Letter From Marcilynn Burke (Dean, Oregon), Brian Gallini (Dean, Willamette) & Jennifer Johnson (Dean, Lewis & Clark) to Oregon Supreme Court: Diploma Privilege Request (June 15, 2020):
We are the deans of Oregon’s three law schools, and we are writing to request that the Oregon Supreme Court, under its inherent authority to regulate the practice of law, institute a one-time emergency “diploma privilege” to practice in Oregon for any person who timely filed an application for the July Oregon bar exam and is otherwise qualified for admission, notwithstanding the COVIDrelated space limitations. We are deeply appreciative of the efforts of the Oregon State Bar (OSB) and the Board of Bar Examiners (BBX) to administer the July exam at multiple sites—including our law schools—in order to try to socially distance the applicants from each other in light of COVID-19. But as the number of new confirmed and presumptive COVID-19 cases continues to increase steadily in our state, this plan becomes more imprudent. Indeed, COVID-19 cases have spiked this past week in Oregon to their highest level yet, causing Governor Kate Brown just last Thursday to pause reopening the state. Authorizing a diploma privilege is the more prudent and equitable option for our state.
We are not alone in our concern about holding a bar exam during a global pandemic. The Court is no doubt aware that the Washington Supreme Court, reversing its own May decision on this issue, announced on Friday that applicants registered to take the July bar exam in the State of Washington would be “granted the option of receiving a diploma privilege to practice in Washington.” The order of the Washington Supreme Court is attached. Washington is not an outlier; indeed, a number of other states have either adopted diploma privilege or are pursuing non-traditional bar exams, including remote administration.
Apart from administration of the bar exam itself, there are very real concerns for our graduates in preparing for the exam.
All students in our three law schools had to finish their law school careers remotely, sometimes under dire home circumstances due to COVID-19. While finishing law school some students home-schooled their children; others suffered job loss; and still others coped with family members who fell ill, became unemployed, or even died. And, because our three campuses were closed to students during the latter part of the spring semester, many of our students could not find a quiet place to study, as some struggled to find sufficient internet connections to even attend class. These same struggles will only be amplified in preparation for this ultimate, high-stakes test.
Until June 13, the Governor’s Executive Orders governing higher education kept all three law school campuses closed and, thus, unable to provide printing services, quiet study spaces, quality internet access, in-person workshops or counseling with faculty members, or other resources that are routinely provided to our bar studiers. Graduates of color, who are disproportionately at risk of contracting the virus and suffering adverse consequences, are perhaps the most challenged in their bar preparation due to the increased health risks and inequality of access.
Only this week has Governor Brown issued a new order and the Oregon Health Authority (OHA) issued guidance to allow us to begin opening our campuses to students. However, under this guidance, our graduates still may not make widespread use of our facilities for bar preparation. Many bar applicants, particularly those of limited means, must continue to study at home with roommates or family members, including children. Further, Multnomah County has not yet been approved for phase one reopening. That status could potentially impact the ability of Lewis & Clark Law School or the Red Lion to host a July examination.
In addition to the extreme stresses of this unprecedented pandemic, our state and nation are also reeling from the senseless and outrageous killings of George Floyd, Ahmaud Arbery, Breonna Taylor, Tony McDade and, most recently, Rayshard Brooks—to name but a few who are the most recent victims of ingrained racism and violence toward people of color in our country. Those killings have prompted a massive ongoing effort to force a reckoning with the reality of structural racism in America, including eighteen straight days of protest here in Oregon. The profound impacts of the protests, and the tragedies that led to them, do not fall equally upon all members of our community. As the Court rightly observed in its letter to OSB members on June 5, 2020: “Those deaths have had a tremendous impact on all of us, but especially on our colleagues, family, and friends from communities of color, who experienced them on a very personal level.”
Finally, there is the additional prospect that our graduates are preparing for an exam that will not occur. Although the OHA may have given tacit approval of the OSB/BBX plan, the ability to administer the exam is still contingent upon the health conditions in the state at the end of July. That uncertain state of affairs only adds to the stress current bar applicants now face. Even if the bar exam goes forward, the applicants’ ability to perform as well as possible will have been seriously undermined by the historic, disruptive circumstances under which our applicants are preparing, as well as the extraordinary (masked, socially distanced) conditions under which they will have to take the exam.
Given the turmoil our nation has endured over the past three months, the continued disruptions in the daily lives of our graduates, and the recent resurgence of COVID-19 in Oregon, it is difficult to imagine how any bar examination administered in July could be considered either prudent or fair. At the same time, the prospect of being unable to practice law due to a postponed or canceled bar exam would no doubt be crippling to our graduates. Importantly, allowing our graduates to engage in limited supervised practice is an insufficient substitute. In addition to delaying the exam, many of our graduates will be unable to secure work until licensed. Even those who could secure work would be tasked with studying for a postponed examination while actively representing clients.
Under these unprecedented circumstances, we ask the Court grant an emergency, one-time diploma privilege to qualified applicants for the July Oregon bar exam, who have been reserved a seat and those who filed a timely application but were not reserved a seat due to COVID-related space limitations. Applicants who want to take the exam in order to have transfer privileges to other jurisdictions that accept a Uniform Bar Exam could still be permitted to do so.
The Court has the authority to admit applicants to the OSB. Although ORS § 9.220, governing general requirements for admission, requires a bar examination “by the judges or under their direction,” ORS § 9.006 explicitly states:
Nothing in ORS 9.005 to 9.757 affects the inherent authority of the Supreme Court to adopt rules for the operation of the courts, including any rules relating to the regulation of the practice of law, that are deemed necessary by the court. (emphasis added)
As Oregon law school deans, we are confident that our graduates are practice ready. Graduates today are required to engage in practical skills while in law school and many students exceed the American Bar Association (ABA) requirements for experiential learning in clinics, simulation and skills classes, externships and clerkships. In asking the Court to grant a diploma privilege, we recognize that graduates of Oregon law schools are not the only ones impacted by the current situation. We therefore request the Court to, on this one-time emergency basis, also admit graduates from all ABA-accredited and approved law schools who are registered for the Oregon bar exam.
Our state needs well-trained, compassionate lawyer-leaders—now. Each day that passes in this new reality uncovers a host of exacerbated and novel legal issues. Our graduates can assist on the front lines of helping to address the complex and evolving legal needs of Oregon’s citizens.
Though the BBX may not have the authority to forgo an exam and admit applicants, the Court has the power to grant the option of receiving a diploma privilege to practice in Oregon. We implore the Court to exercise its inherent authority for this extraordinary time