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Law School Grads, Legislators Say N.Y. Online Bar Exam Risky

Aug. 18, 2020, 9:08 PM

Law school graduates, professors, and state legislators urged New York bar exam authorities to consider veering away from the state’s planned October online test.

About a dozen speakers at a virtual hearing on Tuesday called on the New York Court of Appeals and the state’s Board of Law Examiners to reconsider plans in light of repeated technical issues other states have encountered, and the disproportionate, real-life impacts they say the test is having on poorer graduates and those of color.

The hearing was sponsored by N.Y. state Sen. Brad Hoylman and Assemblywoman Jo Anne Simon. The Democrats have co-sponsored bills to institute diploma privilege, which would allow law school grads to become licensed attorneys without taking the bar.

One bill mandates that grads practice law for a minimum of 100 hours “under the supervision of a permanently admitted attorney” before they can be licensed. That proposal is still in committee, according to a legislature website.

Public advocacy campaigns have sprouted in New York and other states that support it as the fairest and most efficient answer for law school grads and legal employers in a field upended by Covid-19.

“New York’s grads are in limbo, and nobody really knows for how long,” said Simon. “Right now, nothing is foreseeable.”

The hearing came a day after the N.Y. Board of Law Examiners announced that New York would join a reciprocity agreement with eight states plus the District of Columbia. Such multi-state pacts will allow those who pass the online exam in one of those places, in this case New York, to practice in the others, so long as conditions are met.

Some test takers looking to practice in multiple jurisdictions may view this as good news, given that the online exam’s lack of score portability has been another source of concern with the test. The states in question include Connecticut, Maryland, Massachusetts, New Hampshire, New Jersey, Ohio, Tennessee, and Vermont, according to the BOLE website.

Technical challenges with online bar exams were a recurring theme of the hearing. Several states have attempted online tests, but none to date has gone off without at least minor tech glitches. Florida and some other states most recently canceled online exams because they felt the process was technologically unfeasible.

“Relying on an online exam in New York is both risky and unfair,” said Cornell Law School Dean Eduardo Penalver. Both the delays and additional costs associated with taking an October exam are especially harmful to poorer test takers, he said. It was an assertion backed by more than one recent law school grad who also attended the hearing.

“There’s no equitable way to administer this test,” said Kayla Smith, a recent Brooklyn Law School graduate who is a staff attorney with New York County Defender Services.

Disabled test takers and those of color are more likely to be flagged for possible cheating as are less affluent test takers whose Internet connections may not work well, she said.

Similar issues were raised in a recent report sponsored by the National Disabled Law Students Association.

Like bar exam administrators in other states, officials in New York have changed their minds more than once regarding how they should proceed.

First, the state moved its in-person exam set for late July to September. Then, on July 16, officials canceled the in-person test, acknowledging, as other states have, the health and safety risks of trying to jam hundreds of test takers in large rooms for hours at a stretch.

A week later, the state joined others in opting for an online exam to be conducted Oct. 5-6, with the content created by the National Conference of Bar Examiners.

Also in late July, a group of more than 300 New York-based law school professors signed on to the push for diploma privilege, saying that their former students are “practice ready,” and that privilege “is the most humane response.”

Hoylman said New York Board of Law Examiners declined to attend the hearing.

In response to questions to New York Court of Appeals Chief Judge Janet DiFiore, and to the board, court spokesman Lucian Chalfen said that “While we have no idea what caused the particular technical issues with exams in other states, what they were or why they happened, I am sure the Board will be looking into those issues as well as any others that may come up.”

To contact the reporter on this story: Sam Skolnik in Washington at sskolnik@bloomberglaw.com

To contact the editors responsible for this story: Rebekah Mintzer at rmintzer@bloomberglaw.com; Chris Opfer at copfer@bloomberglaw.com

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