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Lawyers’ Committee Delays Suit Over Bar Exam Face Scan Software

Feb. 22, 2021, 7:41 PM

A prominent civil rights group is delaying its threatened lawsuit against the State Bar of California claiming the use of facial recognition technology in its remote bar exam has the effect of discriminating against people of color.

The Lawyers’ Committee for Civil Rights Under Law recently suggested it would file suit in advance of the latest remote bar exam to be held Tuesday and Wednesday, but decided to hold off until it receives detailed data from the Bar. This information is set to include exam passage rates by race, which could bolster the committee’s case.

Instead, the group is considering filing suit sometime before the more popular July bar exam, which typically draws thousands of recent law school graduates.

“We want to have as much data on this as we can get,” said Lawyers’ Committee counsel Noah Baron.

Facial recognition software used by some states for remote bar exams due to Covid-19 has come under attack because it’s been shown to disproportionately misidentify Black and Brown examinees. Several test takers of color reported being shut out of different October bar exams because the tech didn’t “recognize” them.

“The Lawyers’ Committee remains committed to ensuring that the California bar exam is administered in an equitable manner without any disparate impact on examinees of color,” Baron said in a subsequent written statement. “We were hopeful that the State Bar would honor its commitment to diversity in the legal profession by discontinuing use of FRT prior to the February exam. Unfortunately, it has chosen not to do so.”

A Feb.10 letter from Baron to California bar officials and ExamSoft, the bar contractor that uses FRT, argued that there are viable alternatives to remote proctored exams that rely on face scans, including the solutions devised by Nevada and Louisiana, which changed to an “open book” format for the exam.

The group threatened to take legal action—which could have included an injunction to stop the bar from administering the test—if the Bar didn’t take “immediate steps” to avoid the use of face scans for this week’s test.

In response, California State Bar official James Chang said in a Feb. 16 letter that civil rights group’s demand discussed facial recognition technology “in only the most general terms and in other inapplicable contexts. It does not set forth how you believe the State Bar’s limited use of facial recognition for identity verification results in ‘unlawful disparate impact on examinees of color and women examinees.’”

ExamSoft CEO Sebastian Vos has said there are protections in place to protect against bias. In a recent letter to a half-dozen U.S. senators, he said the company has looked into claims that software glitches have adversely impacted test takers based on race or gender but “found none.”

Baron said his group has not yet decided whether it will pursue action in other states that use the same tech in its bar exams.

Meanwhile, Texas officials are saying that state’s online bar exam on Tuesday and Wednesday will proceed as planned, despite the devastating winter storm that recently left thousands in the state without power or potable water.

The Texas Board of Law Examiners informed test takers last week that the test will proceed, though it announced that it also plans to offer a make-up exam in the coming weeks, if its plan gains approval.

Officials noted that any score earned on the make-up exam could only be used for admission in Texas, and wouldn’t be transferable to other jurisdictions.

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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