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Future Bar Exams and Online Proctoring—Setting the Record Straight

April 21, 2021, 8:01 AM

In response to a recent Insight, we want to clarify how future bar exams will be administered. As widely publicized earlier this year, and as reported by Bloomberg Law, the National Conference of Bar Examiners’ (NCBE) testing task force has made clear that the next generation of the bar exam will be administered in-person on computers and monitored live by on-site proctors.

For reference, “remote” and “online” testing both refer to a method of test administration in which applicants take an exam on their own computers at home (or in another private location, such as a law school or office). Remote testing, as NCBE uses the term, requires an internet connection only at certain times—for example, to enter the exam password and take an identity verification photograph at the beginning of the exam, or to upload exam answer files and monitoring videos at the end of the exam—while online testing requires internet connectivity throughout an exam.

“Computer-based” testing means only that the exam itself can be taken on a computer instead of with paper and pencil. The next generation of the bar exam will be a computer-based test administered either at computer testing centers managed by a suitable vendor or on candidates’ laptops at jurisdiction-managed test sites.

Testing in the Pandemic

Last year, the Covid-19 global pandemic threatened to shutter the entirety of the bar exam for tens of thousands of applicants because of the health risks in many parts of the country associated with being in close quarters for the two-day exam. As a result, NCBE took unprecedented emergency action to minimize the negative impact of the pandemic on recent law graduates to create a path for licensure by offering a remote administration option.

In October 2020, about 28,000 applicants in 20 jurisdictions took advantage of the opportunity to take the bar exam remotely, and another 16,000 did so this past February. The bar exam will be offered remotely at least one more time in July of this year, when applicants in 22 jurisdictions will again have this opportunity for licensure. If the threat of the virus is behind us by the end of the year, as we all hope it will be, the July remote administration may be the last.

Facial Recognition

We believe the previous Insight conflated facial recognition technology and facial image matching. Facial recognition is not used as part of the remote bar exam process.

Facial recognition is a technology used often by law enforcement, where a camera captures a face and compares it to a database of known faces. ExamSoft, the vendor that administers the remote bar exam on behalf of the jurisdictions, uses facial image matching, which compares one photo of an applicant to another one that the applicant previously submitted, making the error rate extremely low.

Facial image matching is used only to confirm candidates’ identities before the exam, not during the exam itself. ExamSoft has clarified that it does not use facial recognition technology for the bar exam and has published a paper on the difference between facial recognition and facial image matching.

It is untrue that some applicants have been prevented from starting the exam because of facial image matching problems. ExamSoft has confirmed with us that of the 44,000 examinees who tested during the two remote administrations, no examinees were prevented from accessing the test on the exam days because of ExamSoft’s facial image matching procedure.

ExamSoft also confirmed that its testing software, Examplify, which is used for the bar exam, is used in over 150 U.S. law schools for computer-based testing.

The reality is that the two remote administrations of the bar exam in October 2020 and February 2021 successfully achieved their goal of providing emergency relief to candidates, courts, and jurisdictions during the global Covid-19 pandemic. NCBE has always been committed to producing a bar exam that fairly assesses all candidates, and that commitment continues.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Author Information

Hulett H. Askew is the chair of the board of trustees of the National Conference of Bar Examiners.

Judith A. Gundersen is the president and CEO of the NCBE.

Suzanne K. Richards is a member and chair-elect of the board of trustees of the NCBE.

Hon. Cynthia L. Martin is the chair of NCBE’s testing task force and implementation steering committee.

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