An Open Letter from Public Interest Legal Organizations Supporting Diploma Privilege
Dear National Conference of Bar Examiners and the State Bar Examiners of Alaska, California, Connecticut, District of Columbia, Florida, Georgia, Guam, Hawaii, Illinois, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Nebraska, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, Tennessee, Texas, Utah, Vermont, Virgin Islands, and Wyoming:
We the undersigned legal organizations are engaged in training and supporting the next generation of public interest attorneys and are committed to a diverse and inclusive profession that reflects the communities we serve. We have a shared recognition that diversity in the legal profession remains woefully inadequate, and the bar exam is one of many structural barriers that contribute to that problem. As such, we are very concerned that continuing bar exam administration during this pandemic will unnecessarily and unequally burden applicants as they attempt to enter critical public interest roles in the profession. In states where recent candidates have been required to take the bar exam in person or online, there already have been significant problems including, for example, the exposure of test takers to COVID-19 and cybersecurity failures.
The COVID-19 pandemic has negatively and irreparably harmed the health and livelihood of millions around the country, hugely increasing the need for public interest practitioners. Neither the virus nor its catastrophic effects appear to be waning anytime soon. We do not believe in-person bar exams should continue under these conditions, nor do we believe online examinations are an equitable substitute. Instead, we urge the cancellation of state bar examinations this year and the awarding of full diploma privilege to recent law school graduates.
We write especially to emphasize that both in-person and online exams exacerbate inequities affecting applicants of color, lower-income applicants, and applicants with disabilities. Even absent a global pandemic, preparing for the bar exam requires intensive, focused study that graduates who are living in crowded homes, caring for children or other family, or managing illness may not be able to do. With the added challenges imposed by the pandemic, law school graduates with chronic health conditions and living with essential workers (who are disproportionately people of color and women) or at-risk family members are placed at a further disadvantage relative to their peers. The extension of the bar exam to October in some states means a five-month income gap that is more difficult for lower-income graduates and graduates of color to bridge.
These inequities, cancelled or postponed exams, and the troubled roll-out of in-person and online bar exams risk disrupting employment for a significant number of bar applicants. Delays in licensing graduates also affects the communities to which bar applicants would provide legal assistance. Each year, more than 24,000 law school graduates begin jobs that require bar admission. Approximately half of these graduates serve the needs of low- and middle- income communities and small businesses. Disrupting the flow of new lawyers into direct-service providers, government offices, and other public interest legal positions will further undermine access to justice for under-resourced communities that already struggle to obtain legal assistance. The threats our marginalized communities face are especially grave at this moment: a wave of mass evictions appears imminent, workers continue to face unsafe working conditions, and voter suppression foreshadows “a potentially disastrous November election.” We need licensed law graduates to meet the needs of these communities right away.
From a public health perspective, in-person exams immediately risk serving as a vector for the spread of COVID-19. Despite varying levels of mitigating safety practices instituted by examiners, multi-hour indoor activities present a significant risk of infection. In Colorado, for example, an examinee tested positive for COVID-19 after the exam, which directly exposed 22 other people who were in the same room. This exposure risk will negatively affect all bar-takers, but disparately impacts individuals with health problems making them especially vulnerable to COVID-19, or who live with or care for individuals with such risks and cannot self-isolate. Holding in-person exams also will risk sparking broader community spread as test takers and administrators return home from test sites. Furthermore, holding in-person exams — and allowing the further spread of the virus — will itself have a disparate racial impact because people of color who contract COVID-19 have significantly worse health outcomes than do their white counterparts.
Although online exams reduce the risk of sparking new outbreaks, they exacerbate inequities among bar-takers and have proved to be unreliable. Online exams, especially ones implemented for the first time, present many accessibility challenges to people with disabilities; for example, people who are blind and have other visual and eye coordination problems may not be able to access the facial recognition software required for some online tests. Persons with disabilities who request reasonable accommodations for the online exam also have been required by various states to take the exam in-person. Additionally, access to fast and reliable internet connectivity is not equal across communities. Rural communities and low-income neighborhoods, as well as neighborhoods inhabited predominantly by communities of color, frequently have spotty internet service as a result of “digital redlining.” Household overcrowding and family obligations may make taking the bar at home effectively impossible, and the pandemic has further limited the number of quiet public spaces, such as libraries, where bar-takers could go. The online exams administered thus far have been plagued with cybersecurity and access issues, and the use of facial recognition technologies risks threatening civil rights and civil liberties, particularly for people of color.
