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Civil Rights Group Threatens Suit Over Bar Exam Facial Scans

Feb. 10, 2021, 10:44 PM

A prominent civil rights group is threatening to sue the State Bar of California unless it agrees to stop using facial recognition technology to prevent cheating on online bar exams, which the group says discriminates against women and people of color.

“It is by now well-established by experts in that field that FRT is disproportionately inaccurate in identifying women and people of color,” the Lawyers’ Committee for Civil Rights Under Law said in a Feb. 10 letter to California bar officials. “As a result, its use will have an unlawful disparate impact on examinees of color and women examinees.”

The letter, written by a Lawyers’ Committee counsel Noah Baron, also was addressed to ExamSoft, the Califorinia state bar contractor that uses the controversial facial recognition tech in administering the tests.

The group “will be forced to take legal action” if the Bar doesn’t take “immediate steps” to stop using face scans for the upcoming February examination, Baron said.

Facial recognition software has come under attack because it’s been shown to disproportionately misidentify Black and Brown people, Jason Kelley, a strategist at the Electronic Frontier Foundation, a digital civil liberties group, previously told Bloomberg Law.

Several test takers of color reported being shut out of October versions of exam because the tech didn’t recognize them.

Officials with California State Bar and ExamSoft did not immediately respond to questions about the Lawyers’ Committee letter.

ExamSoft doesn’t own the facial recognition software it uses in administering online tests. ExamSoft Chief Executive Officer Sebastian Vos told Bloomberg Law that their are protections in place against potential bias.

“Because a human’s always reviewing that blindly—they have no idea what the AI said—that helps us take away that bias” against test-takers of color, those with disabilities, or those wearing religious garments who may be flagged, Vos said.

In a recent letter to a half-dozen U.S. senators who had expressed similar concerns, Vos denied any major problems, and said ExamSoft has investigated claims of systemic software glitches regarding test takers’ race or gender. “It would be a key priority to resolve any such issues,” he wrote, “but we have found none.”

“When we found out in June of 2020 that the California Supreme Court ordered an online bar administration, we expended significant resources and energy to highlight the differential impact that remote proctoring technology would have on underrepresented communities in the legal profession, particularly on applicants of color, women, and trans applicants, said Pilar Escontrias, co-founder of the group United for Diploma Privilege.

“Sadly, these very real concerns went unaddressed,” she said.

The Lawyers’ Committee represents a successor organization to the diploma privilege group.

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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