[READ MORE HERE: About bar exam horrors in Missouri and Maryland]
Yesterday, Washington called off its entire July bar exam after the NextGen debut collapsed in a Yakima convention center — six hours of dead WiFi, not a single question answered, an entire administration scrapped. The Washington State Bar Association handed the roughly 600 stranded examinees three options, every one of which quietly bills them for a failure they had nothing to do with: a September makeup in Tacoma, a transfer to February 2027, or a withdrawal-and-refund that is a nonstarter for anyone who, you know, would like to practice law this year.
There is, of course, a fourth option. And if you have read Above the Law for any length of time, you did not need me to tell you that, because the instant you heard “bar exam disaster,” a tiny Joe Patrice materialized on your shoulder and whispered, “What about diploma privilege?”
He has been whispering it — hell, he’s been yelling — for years. He has, in fact, been yelling directly at Washington.
Back in February 2021, when the state walked back the emergency diploma privilege it had granted months earlier and herded its graduates toward a remote exam instead, Joe laid out the entire case in a paragraph that reads today like it was written for Tuesday:
[S]tates aren’t in the business of offering the “best” bar exam, they’re in the business of licensing professionals. If the bar exam was the best way to do that, then so be it, but we’ve seen diploma privilege work for years and we’ve seen lawyers pass the bar exam and run massive client frauds. A robust reevaluation of licensure should dominate professional discussions for the next few years. But in the meantime, there’s zero reason to ram a test down the throats of graduates who would’ve been waived in a mere six months ago.
Swap “six months ago” for “in 2020” and the argument lands without a scratch. The graduates Washington is now asking to book a second set of bar exam travel arrangements are the same category of graduates the state once waved straight into the profession.
Joe’s broader case against treating the bar exam as holy rite of passage is a whole genre at this point, complete with a standing challenge for any court that defends the test on “public protection” grounds:
Is there evidence that a one-time examination constitutes meaningful oversight of a career? … here’s my question to all these courts: “What are the next 10 words of your answer?” Because if anyone is willing to get past “we need it for public protection and maintaining professional integrity,” it would help a lot.
And every time a state actually tries an alternative path — Utah, most recently — it turns out the sky isn’t falling.
Which is what makes Washington’s predicament almost too easy. The state does not have to invent anything, convene a task force, or pilot a program. In June 2020, the same Washington Supreme Court that now holds these graduates’ careers in its hands granted emergency diploma privilege to graduates of ABA-accredited law schools, admitting them to the bar without an exam. Grads who wanted a portable score could still sit for one later; everyone else got to start their careers. The republic survived. This is not ancient precedent a court would have to blow the dust off… it is six years old, from the same institution, and it worked.
The people who run Washington’s law schools are on board. Seattle University School of Law Dean Tony Varona wrote to the state Supreme Court Tuesday evening urging exactly this, branding the September rescheduling “unwise” and the whole episode a disaster. “No altogether good options,” he wrote, “but equity and fairness require diploma privilege.”
University of Washington School of Law Dean Tamara Lawson sent her own letter. Per UW law professor David Ziff, who shared excerpts, Lawson asked the court to grant “diploma privilege . . . to avoid any additional harms to these graduates, specifically to prevent any delay in their careers or admission to the practice.”
And she did not hedge about who is currently absorbing the cost of the NCBE’s big debut:
This solution is the only equitable remedy that would ensure that the financial, professional, and emotional burdens of this catastrophic failure are not shifted to the test takers.
The only question left is whether Washington takes the humane, already-tested route out, or makes a class of graduates who did everything right pay in time, money, and hotel reservations for a disaster that was never theirs to fix.
Earlier: Washington Just Called Off Its Entire Bar Exam
Washington Grants Diploma Privilege To Graduates Of ABA Accredited Schools
State Retreats From Diploma Privilege Policy Despite EVERYTHING WORSE NOW!
Yes, It’s Time To Eliminate The Bar Exam As We Know It
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Bluesky @Kathryn1
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