Hundreds of students, professors and deans at Washington law schools say recent graduates should be granted "diploma privilege" -- meaning they wouldn't have to take the bar exam to become members of the bar. The privilege was granted to students at Washington law schools last year, but the state Supreme Court has decided not to extend it for the winter exam this month.
On Dec. 3, 2020, the Washington Supreme Court issued an order authorizing the Washington State Bar to go forward with administering the bar exam. It will be given remotely because of the pandemic.
Law school students, faculty and administrators wrote letters asking the court to reconsider. In response, the court wrote, "On February 4, 2021, the court considered these requests and by a majority vote has decided that the decision not to grant diploma privilege will not be reconsidered."
University of Washington law school student Austin Field, who wrote to the court, is perplexed by the order. He said in June 2020, when diploma privilege was granted by the court it was because of the pandemic and social unrest, which were disproportionately affecting communities of color.
“Everything is just as bad now as it was this summer, if not worse. If it was inequitable to have the bar exam in the summer, then it’s inequitable to have one now,” Field said.
He said it seems contradictory because last year following Black Lives Matter protests over the killing of George Floyd, the state Supreme Court pledged in a letter issued June 4, 2020, "We can administer justice and support court rules in a way that brings greater racial justice to our system as a whole."
In an interview with KNKX, Washington Supreme Court Chief Justice Steven Gonzalez said, in terms of granting diploma privilege, there are differences between last year and now. For example, last summer taking the test remotely wasn’t an option.
“So the idea that people would be forced into a space where they might be exposed to the virus and would have to make the choice of either forgoing the bar exam or taking the risk, we made the decision to grant diploma privilege,” Gonzalez said.
But opponents say the remote test is problematic. They're concerned about technology used to administer it. They say the ExamSoft software uses invasive and biased artificial intelligence. It's been controversial elsewhere because it can flag test takers as potential cheaters if they look away from their screens or it there's a disruption behind them.
Field said that can create problems for people who have children or live in multigenerational households where an absolute quiet space isn’t available. He said the suggestion that students can take it from a hotel room isn’t realistic for people of modest means.
“We’re putting people at risk of experiences ranging from racial discrimination to privacy invasion,” he said.
The national Lawyers’ Committee for Civil Rights is threatening to sue California if it goes ahead with the bar exam in February using the software’s facial recognition technology, which it says is racially biased. Field said the letter has recently been circulated among Washington attorneys.
Chief Justice Gonzalez said the Washington State Bar has assured the court some of the problems associated with the software have been addressed.
“For example, the last iteration had problems with people being flagged during the test and knowing they were being flagged and people being disproportionately flagged if they had darker skin,” Gonzalez said.
He said it no longer flags test takers in the middle of the exam. The state bar has added an FAQ on its website about the software.
Gonzalez said the court decision not to grant diploma privilege was not unanimous and "everyone had their own reasons" for how they voted. But not a lot of detail about their thinking was laid out in the three-sentence letter issued by the court on Feb. 4.
Gonzalez did say the court has set up a working group, co-chaired by Justice Raquel Montoya-Lewis, to discuss the broader issue of using the bar exam as a way of measuring someone's ability to practice law.
"Anyone can submit input to that," Gonzalez said.
The concerns of students and law school administrators have caught the attention of the Washington State Bar Association. The bar has scheduled an information session for noon Wednesday, Feb. 17.
In a letter to the community, WSBA Executive Director Terra Nevitt wrote, "We appreciate input and would welcome the opportunity to answer your questions."