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Although the COVID-19 pandemic has brought many challenges to the legal academy, the bar examination has faced one of the most notable challenges. The bar exam is taken by graduates of law schools to obtain licensure to practice law. It is typically a rigorous two-day exam with questions in a variety of formats. The first day consists of the Multistate Bar Examination, which covers many areas of law, and the second day typically has essays specific to that state’s bar exam. Law school graduates prepare for months for this exam, and many do not pass on their first attempt. The exam is a major source of anxiety and stress for test takers because their ability to get a job as an attorney rests upon their score in this single test. The impact of the COVID-19 pandemic on the bar exam is immense this year because states were faced with the potential health and safety risks of proctoring an exam in person. Many states felt that it was not safe to hold the exam in crowded testing centers that do not allow for proper social distancing. These states came up with a variety of alternatives to the traditional bar exam. However, several states kept their summer exam in person despite safety concerns, forcing hundreds of law graduates to pack into testing centers for long periods of time amidst a global pandemic.
All of the paths taken this year with regards to the bar exam had pros and cons, but what resulted was a broader discussion of the necessity of the bar exam. This article will outline the different options taken for administration of the bar exam in the summer of 2020, including in-person exams, remote exams, and diploma privilege. This will be followed by an explanation of the expanded discussion of the bar exam that has resulted from the catastrophe of the administration of the bar during the COVID-19 pandemic. The legal community is now questioning the actual value and necessity of the bar exam and continues to question its future as a gatekeeping mechanism to the legal profession.
As the summer progressed, coronavirus cases continued to rise, but 23 states held on to their in-person bar exams. States like Idaho, North Carolina, and Arizona each had different levels of protections in place to prevent the spread of COVID-19. In North Carolina, test takers were required to wear masks and remain socially distant from others. Other states had varying degrees of safety protocols in place in the exam room and testing center. Eight states even required those who decided to take the exam in person sign a waiver to not sue should they become infected with COVID-19 during the exam. Students in states like these that continued to offer an in-person exam were left with a lose-lose situation: either take the test and risk their health or not take the exam and delay their ability to practice as an attorney. By forcing students to make this decision and not offering any alternatives to the in-person exam, the boards of bar examinations have ruined people’s career plans. For example, this was devastating for law school graduates like Britni Prybol, who graduated from law school in North Carolina in May. Prybol is a cancer survivor, so COVID-19 is all the more dangerous for her. This experience has inspired her to help collect the surveys from bar exam takers and write a report based on the results to encourage North Carolina lawmakers to create a bar exam oversight committee with the hope that future exams will be more cognizant of students’ concerns in taking an exam in person.
On the other hand, eighteen states and the District of Columbia chose to cancel their in-person exams and replaced them with online bar exams, which had both advantages and disadvantages as well. In theory, an online bar exam is good because it allows bar takers to stay with their intended path to licensure while avoiding the risks of an in-person exam during a global pandemic. However, states were largely unprepared to give a bar exam remotely. The remote formats were thrown together in a relatively short amount of time, which inevitably resulted in technological issues for exam takers. Many students reported the failure of the ExamSoft software, which was used in several states, during their exam. After the New York bar exam was delivered remotely, about 40 percent of students reported internet or software issues. It was difficult to resolve many of these issues during the exam period. Even if the technological issues are sorted out, a disruption like this can easily hinder the performance of those taking the exam. Hence, even though an online bar exam was favorable to an exam delay or cancellation, it was not administered successfully.
