The Covid-19 crisis demands a new system for attorney licensing.
Traditionally, this system has been the bar exam. An arduous rite of passage, the exam has long faced criticism for its discriminatory impact and questionable usefulness in assessing competence. To date, however, the exam has seemed impervious to debate – remaining fully entrenched in our licensing scheme.
Casting valid concerns aside to favor tradition is problematic enough under non-pandemic circumstances. Doing so now is chaotic and harmful to thousands of graduates. COVID-19 has given stark new clarity to the very human cost of administering a bar exam in 2020: making a new method of certification an urgent, necessary form of disaster relief for prospective test takers.
Ongoing Confusion for Stressed Examinees
In New York, the Court of Appeals and Board of Law Examiners’ reticence to explore a different approach has caused devastating repercussions for examinees. After deciding to cancel the July bar exam in March, they clung to the mirage of a live September exam, despite Covid-19’s ongoing spread.
Candidates struggled to unpack inconsistent, haphazard seating policies that deprioritized out-of-state graduates and repeat takers. The Court of Appeals assured the public that appropriate testing arrangements were in place, but provided no concrete logistical details. In an attempt to navigate these challenges, some examinees followed the Court of Appeals’ explicit suggestion to register in other UBE states—a solution that proved largely useless when those jurisdictions (for example, Washington D.C.) altered bar exam requirements and score transferability.
As a member of United for Diploma Privilege New York, I have seen how resistance to new licensing measures has compounded suffering during an already-disastrous pandemic.
On July 3, we launched an online petition and examinee impact survey that garnered 1,870 total responses from New York-bound examinees. These responses revealed examinees’ excruciating circumstances—immunocompromised cancer patients working full-time while studying, to avoid losing their health insurance; parents grappling to manage young children in the absence of operating schools and daycares; Covid-19 survivors struggling to handle rigorous study schedules during tenuous, slow-moving recoveries; emotionally-exhausted graduates serving as caregivers for loved ones who had contracted the virus; disabled candidates fighting to meet stringent requirements for accommodations requests that, in the context of a global health crisis, were unduly burdensome (if not utterly infeasible).
Financial insecurity was a constant stressor for many respondents—and exacerbated when employers pushed start dates back into 2021 (or canceled them altogether). Though the Court of Appeals attempted to mitigate financial ramifications by creating a temporary practice program (allowing graduates to work under supervision until they could take the bar), this measure proved devoid of practical relief. Employers simply continued to delay start dates to reflect bar exam changes, as well as fund examinees’ efforts to test in other jurisdictions.
More than three months after announcing the September in-person bar exam, the Court of Appeals canceled it without an alternative. This should have ended further attempts to administer it. The Court of Appeals has already admitted that a remote exam is unworkable—stating that “inevitably, any remote exam will be accompanied by security risks that cannot be completely mitigated,” and that online testing formats “have been marked by widespread confusion, debilitating technological glitches, and allegations of compromised exam results.”
The New York State Bar Association has voiced similar concerns, noting that not all test-takers “have the necessary internet access and quiet locations … for test taking” amid a global health crisis. This issue was confirmed by our coalition’s survey, which revealed that over 500 respondents did not have access to a quiet place for an online exam, and almost 800 lacked reliable internet.
Online exams are also rife with privacy implications, have challenges for disabled examinees, and have just recently showcased a host of alarming technical difficulties. Lately, in fact, problems seem par for the course for online exams—the LSAC lost an estimated 140 scores from its online “LSAT Flex;” the Michigan bar exam was the target of a cyber attack (prompting requests for federal agency investigation); the Nevada and Indiana bar exams were postponed due to faulty software (Indiana made its exam open-book, via email); and one exam vendor, Extegrity, has declined to host the online bar exam altogether, citing “undue risk.”
It is unclear, therefore, why the court ultimately chose to approve the online exam it had previously rejected. Our data and experiences—as well as the courts’ own words—have already indicated that it is not the “sound alternative” this moment requires.
ABA Resolution and New York Legislation
Fortunately, a recent ABA resolution endorses emergency licensing measures, a growing number of states are embracing them, and one has already been presented in pending New York state legislation. This legislation (introduced by Sen. Brad Hoylman and Assemblywoman Jo Anne Simon) creates a form of “diploma privilege,” allowing qualified graduates of ABA-accredited institutions to become licensed after completing an apprenticeship period (for more details on the bill, see our team’s fact sheet).
This would be a far superior measure of competence than beta-testing an online exam, and would allow graduates to alleviate their financial hardship and help their communities by offering much-needed legal services.
It is my hope that the coming weeks will bring increased support for this legislation. Challenging times should inspire us to develop innovative, empathetic solutions. Let’s not run from them now.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Elizabeth Gil is a recent graduate of Duke University School of Law. She is a member of United for Diploma Privilege New York and studying for the bar exam while advocating for safe, alternative licensing measures for incoming attorneys. Follow her on Twitter: @lizcgil.