The experiences with bar exams across the country this summer should provide the impetus for rethinking how states determine who is eligible for admission to the bar.
Taking a bar exam even under the best of circumstances is daunting. But 2020 has been a nightmare for students. Many have had Covid-19 or have had to deal with ill family members. Our country is in the midst of a long overdue reckoning with racism. All of which puts enormous strain on our graduates and especially our students of color.
Amid all of this, states have been uncertain about when and how they are administering their bar exams. Many states are planning for an online bar exam on Oct. 5-6, but it is uncertain whether the technology will allow this. The experience in states that have tried online exams does not breed confidence that the approach will work.
What lessons are to be learned from the experience so far? One is that it is unconscionable to administer in-person exams in a pandemic. On July 28-29, law graduates in many of the states put their health unnecessarily at risk to take an in-person bar exam where they were together in a room for many hours. On Aug. 8-9, another part of the bar exam, the Multistate Professional Responsibility Exam, was administered at in-person test sites around the country to about 16,000 people.
Irresponsible to Hold Exams
Holding in-person exams when the Covid-19 pandemic was surging was terribly irresponsible. The National Conference of Bar Examiners could have put a stop to this, but it insisted on going forward with in-person exams. If the NCBE declined to provide the parts of the bar exam used in states across the country for a live bar exam, none would have occurred any place in the country.
It is the NCBE that administers the Multistate Professional Responsibility Exam. In mid-July, more than 80 law school deans wrote the NCBE asking it to not give an in-person MPRE and shift to an online exam. It flatly refused.
States also bear responsibility. They should have provided diploma privilege or at least provisional licenses to those who were scheduled to take the summer 2020 bar exam. Diploma privilege is permanent admission to the bar to those who met other eligibility requirements. A few states—Louisiana, Oregon, Utah, and Washington have created diploma privilege for this year’s graduates. In Oregon and Utah, it is for those who graduated from law schools with higher than an 86% pass rate on last summer’s bar exam.
Provisional Licenses Granted in California
On July 2, the deans of California’s ABA-accredited law schools unanimously recommended diploma privilege to the California Supreme Court. It declined this request. Diploma privilege would be particularly challenging in California because of the presence of unaccredited and California-accredited law schools, almost all of which have bar pass rates below 20%. Either the California Supreme Court would have needed to draw lines among law schools, something it has traditionally been reluctant to do, or it would had to accord permanent admission to the bar to many who never would be admitted. In light of this, the California Supreme Court decided against diploma privilege.
But it did create provisional licenses for those who graduated this spring to allow practice under supervision for up to two years without passing the bar. It also permanently lowered the passing score. Provisional licenses make great sense in this context and are being created by a number of states. All should do so under these circumstances.
Open or Closed Book?
The crisis also should provide a basis for thinking about how the bar exam is administered and structured. Does it need to be a closed book exam, which is the traditional way it has been given? Indiana and Nevada recently administered online, open book bar exams. There are many virtues of this. Remote proctoring for a closed book bar exam is intrusive and daunting. California has created rules, like no more than one person in a room no matter how large the room, that limit the ability of law schools to provide space for those who do not have a safe place with stable internet to take the bar exam. The rules, such as no visible books or food, are difficult for those who live in small apartments.
More important, I never have understood the point of a closed book exam. If it is open-book, rarely do students have time to look up answers. But even if they do, I don’t see the problem. Lawyers generally do not have to answer questions from memory. A closed book exam stresses memorization, which is hardly the most important skill to measure when determining who should be a lawyer.
The time is ripe to rethink what the bar exam measures and whether it is testing the right skills. I never have understood why memorizing the rule against perpetuities for the bar exam measured anything relevant to assessing my capacity to be a lawyer.
I once heard it remarked that no crisis should go wasted. The many crises of 2020 should be an opportunity for rethinking how the bar exam should be given in emergency circumstances and most of all, how we should test competence for being a lawyer.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Erwin Chemerinsky is the dean of Berkeley Law and the Jesse H. Choper Distinguished Professor of Law. Prior to that he was the founding dean and distinguished professor of law, and Raymond Pryke Professor of First Amendment Law, at the University of California, Irvine School of Law.