This statement is in response to the article titled “Oregon’s Law Schools Ask Supreme Court to Waive Bar Exam Due to COVID-19. The Bar Is Not Pleased.” As a 2020 law graduate and someone intending to sit for the July bar, the article seriously lacks key information as to why students, professors, and licensed attorneys are advocating for diploma privilege. Furthermore, the original article promotes unnecessary fear-mongering of diploma privilege and a general distrust of legal professionals.
The Universal Bar Exam (UBE), as administered in Oregon, is a two-day exam that covers select topic areas in three sections: multiple-choice, short-form essay, and long-form essay. The multiple-choice section, known as the Multistate Bar Examination (MBE), consists of 200 questions with choices of A–D. The short answer section, known as the Multistate Essay Exam (MEE), is six thirty-minute short essays. Finally, the Multistate Performance Test (MPT) is two ninety-minute closed-universe long-form essays that require test takers to demonstrate their reading comprehension and ability to follow directions (essentially, the MPT does not test substantive legal knowledge since the closed universe format provides all the substantive law applicable to the task). As for the substantive areas of law covered by the exam, there are seven topics covered by the MBE: Contracts and Sales, Constitutional Law, Criminal Law and Procedure, Federal Civil Procedure, Federal Evidence, Real Property, and Torts. For the MEE, there are twelve potential topics: Business Associations, Federal Civil Procedure, Conflicts of Law, Constitutional Law, Contracts, Criminal Law and Procedure, Federal Evidence, Family Law, Real Property, Torts, Trusts and Estates, and the Uniform Commercial Code. Under each major topic area, there are a variety of legal concepts bar takers need to know. Under the UBE, test takers are not tested on the law of the jurisdiction they are sitting for itself. Rather, test-takers study common law (law created through judicial precedent rather than statutes) or federal law. The exam is traditionally held at one testing location, the Red Lion Hotel in Portland, where test-takers typically stay to avoid potential barriers to arriving at the testing location on time. The test-takers typically make reservations to stay at the Red Lion for the exam weeks in advance.
The most notable aspect of the exam is it tests a limited range of subjects. While there are thousands of potential areas of law to practice, such as animal law, environmental law, immigration, insurance, maritime law, etc., these areas are not tested. Although it can be said all aspects of legal practice touch the major areas tested in the UBE, the vast majority of attorneys will not use a significant amount of the law learned while studying for the exam in their practice of law. The exam is considered by many in the legal community to be part of the tradition of becoming an attorney, rather than truly measuring one’s success and ability in legal practice. Proponents of the bar exam state the exam is one of minimum competency. The question that naturally comes from this assertion is minimum competency of what? The ability to study and memorize common law that may not apply in Oregon? Who can break down the MBE questions the fastest? Who can remember all the elements of an intentional infliction of emotional distress claim? Who can remember to cite the footnote in their MPT file?
What the bar exam does measure is a person’s ability to study for six to ten hours a day for five to seven days a week. The bar exam measures a person’s ability to study and take standardized tests. The bar exam measures a person’s ability to afford to not work for two to three months. The bar exam measures a person’s ability to tune out the world around them to focus on memorizing the legal tests and standards we are required to know for the exam. There is a litany of empirical evidence that shows standardized testing unfairly benefits those who come from a middle and higher socioeconomic status. Standardized testing also unfairly precludes black, indigenous, and people of color (BIPOC) from success through a combination of factors. Here are just a few of the studies and articles which detail testing bias in the bar exam: A Better Bar: How and Why the Existing Exam Should Change by Andrea A. Curcio (2002), Bar Exam, the Standard to Become a Lawyer, Under Fire by Elizabeth Olsen (2015), Battling Bias: How Can Diverse Students Overcome Test Bias on the Multistate Bar Exam by Christina Shu Jien Chong (2018), Guests in Another’s House: An Analysis of Racially Disparate Bar Performance by Cecil J. Hunt II (1996).
As stated above, the bar exam tests one’s ability to tune out the world to focus on legal concepts one may only need to know for two days out of one’s entire legal career. Expecting students to be able to tune out at this moment in time is incredibly naive. The world is currently in the middle of a worsening global pandemic, COVID-19. Without treatment available, and states (including Oregon) preemptively reopening, the United States is seeing a significant increase in cases. Within the last week, cases in Oregon have skyrocketed.
The Board of Bar Examiners’ (BBX) solution to COVID-19 risks is to split the exam into four different testing locations across the state, seat students apart, require temperature tests when entering the testing location, and require all test takers to wear a mask while at their testing site. As of today, students do not know which site we will be assigned to. The Oregon State Bar (OSB) announcement stated we might not know which testing site we will be assigned to until as late as July 7. Furthermore, BBX added an additional requirement for all test takers to sign a form entitled “COVID-19 Code of Conduct, Declaration, Release and Assumption of Risk.” The COVID-19 Code of Conduct form was sent to students on June 5, and it requires all test takers to sign away their right to hold OSB liable we become sick, and potentially die, while taking the bar exam.
