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