How We Got Here
The first call for diploma privilege in Washington, D.C. went out on April 6, 2020, when 217 law students, joined by 18 of their professors, wrote to the D.C. Committee on Admissions, pleading for the Committee to protect their lives from the rapidly worsening COVID-19 pandemic. A week earlier, New York had announced that it would postpone the bar exam to an unknown date. Frightened by the dual risks of COVID-19 and an indefinitely postponed bar exam—and with it, indefinitely postponed lives and careers—the law students requested diploma privilege, or any option that would permit their timely admission to the bar. Diploma privilege, the traditional method of bar admission in D.C. and 35 states, still regularly practiced in Wisconsin, would have guaranteed that all law school graduates have the opportunity to work.
The D.C. Court of Appeals responded on April 10, announcing that the regularly scheduled July bar exam would be canceled. A month later, on May 4, the Court announced that the bar exam would be held in-person, in September, merely delaying the inevitable choice between life and livelihood.
As more bar exams across the country canceled in response to the mounting pandemic, a massive number of law school graduates applied for the September exam in D.C., at the time expected to be a Uniform Bar Exam (UBE), which typically produces scores that can be transferred for admission in 35 different jurisdictions. Because of the massive influx of applicants, the Committee on Admissions closed the application in less than a day.
So, on June 10, months after the students—by then, graduates—first sought diploma privilege, the Court ordered that the D.C. bar exam be held online, in October.
Problems with the Online Exam
It is true that an online exam may be sufficient to protect the public health. D.C.’s decision is, in that respect, superior to most other jurisdictions’. However, flaws in D.C.’s decision have become increasingly apparent. The postponement to October delays admission by months, putting law school graduates’ lives on hold and preventing them from rendering critical legal services as the COVID-19 pandemic continues to exacerbate gross inequities and injustices in our society. The lengthy delay will make it challenging to timely register and prepare for the regularly scheduled February exam if an examinee needs to retake the exam, which may be necessary for medical, technical, or other practical reasons entirely beyond the examinee’s control. The untested, online nature of the exam also raises further doubt as to its efficacy.
The bar exam, designed as a weapon of racism, is ordinarily a dubious measure of attorney competency. It’s flunked some of the nation’s leading lawyers, from Hillary Clinton, former First Lady, Senator, and Secretary of State, to Jerry Brown, former California attorney general and governor, to Kathleen Sullivan, former dean of Stanford Law School and name partner at Quinn Emanuel. At the same time, it has sanctioned a vast and ever-growing universe of legal malpractice. Even in the best of times, the bar exam is classist and racist, and its most prominent apologists—those who profit from exam while personally benefiting from Wisconsin’s diploma privilege—know this.
An online bar exam will only be worse. 2020 is an unprecedented year. We are facing a global pandemic which has already claimed the lives of far too many, an economic crisis with record unemployment, and a too-long-awaited reckoning with racism, America’s original sin. Amidst all the upheaval, which has overwhelmingly fallen on the economically disadvantaged and people of color, far too many jurisdictions seek to cling to their outmoded, ineffective, and discriminatory ways.
The online bar exam is not eligible as a UBE, preventing examinees from transferring their scores to other jurisdictions and practicing law outside of the single city of Washington, D.C. The practical effect on the lives and careers of new lawyers, and their ability to best serve their clients, will be substantial.
The reason the online exam is ineligible as a UBE is even more troubling. The creator of the exam, the National Conference of Bar Examiners (NCBE), has already admitted to concern over “psychometric issues, exam security, and the testing environment.” Hence, even in the face of the COVID-19 pandemic and practically all public health guidance, the NCBE has continued to “strongly advocate” for an in-person exam. Though we share the concern of the NCBE that its test will be ineffective, we do not advocate for endangering the public health.
An online exam poses distinct technical challenges for examinees. It requires examinees to furnish not only a computer, but a good, reliable internet connection and an appropriate testing environment. No examinee has total control over her internet and electrical connections. The specter of uncontrollable technical difficulties weighs heavily on the minds of many.
Economically disadvantaged examinees—of which there are increasingly many as the economic crisis continues and the bar continues to deny them the opportunity to work—would be placed at an even greater disadvantage. Many live in crowded, noisy, and distracting environments, with limited or poor access to technology and the internet. The practical challenges associated with an online bar exam thus fall disproportionately on the poor.
Many examinees have experienced or will soon experience housing insecurity. With a significant portion of the country facing eviction, now is not the time to suspend people from work for months, until they can take a test at home. Moreover, many recent graduates, especially poorer graduates, were displaced as COVID-19 advanced and law schools closed. Some have been marooned far from D.C. Those in distant time zones may be forced to take the exam in the middle of the night.
The only way to meaningfully ensure exam security may be to require examinees to constantly record themselves while taking them exam, and even this measure may be inadequate to fully ensure security. However, constant video surveillance of examinees in their own homes, perhaps even their own bedrooms, is untenably invasive. Exam security concerns might also preclude examinees from normal exam behavior, like taking bathroom breaks when they choose. This burdens all examinees, who might have little control over when they need to use the restroom, especially if they become ill—hardly an unimaginable prospect during a global pandemic. But it most severely harms those examinees who live with medical conditions or disabilities that require them to use the bathroom frequently.
And, critically, because the online exam has not been subjected to the same psychometric validation as the ordinary bar exam, the potential for it to be ineffective and discriminatory is greater than ever.
A Call to Action
With the nationwide movement for diploma privilege gaining steam, on June 26, Vania Smith, a recent graduate of the Columbus School of Law at the Catholic University of America, published Diploma Privilege: What This Moment Demands in JURIST. Highlighting the racial and economic inequities associated with the online October exam, she persuasively demonstrated that D.C. must adopt diploma privilege immediately.
The national coalition for diploma privilege, United for Diploma Privilege, has already achieved success in Washington and Utah. Following Vania’s and their lead, applicants to the D.C. bar have once again come together. Organizing as Diploma Privilege for D.C. (DP4DC), we seek to restore diploma privilege to D.C. in response to COVID-19. An online October exam would be inequitable and ineffective. Protecting the public means more than protecting the public health—it means ensuring access to justice. Diploma privilege is the best way to ensure equitable and efficient admission to the bar. It is the best way to ensure that we are able to serve our clients. D.C. needs it now.
Today, the fight for diploma privilege in D.C. begins anew.
Want to get involved? Whether you’re a lawyer, professor, recent graduate, student, or concerned member of the public—we want you. Please don’t hesitate to get in touch with us.
More questions about diploma privilege? Please take a look at our articles.
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