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Third of California Online Bar Exams Cited for Possible Cheating

Dec. 22, 2020, 5:36 PM

More than one-third of those who took California’s first online bar exam in October were flagged for possible cheating, based on alerts sent by the test’s software, the state bar said.

Of the 9,301 people who took the entire exam, “we are currently reviewing 3,190 applicants that were flagged,” state bar official Tammy Campbell said during a Dec. 4 meeting of the California Bar’s Committee of Bar Examiners, according to a video recording. Test takers were flagged based on a number of rules infractions, including having food or electronic equipment like a cell phone, as well as behavior like gazing off-screen.

The inquiry, first reported by the ABA Journal, puts test takers flagged by the system at risk of being required to retake the exam, which is typically required before a law school graduate is allowed to work as an attorney in the state. Any review that substantiates widespread cheating also could give critics of bar exams in California and other states further ammunition to promote alternatives like diploma privilege, which allows law school grads to get licensed without taking an exam.

“We believe there were multiple factors that contributed to the number of flagged videos, including the unprecedented nature of this first-ever online remote bar exam and the large and diverse population who took it in California,” state bar spokeswoman Teresa Ruano said. “We will continue to refine and improve this process based on learnings from this first online exam.”

When asked about the large portion of those flagged, Ruano noted that some applicants brought prohibited items like food, drinks or digital clocks into their exam rooms—actions that would have typically been prohibited by a live proctor before test takers enter an in-person exam.

Lawyers for test takers who have been flagged say the widespread cheating allegations are preposterous and an overreaction to behaviors that exam administrators have determined are signs of potential violations of test rules.

Megan Zavieh, a Georgia-based lawyer with offices in California, represents more than two dozen exam takers contacted by the California Bar. She said some clients have received letters accusing them of moving their eyes away from camera range at the wrong moment.

“It’s not only, ‘no, I didn’t do that.’ It’s, ‘I have no idea what you’re talking about,’” Zavieh said.

The bar initially planned to review each of the possible cheating instances by Dec. 18, but Ruano said the review process has not yet been completed.

‘Frightened’ and ‘Angry’

California, like most larger states, shifted from an in-person test in July to an online exam in October because of the coronavirus pandemic. About 96% of California test takers took the test online.

Most of the states that held online tests contracted with Dallas-based ExamSoft to provide software for the remote exam. Artificial intelligence-enabled proctors gained access to test takers’ computers, including their web cams, to monitor behavior as they took the test.

Critics warned that remote proctoring could invade test takers’ privacy and could prove to be overly sensitive to signs of possible cheating.

Ruano said she couldn’t compare allegations of cheating in October to previous such allegations during in-person exams, given that “this information typically has been held confidential in the past.”

So-called “Chapter 6 Notices” of potential violations were sent to numerous test takers after ExamSoft video-file software flagged the conduct to the Bar, according to ABA Journal.

That spurred students to hire lawyers like Zavieh and Pasadena, Calif.-based ethics attorney Erin Joyce.

Joyce said her clients are concerned because of the impact the notices they’ve received might have on their ability to gain permanent or even provisional law licenses—even if they’re ultimately exonerated. “They’re frightened and they’re angry,” she said. “They put a lot of effort and expense into the test.”

Chapter 6 Notices contain allegations that are either “disputable” or “indisputable,” according to a list of frequently-asked questions the Bar posted on its website. A dozen types of alleged infractions are disputable and thus eligible for a hearing, according to a state bar Chapter 6 “Decisional Matrix.”

Indisputable allegations include those in which the test taker possessed notes or other study aids, or electronic devices like cell phones or digital watches. Disputable allegations, which can be contested by a hearing, include having radios or stereos, or “food or beverages, including but not limited to coffee and water,” in exam rooms during a remote-proctored exam.

Any action “taken or not taken based on potential irregularities is solely decided by the client,” said ExamSoft spokeswoman Nici Sandberg in a statement. “ExamSoft never plays a role in adjudicating instances of academic dishonesty.”

Tech Issues

California’s next bar exam, slated for Feb. 23-24, is also scheduled to take place primarily online.

In its Dec. 4 meeting, the Bar Examiners Committee also released data showing that 15% of the roughly 5,300 test takers who responded to a post-exam survey said they encountered technical issues on test day.

By contrast, the Bar panel said that ExamSoft reported that 8% of exam takers contacted the company about tech issues. The company successfully resolved 80% of the cases, the panel said.

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;
John Hughes in Washington at jhughes@bloombergindustry.com

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