After the Covid-19 pandemic forced dozens of bar exams online, states are determined to return the tests to their traditional, in-person formats in 2022.
But a spike in infection rates from the omicron variant may force states to improvise again. If they do, they hope to avoid this year’s technical glitches that put many test takers on edge and prompted lawsuit threats.
“We have never seen anything comparable to the bar-pocalypse of 2020-2021,” said Marsha Griggs, a professor at Washburn University School of Law in Kansas. “It would be a mistake for any jurisdiction to think they can smoothly return to the status quo after the epic failures of the last two years.”
Here’s what happened with the 2021 exams and why states are working so hard to avoid a repeat.
Would-be lawyers in many of the roughly 30 states that administered bar exams remotely reported technical glitches, such as screens going blank in the middle of the tests. The July test marked the third in a row in which some participants said their computers crashed, or that they were otherwise shut out of the exam.
Some even said the flaws prevented them from having a fair shot at passage and caused “devastating” levels of anxiety.
Bar exam software provider ExamSoft issued an apology, with a spokeswoman saying the company was “deeply sorry” for the glitches.
The ExamSoft program wasn’t the only frustration.
In California, hundreds of exam takers were told they were suspected of violating test rules. The supposed violations had been flagged by remote-proctored software during the previous summer’s test.
More than one-third of roughly 9,000 test takers were initially cited for issues that included possible cheating. That number was ultimately slashed to just 47 examinees. Still, many were frustrated that they had been wrongly tagged.
It Was a Privilege
To help would-be lawyers during the pandemic period, more than 1,000 became licensed lawyers last year without ever taking the exam.
It was possible because officials in Washington, Oregon, Utah, Louisiana, and the District of Columbia implemented temporary “emergency diploma privilege” rules.
Threats, Pt. 1
Frustrations around the bar exam prompted strong responses from those who felt they had been wronged.
The Lawyers’ Committee for Civil Rights Under Law in February threatened to sue the California State Bar over its use of facial recognition technology on bar exams.
The group raised concerns that the technology discriminates against women and people of color. The group demanded data from the bar but never followed through on its lawsuit threat.
Threats, Pt. 2
Pennsylvania-based plaintiffs law firm Sauder Schelkopf over the summer began collecting bar examinee names for a possible class action suit—presumably against ExamSoft and state bar groups. A suit has not yet materialized, however.
Change Is Coming?
A National Conference of Bar Examiners task force in January made a series of recommendations for a new bar exam that better reflects “real-world practice and the types of activities newly-licensed lawyers perform.”
Later that month, the examiners approved the task force recommendations, which will take four to five years to be enacted.
The National Conference of Bar Examiners announced in June that the materials it provides to jurisdictions will be for paper-based, in-person tests only for the February 2022 exams. Observers said they believe it could be the beginning of a lasting shift back toward in-person tests.
However, the examiners noted that state or local public health authorities could prohibit bar groups from administering the tests in-person in response to Covid-19.
Cutting It Close
In March, several states confirmed they may follow California’s lead in reducing their bar exam “cut scores.” This is part of an effort to address legal industry diversity issues and bolster access to justice.
California permanently lowered its “cut score” in 2020, spurring changes in the racial make-up of those passing the test.
The state reported spikes in its pass rates in its two most recent tests before the July 2021 exam.
A New York State Bar Association task force said in June the state should withdraw from the Uniform Bar Exam. The panel suggested the state develop its own bar admissions test that focuses more directly on state-specific laws. Such a move would be a blow to the National Conference of Bar Examiners, which helped create the unified exam and has since enlisted most states to adopt it.
Jordan Greenman, a former law student in Arizona who failed that state’s online bar exam in July, petitioned the state supreme court in late October to license him anyway, claiming software flaws kept him from passing the test.
Bar exam watchers said the move may be the first of several other similar petitions to be filed in 2022.