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California Court Pressed for Last-Minute Bar Exam Alternatives

Sept. 29, 2020, 11:13 PM

A group of law school graduates in California is taking another shot at getting changes to the state’s bar exam in the final days before lawyers in training are scheduled to sit for the online test.

The petitioners, affiliated with the group United for Diploma Privilege, on Tuesday asked the state’s highest court to scrap the test and expand a new program allowing graduates to get a limited law license. They want the court to make the exam an open book, “take-home” test in the event that the provisional licensing changes are not adopted.

The exam, set for Oct. 5-6, was postponed and moved online in response to concerns stemming from the coronavirus pandemic.

California State Bar trustees last week approved a provisional licensing program that will serve as a temporary measure for law school graduates who haven’t yet passed a bar exam but wish to practice until the program ends in June of 2022. Participants will need to pass the bar after the program ends to stay licensed.

The group filing the waiver request argued that several restrictions on the program would unfairly limit provisional licenses. The program should be broadened to include all examinees, rather than just class of 2020 graduates, they wrote.

The filing in California follows earlier petitions in that state and several other jurisdictions, including New York and Washington D.C., in which law grads have asked courts to grant diploma privilege—which would allow grads who meet certain conditions to receive law licenses without ever taking the bar. D.C. recently adopted a limited form diploma privilege, but the effort has failed in most cases despite concerns that the online bar easily could fail because of tech issues.

“The numerous, recent attempts to administer similar online, high-stakes bar exams using AI technology utterly failed,” the group said in the waiver request, “proving there is an unjustifiable risk of harm created by administering remote exams that far exceeds the benefits derived or protections gained by the public.”

A few other states have opted for open-book tests because of concerns that have arisen about test-taker privacy and the technical reliability of remotely proctored exams in which people, and artificial intelligence-enabled software, monitor examinees through webcams.

The waiver request was filed by two class of 2020 law school graduates, Britteny Leyva and Evan Schweitzer. Pilar Escontrias, a co-founder of the group United for Diploma Privilege, helped write and research the petition.

The waiver request argues that open-book tests, which Indiana and Nevada already administered this year, are preferable to proctored exams in part because remote proctoring software could encounter repeated and unforeseen problems.

The California Supreme Court on Sept. 23 rejected a request to grant diploma privilege, the second time it found against similar proposals in the last few months.

The idea of an open-book exam instead of a remote-proctored test has found prominent backing from a group of California’s law school deans. On Sept. 14, the group wrote the California Supreme Court, urging it to remain aware of just how stressful the tests are—even in standard, non-pandemic years.

The situation this year “is dramatically different,” the letter said. “We still are in the midst of the Covid-19 pandemic which has affected many of our graduates and their families. Many are dislocated by the fires and adversely affected by the smoke. We are in the midst of a national reckoning with racism and anti-Blackness. Administering the exam without remote proctoring and in an open book manner would decrease the stress for many taking the bar.”

To contact the reporter on this story: Sam Skolnik in Washington at

To contact the editors responsible for this story: Chris Opfer at;