Britni Prybol graduated from law school in North Carolina in May, eager to start a career as a patent attorney. But she isn’t taking the state’s bar exam held on July 28 and 29. The two-time cancer survivor, who’s still getting hormonal chemotherapy treatment, feared that sitting in the same place for two days with hundreds of other test-takers would put her at risk of contracting the coronavirus and potentially spreading it to her husband and 7-year-old son.
“We keep thinking North Carolina will do the right thing,” says Prybol, referring to calls to move the test online or offer temporary law licenses during the pandemic. “It’s been so disheartening. It’s made me question why I went to law school if this profession is going to treat its newest members this way.”
A total of 23 states, including North Carolina, are going ahead with in-person bar exams the last week of July, even as cases of Covid-19 rise across the country. At least eight states require test-takers to sign waivers agreeing not to sue if they’re hospitalized from the disease. Other states, such as New York, California, and Illinois, have moved the test online, while several are tinkering with a provisional licensing system that would allow law school graduates to work as an attorney under supervision prior to passing the bar.
“It’s baffling and dispiriting that some states are defiant” about delaying their in-person exams, despite the clear health risks, says Daniel Rodriguez, a professor at the Northwestern University Pritzker School of Law. “It’s been a real mess. The disconformity disserves us.”
The state-by-state disarray affects roughly 45,000
State licensing agencies are trying to strike a balance between ensuring that newly licensed lawyers are at least minimally competent and the unprecedented public-health concerns facing test-takers this year. They’ve adopted safety measures such as checking temperatures and increasing the distance between test-takers. Many administrators believe that in-person tests, with everyone in the same room at the same time, are the most secure and reduce the chances of cheating.
But critics say bar exam authorities were woefully unprepared for the pandemic. “There are a number of words I would use, and none of them are kind,” says Donna Saadati-Soto, a Harvard Law School grad who’s among those leading the push for “diploma privilege,” an option to license law school grads that wouldn’t require them to take and pass the bar. “Inept. Incompetent. Careless. Reckless. You know, they’re not the ones whose lives will be put at risk” by taking in-person exams, she says. Saadati-Soto plans to take California’s online exam in October.
The option of diploma privilege, long allowed in Wisconsin, has also been adopted in Utah, Washington, Oregon, and most recently Louisiana. Privilege advocates say the bar exam is outmoded and isn’t a fair test of legal competency anyway, with an emphasis on arcane knowledge. They argue that the test process, with weeks of preparation often needed to pass, inherently discriminates against poorer candidates who cannot afford expensive prep courses or to put off earning income for a long period. These problems affect candidates of color disproportionately, they say.
Aaron Taylor, executive director of the AccessLex Center for Legal Education Excellence in Washington, D.C., a nonprofit that works to improve access to law school, says “chaotic” might be the word best used to describe how bar exams are being administered this year. “But I’m looking at this maybe as favorable chaos,” he says, thinking that it might spur states to reconsider how, or even if, bar exams should be administered going forward.
Many supporters of the bar exam agree the test could be made more relevant to practice. But they argue that the test is a necessary gauge of an attorney’s skill set and that without it industry standards would suffer, hurting clients and the public.
If states aren’t going to scrap the exam altogether, privilege proponents argue, they should at least cancel in-person tests. Thirteen states plan to hold an in-person exam in September or October. At least 22 states are planning online exams in August through October; some states are offering multiple dates and modes of testing.
Officials in arguably the most important “Big Law” state,
Smaller states are struggling with different issues. West Virginia, which was expecting fewer than 175 exam-takers for its two-day test at the Charleston Coliseum & Convention Center, hasn’t asked applicants to sign waivers. But its policy on masks causes other concerns. Although test-takers were asked to bring them—and wear them if possible—they were also told they didn’t need to wear them if it interfered with their ability to take the test, says West Virginia Judiciary spokeswoman Jennifer Bundy. The hall used is large enough to allow for extra distance between test-takers, she says.
For Prybol in North Carolina, hope for change—including perhaps allowing for an online test in addition to the in-person exam there, or a diploma privilege option—now hangs with the state legislature. She says several legislators have expressed sympathy with test-takers’ plights and may be prepared to act. “We’re hopeful,” Prybol says, “but we know there are no promises.”
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