The list of test takers suspected of cheating on California’s first-ever online bar exam has been narrowed to a fraction of the more than 3,000 initially flagged by video technology that monitored them during the test.
Erin Joyce, a Pasadena, Calif.-based attorney, told Bloomberg Law that five of her clients were recently alerted by the State Bar of California that they have been cleared. They were among a group of 432 test takers recently notified that they were suspected of violating bar exam rules.
The additional notifications mean nearly 90% of the 3,190 applicants initially flagged for possible cheating on the October exam — about one-third of all those who sat for it — have now been cleared. The dramatic drop comes as states are finishing plans for administering the next round of bar exams, slated for late February. It also follows criticisms of the tests, which a number of states moved online in response to the coronavirus pandemic, over allegations of cheating as well as glitches in facial recognition software and other technology.
The threat of being branded a cheater, even if they’re ultimately cleared, adds to the burdens faced by test takers who were forced to prepare for the exam in the middle of the pandemic, Joyce said.
“My exonerated clients are very relieved,” said Joyce. “Yet it’s an extra layer of drama that no one needs—especially in 2020.”
Joyce said most test takers are unlikely to take legal action against the California Bar because they were obligated to sign waivers in advance of the exam.
State Bar admissions management staff are now reviewing exam day videos of test takers who were issued a “Chapter 6" notice, according to spokeswoman Teresa Ruano. Those notices will be affirmed if reviewers determine that there is “clear and convincing evidence” that a rules violation occurred, leading to a variety of possible sanctions. Notices will be denied, or thrown out, if there is insufficient evidence.
Applicants whose notices have been denied are being notified on a rolling basis, Ruano said. Applicants who have their Chapter 6 notice affirmed also will receive that notice in writing, along with their corresponding sanction.
The goal is to complete the management review in the first few days of January, before the release of exam results on Jan. 8, Ruano said. She said it’s still unclear whether the state bar will make public the number of test takers who have been sanctioned, out of the 432 who received notices, and the number exonerated.
Applicants who have sanctions imposed for “disputable violations” may request an administrative hearing, Ruano said—and will be entitled to access the video to assist in their preparation of a response. According to a Bar violation Chapter 6 “decisional matrix,” infractions such as possession of notes or other study aids cannot be disputed at a hearing, but others, including typing or writing before the start of the exam, are hearing-eligible.
Applicants involved in this process who scored 1390 or higher on the bar exam will learn of their passing score in the same manner as other applicants, Ruano said. The state Supreme Court in mid-July said it would permanently lower the passing score from 1440 to 1390.
Because of the shortened timeline between the October and February exams, the State Bar will permit those who challenge the finding of a violation or sanction to register for the February exam while the review process is ongoing, she said.