Attempting to take the bar exam in any semi-traditional setting is, without a doubt, extremely and unnecessarily dangerous to test takers, test proctors, and those who come into contact with either group. The BBX is undertaking the task of organizing a gathering that could potentially result in the infections of hundreds of people to take a test that test takers do not have the same resources and ability to study for. It matters that test-takers cannot access campus resources since many have families and young children at home who may not understand the amount of concentration required to study for the exam. It matters that we cannot access library resources and study aids like Critical Pass flashcards or Emmanuel study guides to help us study. Our options are either forgo those additional study aids or purchase them at retail value. This is obviously not an option for many of us who cannot afford to spend $100–$500 in addition to the already expensive bar prep materials (which are, at a minimum, around $1,900). The inability to afford such materials is especially heightened when the majority of us are not working, worked unpaid legal jobs in law school, had our post-bar employment rescinded as a result of the pandemic, or face the looming fear of the impending economic recession.
The bar exam is, and always has been, a measure of the haves and have nots in legal practice. As stated above, standardized testing favors those from a higher socioeconomic status and white people. This is a result of the massive inequalities in the United States and legal practice. Going to law school costs hundreds of thousands of dollars. Those of us who want to attend, but do not have sufficient financial aid from the schools or our families are put in a position of either not going to law school or taking out an insane amount of student debt. This is not a personal failing on those who do not have the upfront economic means to go to law school, rather the system was intentionally designed to keep lower-income and BIPOC out.
Something strange in the original article was the decision to completely opt-out of discussing the impacts of the protests for the deaths of George Floyd, Breonna Taylor, Amhed Arbury, and other BIPOC people who are subjected to unlawful harassment, brutality, and murder by police and civilians alike. This is especially odd since Oregon has a lurid history of racism beginning at the founding of the state that has continued to this very day. As the student letter stated, the mental and emotional impacts of the current civil uprising are deeply profound to many of us, especially BIPOC test takers. At the peak of the protects, those living in Portland could hear the flashbangs, the long-range acoustic device (LRAD) telling the lawful protestors to leave the area or be subject to force, and smell the tear gas seeping inside our apartments. We would wake up the next day and see images of protestors weeping from chemical gas used on them (which is not only a literal war crime but using a chemical weapon that affects one’s respiratory system in the middle of COVID-19 is, at best, extraordinarily irresponsible), blood pouring from protestors who had been hit with less-lethal rubber bullets, and videos of the police in full riot gear actively attempting to subvert the media through violent force or arrest. This doesn’t even take into account the mental and emotional impacts of BIPOC test-takers living in an extremely racist state and seeing BIPOC murdered on the news with little to no accountability for the perpetrators of the crime.
The protests are the embodiment of why many of us went to law school in the first place. We are people who want to work toward justice, equity, freedom, and liberty for those who suffered oppression by the government, the police, and society. For you to completely ignore the reality and impacts these protests have had on test-takers, a concern that was heavily and directly addressed in the student’s letter to the Oregon Supreme Court, is extremely troublesome. The original article was written from a perspective of someone who does not know what the bar exam is, how it operates, why it is administered, and the purposes it is meant to serve. The article does not even attempt to understand why students are advocating for diploma privilege, instead referring to it as a “free pass” to licensure.
According to the Cambridge Dictionary, the singular noun definition of a free pass is “the complete freedom to do something.” Diploma privilege, in name alone, is in direct contrast to this definition. Students are not asking to be admitted into legal practice without going to law school, taking the multistate professional responsibility exam (MPRE—a legal ethics exam), or not completing any academic or experiential requirements of graduating from law school. What students, law school faculty, and licensed attorneys are asking for is the ability to be granted admittance to the bar without the final step in the process: a step that is considered a formalist tradition. We all went to American Bar Association (ABA) accredited law schools, we spent three years of countless hours of studying, writing, working, and advocating under licensed attorney supervision, and we all met the necessary requirements of being conferred a Juris Doctorate. We are asking for a floor-level amount of decency by the BBX to allow us to practice, chip away the massive amounts of debt we have incurred, to start working to help those in need right now and to stop the exacerbation of COVID-19.