One of the most favorable alternatives, according to members of the legal community, was granting diploma privilege to recent law school graduates in lieu of the bar exam. Diploma privilege gives lawyers the ability to be admitted to the bar and practice law without taking the bar exam. The ABA House of Delegates approved diploma privilege as an option for all states for the duration of the pandemic, but only a few states have granted full diploma privilege to recent law graduates from accredited institutions within the state. Supreme courts in other states like Louisiana, Pennsylvania, and Oregon have granted limited diploma privilege to some applicants, but not all law school graduates. Diploma privilege has been a massive weight off law school graduates’ shoulders because they no longer have to worry about the safety risks of taking the bar exam during a pandemic, passing the bar exam, or keeping their job if their state does not make plans for an alternative to the bar exam. Many state Supreme Courts opposed petitions by law graduates and law school faculty for diploma privilege because the purpose of the bar exam is to ensure that lawyers are competent enough to serve their communities. To combat the possibility of admitting incompetent lawyers to the legal profession, some states who offered diploma privilege initiated mandatory mentorship programs that will act as a guard to “ensure the competency and integrity of the newly-admitted attorneys.” Even with measures like mentoring programs, people still believe the bar exam is a necessary barrier into the legal profession that serves the public interest.
The wave of bar exam confusion throughout the summer of 2020 has since resulted in a discussion across the legal academy about the problems with bar exams and what the future of the exam holds. One of the issues brought to the forefront in the states that proctored online exams is the inherent discrimination and disparties that exist with artificial intelligence technology. Women and people of color who have taken the bar exam remotely have expressed concerns of the issues of bias with the artificial intelligence technology used by proctoring services. The ACLU has said that marginalized communities are more likely to experience technical difficulties, have an increased amount of identification checks, and be accused of cheating because of the inherent biases in AI technology. This is because the technology is built using primarily white men as the baseline for facial recognition, so it disproportionately misidentifies facial movements and identity of minorities. Ricardo Sabater, a law school graduate from the University of Chicago, is Puerto Rican and experienced great difficulty with the exam software. He did not know if the failure of the facial recognition was due to his ethnicity, but this could be a likely explanation. Sabater also reported his computer crashing multiple times throughout, which inevitably had an effect on his performance on the exam. Technical difficulties may cause a test taker to easily lose their composure and become increasingly distracted, which may detract from their ability to perform well on the exam. These technological biases will increase the barriers to opportunity that already exist to enter the legal profession, especially for marginalized communities.
Furthermore, the discussion of bias with artificial intelligence has prompted a discussion about the inequities of the bar exam, in terms of its effects on bar takers as well as people who need access to the legal system. Research has shown that the bar exam inherently advantages certain groups and disadvantages others, especially people of color. The legal profession highly underrepresents people of color due to a series of barriers that gatekeep the profession, one example being the bar exam. People of color have historically had lower passing rates of the bar, which can be attributed to the disparities and lack of opportunity given to minorities and other marginalized groups in the law school education system. Additionally, the bar exam is part of an unnecessarily intense regulatory system that contributes to the increased cost of legal services, which, in effect, worsens the crisis of access to justice in the United States. The access to justice gap predominantly affects minorities and marginalized groups. Hence, the bar exam not only disadvantages minorities taking the exam, but also minorities who could benefit from increased opportunity for people to enter the legal academy. Why then has the bar exam not been dismantled? The answer lies mainly in the roots of tradition and the fear of a legal system without the bar exam. The main purpose of the bar exam is to theoretically protect the community from unethical, incompetent lawyers, but the COVID-19 pandemic has brought into question if the founding purpose of the exam is valid any longer. Does the bar exam really protect the community as it intends to? There is no empirical evidence that the bar exam actually protects the public. Although the exam has served as the traditional gatekeeping mechanism into the profession, many legal scholars say there are other ways to ensure the competency of new lawyers. They say that other requirements for admission to the bar such as passing the Multistate Professional Responsibility Examination and having a positive Moral Character and Fitness determination are ways to safeguard the legal system from unqualified attorneys. Other scholars argue that a timed exam is still necessary, but suggest the material on the exam could be changed to apply to more practical legal skills, such as critical thinking and analysis. Although the future of the bar exam remains uncertain, especially with the upcoming bar examinations in February of 2021, the legal academy is finally expanding the complex discussion of the bar exam and is seriously questioning whether it does more harm than good to the legal system in the United States.