Students taking a simulated multistate bar examination in 2014 at the Jacob J. Javits Convention Center in New York City.

Back in April, it seemed that the movement for emergency diploma privileges had fizzled. Utah was the only state that heeded the calls of legal educators and graduates to allow them to skip the bar exam amid the COVID-19 pandemic, and most other jurisdictions unveiled plans to move forward with in-person exams in July or in September.

But diploma privilege advocates nationwide have caught a second wind, bolstered by the Supreme Court of Washington's June 12 decision to admit graduates of American Bar Association-accredited law schools without taking the bar exam—which came less than a month after the court initially rejected an emergency diploma privilege. The Oregon Supreme Court followed suit June 29, agreeing to admit graduates of the state's three law schools who are signed up to take the July bar exam, as well as graduates of other ABA-accredited law schools that had a first-time 2019 pass rate of 86% or higher. Meanwhile, the Minnesota Supreme Court is gathering public opinion on a proposed diploma privilege and looks likely to reach a decision in early July.

"I think [Oregon's decision] is going to help other jurisdictions give careful thought to the diploma privilege option," said Jeffrey Dobbins, associate dean of academic affairs at Willamette University College of Law. "Certainly, the changing COVID-19 numbers are going to have to lead a lot of jurisdictions to be flexible in a way that I think they were not expecting to have to be when they started this planning back in March, April and May."

The renewed push for emergency diploma privileges is fueled by surging COVID-19 cases in a number of states with plans to hold in-person bar exams July 28 and 29—most notably Florida and Texas—as well as the national protests over racial injustice that followed the May 25 killing of George Floyd by Minneapolis police. That unrest has made it even more difficult for many law graduates to study for the attorney licensing exam, advocates have argued.

"Studying for the bar exam is already stressful," said Ohio State law professor Deborah Merritt, one of 12 authors of a March white paper that argued for alternatives to the traditional bar exam this year, and which helped spur the initial diploma privilege movement. "Then they have all the anxieties of COVID-19 on top of that. And now, especially for students of color, some of them are literally at PTSD stress levels. It's ironic to think about student memorizing black-letter law when they are struggling to understand whether our society is even just."

Both COVID-19 and the protests have taken a bigger toll on minority law graduates, Merritt noted, adding to the sense that traditional testing right now is unfair. Moreover, bar examiners are now realizing how many private testing rooms they will need to provide to at-risk examinees for in-person exams. The high cost of that extra space and staffing may also be making diploma privileges more appealing right now, Merritt said. And jurisdictions have simply run out of time to come up with alternatives to the traditional bar exam. Michigan, Indiana and Nevada are administering their own online exams in July, but there's not enough time for other jurisdictions to create their own tests by late July, Merritt said.

The deans of all 10 Texas law schools on June 29 sent a letter to the state's high court requesting a one-time diploma privilege, an online option for the planned July and September administrations of the exam; or the ability to be licensed through an apprenticeship. And several groups of law graduates in Florida, where bar officials are planning to hold an in-person exam in July without a second September exam option—have sent petitions to bar authorities, making the case for a diploma privilege.

"Our state is now at an inflection point," reads the letter from the Texas deans. "The COVID-19 contagion is steeply rising, with infections and hospitalizations increasing beyond even those seen in the spring. The trajectory of the pandemic going forward is not one that inspires confidence that the current plan of bar administration will work for many recent graduates, or perhaps for any of them."

Texas Supreme Court Justice Brett Busby, who serves at the court's liaison to the Texas Board of Law Examiners, said Tuesday that the court hopes to reach a decision about whether it will modify its plans for the upcoming in-person exams by July 3. The state board is due to meet Wednesday to develop recommendations for the high court on potential adjustments to the existing bar exam plans.

"We are continuing to consider the health situation," Busby said. "With the recent number of infections in Texas that were seeing, we're looking at the issue once again of, 'Are there additional adjustments that need to be made to ensure we can get everyone licensed safely?'"

Busby declined to comment on whether he thinks an emergency diploma privilege will be among the adjustments the court will consider later this week.

Despite recent movement on the issue, diploma privileges still face plenty of headwind—namely that the bar exam as a means to demonstrate competence is deeply entrenched within the legal profession. Wisconsin is the only state that traditionally waives local law graduates in without taking and passing the bar exam. The National Conference of Bar Examiners, which designs the national components of the test, issued a white paper in April warning jurisdictions that bypassing the exam risks unleashing unqualified lawyers on the public.

Judith Gundersen, president of the National Conference of Bar Examiners, struck a more conciliatory tone Tuesday, noting that it is offering an abbreviated online bar exam in October for jurisdictions that cannot safely administer an in-person exam in July or September. Washington, D.C., and Maryland have already cancelled earlier plans to hold an in-person September exam in favor of the October online test, though scores earned in October will not be transferable to other jurisdictions.

"We understand that jurisdictions are all making difficult decisions about what they need to do under these exceptional circumstances, especially as COVID cases are resurging in some parts of the country," Gundersen said. "We remain committed to supporting courts and admission offices as they make decisions on how to safely and effectively license law graduates in 2020."

Even in Oregon, the diploma privilege measure faced opposition. The high court split 4-3 on allowing some graduates to skip the exam. By contrast, the court's decision to also offer the National Conference of Bar Examiners' online test in October and to lower the cut score for the in-person July Uniform Bar Exam from 274 to 266 were unanimous. (Law graduates who utilize the diploma privilege and the October online bar exam will only be admitted in Oregon. Those who sit for the July in-person exam will be able to transfer their scores for admission in the 34 other Uniform Bar Exam jurisdictions.)

The deans of Oregon's three law schools—Willamette University College of Law; the University of Oregon School of Law; and Lewis & Clark Law School—made the case for a one-time diploma privilege in a June 15 letter to the state Supreme Court. Recent law graduates also lobbied the justices to take that route.

"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," reads the deans' letter. "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."

Willamette Law held a simulated administration of the Multistate Bar Exam—the 200-question multiple choice portion of the two-day test—earlier this month, Dobbins said. Students were socially distanced on campus and wore masks.

"I think that really drove home for students how unusual—and in some ways—how difficult the bar exam was going to be this July," he said. "There is a lot of excitement on the part of the graduates over the diploma privilege, though they still have some important decisions to make about whether they will take that, or go ahead with the bar exam."