Every single graduate in the class of 2020 knew when enrolling in law school there would be this massive exam after the completion of our education. We all knew that the exam is generally considered a tradition of admittance to practice and does not reflect what practice actually entails. We all knew that it would require us to take off multiple months of work to save for our living expenses. We all knew it would be an uphill process, but if we studied and learned how to take the test we were told it would be fine. What we did not know is that a global pandemic that was handled with absolutely zero care would shut down our last semester of law school. We did not know our lives would be completely uprooted to protect ourselves, our loved ones, our neighbors, or random strangers from a painful and potentially deadly virus. We did not know we would be studying while massive civil unrest was occurring. We did not know we would be forced to sleep through the smell of tear gas coming through the windows. We did not know we would have to sign our rights away to take the test and risk getting sick. We did not know we would watch BIPOC people be murdered by the state and have to sit back while an unprecedented civil uprising occurs that we cannot participate in because we have to study and avoid getting sick at all costs.
Lawyers are considered one of the least trustworthy professionals in America. Articles like “Oregon’s Law Schools Ask Supreme Court to Waive Bar Exam…” perpetuate the notion of distrust for legal professionals, especially when you frame those sitting for the test as wanting a free pass. While the Willamette Week (WW) publishes articles about the current worsening state of the pandemic and the lack of police accountability in Portland, the WW simultaneously posts an article scoffing at exam takers who are desperately trying to not get sick and to exercise our rights to participate in these protests. Do we not matter because we chose to go to law school? Do we not matter because our profession has been stereotyped as a group of snarky and untrustworthy word mincers who are trying to defraud the very clients we represent?
My classmates in law school are extremely smart, forward-thinking, and dedicated to the practice of law in the service of their clients. The bar exam will not, and would not, stop this group of students. Every single person sitting for the July exam has taken an incalculable amount of standardized tests and exams to get to the position we are in today. We are not asking for a free pass for the last one, we are asking for a “free pass” to not get sick and die from a preventable illness, to not infect others with the same preventable illness, and to work toward the justice we want to see in the world; and frankly, none of those things would ordinarily be considered being worthy of a free pass. Rather, those items are typically a generally accepted part of living within an organized society.
I see proponents of having the July exam say diploma privilege will damage the legal profession, or they argue along the lines of “I suffered so should you.” The July 2019 exam had an overall passage rate for first time test takers of 84%, or 264 of the first time test takers. The remaining 16%, or 51 first time test takers, failed. Now, why or how these folks failed, or the margin by which they failed, is information that I am not privy to. What I can say is in 2017 the Oregon Supreme Court lowered the required score to pass from 284 to 274, after three consecutive years of the passage rate being under 70% for first-time test takers. The WW even had an article about that too. Although a component of the law school deans’ advocacy for the score change was, in part, to improve the passage rates for the schools, Oregon still has the fourth-highest UBE passing score in the country. Now is the legal profession in Oregon plagued with an influx of incompetent attorneys who would have not passed the bar if not for the score decrease? What about all those attorneys in states that have lower passage rates than Oregon (including Washington)? What about in Wisconsin, where local graduates of an accredited law school are allowed to practice without taking a bar exam? These questions call into doubt the true correlation between passing the bar exam as a measurement of one’s ability to practice the law.
Furthermore, there are ethics and disciplinary boards for every state bar organization. Attorneys are required to take a certain amount of continuing legal education (CLE) credits each year. Do you really suppose incompetent lawyers would not be weeded out by either of these? The bar exam does not stop an attorney’s commitment to practicing efficiently and ethically in the slightest. Rather, it is just the beginning of the real oversight to come.
Finally, although not addressed in the article, the liberal bootstrapping and suffering argument is tired, unconvincing, and lazy. Because you personally suffered means all those after you must suffer as well, regardless of extenuating circumstances? Ultimately, the continuation of suffering is just being in favor of suffering. Instead of begetting the same hardship, you experienced to those who come after you, why not work toward building a better and more equitable future? The bootstrapping argument pops up whenever some type of meaningful betterment to society is proposed, and all it truly accomplishes is pitting in-groups and out-groups against each other.
I implore everyone to read the Student’s Letter to the Supreme Court sent on June 15. The student’s letter does a far better job of articulating the fear we are all feeling at this time than my words do in this letter. It is absurdly crass and lacking basic decency to assert anyone is just trying to get a free pass. The students, law faculty, and attorneys who signed the student’s letter are looking towards a better and more equitable future in the practice of law.
Sarah M. Anderson, J.D. is a 2020 graduate from the University of Oregon School of Law. Sarah was born and raised in Portland, Oregon and her interests include administrative law and public policy.
Suggested Citation: Sarah M. Anderson, An Open Letter Regarding the Oregon Bar Exam and Diploma Privilege, JURIST – Student Commentary, June 24, 2020, https://jurist.org/commentary/2020/06/sarah-anderson-open-letter-diploma-privilege
This article was prepared for publication by Brianna Bell, a JURIST Staff Editor. Please direct any questions or comments to her at commentary@jurist.org
