or soon-to-be recent graduates captures the ultimate futility of the bar exam:
Students before us have outlined facts about why the bar exam is harmful. It is racist and ableist. A remote bar exam abounds with concerns regarding privacy and access to technology. On a core level, the bar exam does not prepare you to practice law. We would not entrust someone to represent us if they said the only thing they had done in preparation was take the bar. The practice of law is about experience and knowledge in specialized fields, in which we are all eager to immerse ourselves. Further, client feedback rarely centers a lawyer’s passage of the bar or knowledge about a wide array of law unrelated to their field. Most people are primarily concerned with their lawyer’s ability to communicate in a transparent and supportive way. We commit to honoring those practices in our future representation.
We’ve said this a bunch over the past year, but states aren’t in the business of offering the “best” bar exam, they’re in the business of licensing professionals. If the bar exam was the best way to do that, then so be it, but we’ve seen diploma privilege work for years and we’ve seen lawyers pass the bar exam and run massive client frauds. A robust reevaluation of licensure should dominate professional discussions for the next few years.
But in the meantime, there’s zero reason to ram a test down the throats of graduates who would’ve been waived in a mere six months ago… when public health conditions were better.
Earlier: Washington Grants Diploma Privilege To Graduates Of ABA Accredited Schools
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
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