Given the public health and equity concerns of in-person and online exams, we believe the only fair, safe, and administrable option is diploma privilege — in other words, licensing recent law graduates without requiring a bar examination. Wisconsin licenses lawyers through this practice for in-state graduates on a permanent basis, while Louisiana, Oregon, Utah, and Washington have implemented some form of diploma privilege on a temporary basis in response to the COVID-19 pandemic. To the extent there are concerns about the ability to assess minimal competence to practice without the bar examination, state bars can add requirements, including for example, requiring affidavits from an employer or externship supervisor that the candidate possesses the knowledge and skills to practice law, law school certification of additional educational credentials, such as successful completion of a clinic or externship, more explicit supervision requirements for new lawyers, or completion of bridge-the-gap programs and other online CLE programs.
We urge state courts and bar examiners to grant admission to their respective state bars based on receipt of a juris doctorate for the duration of the coronavirus pandemic.
Signed,
Public Rights Project
A Better Balance
ACLU of Florida
ACLU of Georgia
ACLU of Kentucky
ACLU of New Jersey
ACLU of San Diego and Imperial Counties
ACLU of Southern California
ACLU of Texas
Advocates for Basic Legal Equality, Inc. (ABLE)
Advocates for the Elderly and Disabled
Alternatives for Community & Environment (ACE)
American Association of University Women (AAUW)
American Constitution Society
American-Arab Anti-Discrimination Committee (ADC)
Americans United for Separation of Church and State
Amistad Law Project
Appellate Advocates
ArchCity Defenders
Asian American Legal Defense and Education Fund (AALDEF)
Bazelon Center for Mental Health Law
Bet Tzedek Legal Services
BPI (Business and Professional People in the Public Interest)
BU Law Immigrants’ Rights and Human Trafficking Program
California Innocence Project
Campaign Legal Center
Center for Constitutional Rights
Center for Popular Democracy
Center for Public Interest Advocacy and Collaboration at Northeastern University School of Law
Center for Public Representation
Center for Reproductive Rights
Centro Legal de la Raza
ChangeLab Solutions
Charles Hamilton Houston Institute for Race & Justice at Harvard Law School
Chicago Community Bond Fund
Columbia Law School Immigrants’ Rights Clinic
Columbia Legal Services
Committee of Public Counsel Services
Community Legal Services, Philadelphia
Connecticut Legal Rights Project, Inc
Defender Impact Initiative
Disability Rights Education & Defense Fund
Dominican Bar Association
Earthjustice
Education Law Center-PA
Election Protection Arizona
Equal Justice Center
Equal Justice Society
Equal Rights Advocates
Exoneration Project
Fair and Just Prosecution
Family and Children’s Law Center
First Shift Justice Project
Gideon’s Promise
GLBTQ Legal Advocates & Defenders
Hawaii Innocence Project
Health Law Advocates
Hispanic National Bar Association
Immigrant Justice Corps
Immigrant Legal Resource Center
Innocence Project of Florida
Innocence Project of Minnesota
Institute for Constitutional Advocacy and Protection
Just Futures Law
Justice Catalyst Law
Justice in Aging
Juvenile Law Center
Katharine & George Alexander Community Law Center
Kentucky Innocence Project
Lambda Legal
LatinoJustice PRLDEF
Law School Transparency
Lawyers for Civil Rights (Boston)
Lawyers’ Committee for Civil Rights Under Law
Lawyers’ Committee for Civil Rights of the San Francisco Bay Area
Legal Action Center
Legal Aid at Work
Legal Aid of Sonoma County
Legal Clinic for the Disabled
Legal Rights Center
Legal Services for Children
Massachusetts Advocates for Children
Massachusetts Law Reform Institute
MetroWest Legal Services
Midwest Innocence Project
Mississippi Center for Justice
Mississippi Workers’ Center for Human Rights
Mobilization For Justice, Inc.
Movement Law Lab
NAACP Legal Defense Fund
National Center for Law and Economic Justice
National Center for Lesbian Rights
National Disabled Law Students Association
National Employment Law Project
National Immigration Project of the National Lawyers Guild
National Lawyers Guild
National Organization for Women
National Women’s Law Center
Neighborhood Legal Services Association
New Haven Legal Assistance Association, Inc.
New Mexico Center on Law and Poverty
New York Lawyers for the Public Interest
Northern California Innocence Project
Northwest Immigrant Rights Project
Northwest Workers’ Justice Project
Oasis Legal Services
Office of the Appellate Defender
People’s Parity Project
Philadelphia Volunteer Lawyers for the Arts
Pride Law Fund
Prisoners’ Legal Services of Massachusetts
Protect Democracy
Public Justice
Public Justice Center
Public Law Center
Skadden Fellowship Program
Social Justice Collaborative
Southern Center for Human Rights
Southwestern Pennsylvania Legal Services
Texas Appleseed
The Bronx Defenders
The Harvard Legal Aid Bureau
The Rhode Island Center for Justice
Towards Justice
Transformative Justice Coalition
Transgender Legal Defense & Education Fund
Urban Justice Center
Women’s Law Project
