Washington’s Emergency Diploma Privilege: A Practical Solution for Troubled Times

The Washington Supreme Court stands as a model for other courts to follow.  Recognizing the “extraordinary barriers” facing bar applicants this year, it recently issued an order allowing for licensure via diploma privilege as an option for graduates of ABA accredited law schools who are currently registered for either the July or September 2020 Washington bar examination. The order encompasses first time and repeat takers.  Examinees may still take the UBE if they want portable scores.

This order comes from the same court that recently wrote a powerful letter to the judiciary and legal community about our responsibility to recognize systemic issues that underlie and perpetuate racial injustice and to dismantle and disavow those systems.  As the justices noted:

“Too often in the legal profession, we feel bound by tradition and the way things have ‘always’ been.  We must remember that even the most venerable precedent must be struck down when it is incorrect and harmful”.

Numerous scholars have long argued that the existing bar exam, with its discriminatory impact, and its lack of relationship to skills needed for law practice, is a tradition that should be abandoned in favor of a licensing scheme that better measures minimum competence to practice law.

Scholars also have argued that we particularly need this year’s new lawyers because under-served communities have significantly increased pandemic-related legal needs and new lawyers disproportionately serve those needs.

As Dean Annette Clark wrote in an eloquent letter explaining why her faculty unanimously voted in favor of asking the Court to adopt a diploma privilege – this year is unlike any other.  This year, she writes, law graduates face pandemic-related health and financial issues  – issues that disproportionately impact communities of color.  This year, she notes, the murders of George Floyd, Ahmaud Arbery and Breonna Taylor, and the social unrest and calls to action that followed have affected graduates and have taken a particularly heavy emotional and mental toll on graduates of color.

This year, the mere act of taking the bar exam endangers examinees’ and their loved ones’ health– something states recognize because they are requiring examinees to sign waivers.  This year, graduates worry that after months of studying, public health issues may cause states to cancel the exam at the last minute.

While a pure diploma privilege may not be an appropriate long-term law licensing solution for most states, it is a practical solution given today’s world.   As Dean Clark states:

 “While requiring a bar exam for licensure is supported by long precedent, doing so now may be insupportable given the extraordinary circumstances these graduates are facing. The burdens of the coronavirus pandemic and the racial unrest we are experiencing are being disproportionately borne by our graduates of color as they struggle to prepare for the bar exam.  Removing the exam barrier to admission would be a step in responding to our graduates’ concerns and in bringing “greater racial justice to our system as a whole.”

Dean Clark’s  letter should be read in its entirety.  It sets forth strong arguments that should be presented to all state supreme courts with a request for re-consideration of the decision to hold a traditional bar exam this year.  It also lays the groundwork for why each state should establish a post-pandemic study group to evaluate whether the existing bar exam is the best way to determine admission to the bar.

Kudos to the Washington Supreme Court, as well as to the deans, faculty and students at the Washington law schools for their advocacy.  Their solution addresses problems faced by all of this year’s graduates while also addressing inequities that cannot be denied.

 

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