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Bar Exam This Week May Signal End of Remote Tests in Many States

July 26, 2021, 10:00 AM

The run-up to this week’s bar exams across the country has been quieter than at any time since the coronavirus pandemic struck.

Critics of the biannual exam and anxious test takers previously slammed the in-person tests held in some states, citing the risk of infection. They also panned the remote exams certain other states opted for, voicing concerns about facial image and proctoring technology.

Broad coalitions urged that the test be scrapped in favor of diploma privilege, which allows law school grads who meet certain conditions to become licensed without taking or passing the exam. They partially succeeded when several states temporarily allowed the change.

As the next bar exam looms Tuesday and Wednesday in most states, however, test critics are largely on the sidelines.

Some of the tech issues appear to have been rectified, they say—and also, the next round of testing in February likely will be held exclusively in-person, meaning facial IDs will be made by human proctors and not computers. Meanwhile, states have shown little appetite for making diploma privilege permanent, though advocates hold out hope that could change as other types of reforms are implemented.

Still the pandemic has spurred a host of long-simmering legal licensing issues into the open, which aren’t going away. They are highlighted by exam score disparities among different racial groups and the lack of legal industry diversity generally.

“The volume around debates on alternative pathways into the profession has lessened as angst about the virus receded somewhat,” said Aaron Taylor, executive director of the AccessLex Center for Legal Education Excellence, a nonprofit that works to improve access to law school. “But significant discussions are ongoing. The virus has prompted us to think more deeply about issues of fairness and equity.”

On June 1, the National Conference of Bar Examiners announced that bar exam materials for the February 2022 test would be made available to jurisdictions only for paper-based, in-person testing—unless restrictions by public health authorities demand that tests be held remotely again because of Covid.

This week, 28 states, including New York, California, Illinois, and Florida, plus the District of Columbia, are holding their tests remotely, possibly for the last time. The other 22 are hosting their exams in-person.

The National Association for Equity in the Legal Profession recently urged Texas officials to drop plans for its in-person bar exam because of a resurgence of Covid-19 cases. The group also last Friday held a bar exam support meeting for test takers to get tips on what they might expect to see, depending on the state they live in.

There hasn’t been a renewed campaign to implement diploma privilege. Utah, Washington State, Oregon, Louisiana, and Washington, D.C. implemented temporary privilege programs as a response to the health crisis, but each has since re-instituted the exam requirement.

The use of privilege coincided with states reimagining ways to license lawyers to ensure they are competent to practice, grounded in state-specific law, and help make up more racially diverse lawyer pools.

A New York State Bar Association task force recently argued that the state should withdraw from the Uniform Bar Exam, which consists of the multiple choice Multistate Bar Exam, as well as essays and performance tests. Instead, the panel said the state should develop its own bar exam that focuses more directly on state-specific law.

At the same time, the NCBE, which puts together UBE exam materials, has made a series of recommendations for a new bar exam. Its new test—which will take four to five years to finalize—will do away with the Uniform Bar Exam, and will place more emphasis on testing legal skills instead of the ability to memorize portions of the law.

No state has yet contacted NCBE seeking to conduct their February tests remotely because of health concerns, according to Beth Hill, the group’s director of test development, operations, and security.

"(W)e anticipate that the July 2021 exam will be the last one with a remote administration option,” Hill said in a written statement. “Of course, we all know how quickly things can change in the era of COVID-19; but regardless of what the future may hold, we remain committed to supporting the jurisdictions and working with them to ensure that their candidates have the opportunity to take a bar exam.”

Civil Rights Concerns

More change may be afoot as evidence mounts of long-standing disparities between test takers based on race.

A recent American Bar Association survey showed that about 83% of law school graduates passed the bar exam on their first attempt last year. White first-time test takers passed at a rate of 88% in 2020, while 80% of Asians, 78% of Native Americans, 76% of Hispanics and 66% of Black test takers passed.

A prominent civil rights group that has expressed concerns about racial inequities in the legal system has decided to hold off on filing a threatened lawsuit against the State Bar of California over its use of facial imaging technology in its bar exam. A number of test takers of color reported being shut out of different October 2020 bar exams because the technology didn’t recognize them.

“We weren’t able to get the data we need” to feel comfortable filing suit in advance of this week’s California exam, said Noah Baron, counsel with the Lawyers’ Committee for Civil Rights Under Law.

He added, however, that the group is still monitoring the situation and didn’t rule out the possibility that a suit could be filed in the future.

To contact the reporter on this story: Sam Skolnik in Washington at sskolnik@bloomberglaw.com

To contact the editors responsible for this story: Chris Opfer at copfer@bloomberglaw.com; Rebekah Mintzer at rmintzer@bloomberglaw.com

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