Bar Exams in the Pandemic JURIST Digital Scholars
The Life of a Disabled Bar Examinee

Editor’s Note: This article has been updated at the author’s request to reflect that the University of Miami School of Law Dean referenced is Dean Janet Stearns and that other students have come forward with similar experiences with her.

I woke up on June 22, 2020 on what I expected to be the worst day of my life at 4 a.m. I took a shower and put on my Kansas City Chiefs’ mask and limped to my car. My mom dropped me off at the Heart Institute at Mount Sinai Hospital in Miami Beach, Florida. It was the morning of my long-awaited testicular nerve surgery. I was initially supposed to have the surgery after I took the California Bar Exam in February 2020 and graduated with my LL.M. in Entertainment, Arts, & Sports in May 2020. However, the surgery was postponed indefinitely due to the COVID-19 nationwide shutdown. For months, I agonized in pain without any contact with my urologist. His office was closed and I was unable to get ahold of him. Some nights I would curl up in a ball in the fetal position. Other times I could not take the pain anymore and I was taken to the emergency room. This was supposed to be the day my pain would start to improve after years of suffering. I was also unrelatedly passing up to five kidney stones per month.

The surgical admission process was unusual. I was in a different building than where the surgery would typically occur because the main hospital was filled with COVID-19 patients. I was required to arrive by 5 a.m. to take a COVID-19 test. After the test, I was separated in a ballroom with dozens of other operation-ready patients. I had to wait for my negative test to be cleared for my surgery. While I waited, I was required to fill out a living will. I had to have been at least thirty years younger than any other patient. I am only twenty-four.

As I sat in the ballroom, I flipped through my bar exam preparation flash cards. My bar coach, an employee of the University of Miami School of Law, was already telling me I was behind on my studying and was pressuring me to get ahead. Once I received my negative COVID-19 test hours later, I was led down a long hallway and up an elevator. I arrived at my hospital bed, a familiar place in my life. I have spent over 100 nights sleeping in hospital beds since I was thirteen years old with numerous autoimmune disorders.

This protocol was different. I was told that I was not allowed to take my mask off, not even during the surgery itself. I dressed in my gown. Everything happened quickly. The doctors wanted patients in and out as quickly as possible. They had me put everything, including my phone, in a sanitized bag and took it away. I was given my I.V. and rolled away within minutes of arriving upstairs.

After my surgery, my doctor explained to me that I may need to have two more surgeries in the future. I was taken out in a wheelchair almost immediately still feeling the anesthesia. My mom was waiting for me in the circle drive and helped me get in the passenger seat of my car. I do not remember the drive back to the hotel.

After a long nap, I woke up and did what I had to every day, no matter how much pain I was in. I opened my bar studying course, Themis, and started my module on federal criminal procedure. By this time it was around 9 PM, and my mother received a phone call from my lifelong best friend’s mother. She told me who was calling and answered. Within seconds, she screamed and fell to the floor. It was a sound I will never forget hearing. I limped out of my bed and took the phone that slipped from her hands. I spoke to his mother. She told me her son, Joseph Alexander Kolega, had passed away. He was twenty-three years old, the amount of time I had known him.

I kept my composure and tried to keep his mother calm. I was a brother-figure to Joe, often trusted to take care of him since he was a year younger than me growing up as neighbors. Talking to a freshly grieving mother who has lost her child is a draining experience that I wish upon no one, but all I could manage to say was that I loved him and gave my condolences.

I grabbed my COVID-19 mask, limped out the hotel door, waited until I was out of earshot of the hotel room, and punched the wall, and let out a scream. I walked down to the lobby to call his other closest friends to break the horrible news. After a few phone calls, I looked down and noticed my scar on my groin was bleeding through my shorts. I walked too far. I limped my way back to my hotel room and started studying federal criminal procedure while processing that I would have to spend the rest of my life without a member of my wedding party. I realized I would not even be able to attend his funeral in Kansas because of my recovery.

Days later, my bar coach from the University of Miami reached out to me to ask how my studying was going. I told him that I was a little behind because my best friend died and my recovery was not going as smoothly as anticipated. I was still in exponential pain and was trying to study on pain medicine as best as I could. He stated the following after telling me he no longer had any advice for me studying for the exam via text message:

…I just do worry a bit about COVID safety at the site. To me, it’s a risk/benefit analysis. If you’re confident of success, it may be worth the risk. This is starting to feel like a gamble, and that makes me antsy this year in particular.

I felt helpless. This was the second time that the employee from my law school in charge of our bar exam studying program had told me to not take the exam. It immediately occurred to me: if law school employees are worried about my compromised immune system during COVID-19, why is anyone with a compromised immune system or disability taking this exam in person?

The Florida Board of Bar Examiners (“FBBE”) had remained mostly silent since their assertion that the bar exam would go on in late July as planned without an alternative. This initial decision was announced in May despite twelve Florida law school Deans submitting alternatives to take the exam. Instead, the FBBE came up with their own alternative to “accommodate” law graduates during the coronavirus: administer the test in two locations instead of one. The test will be taken in late July at the Orange County Convention Center in Orlando and the Tampa Convention Center in Tampa. The Orange County Convention Center will hold as many as 2,200 law graduates inside, with most test-takers using discounted rates to stay in the same hotels.

Meanwhile, statistically, Orlando and Tampa were two extremely problematic communities for COVID-19. Our entire state is under crisis, and those of us who have weakened immune systems have a right to be concerned for our safety. An autoimmune disease is a condition in which your immune system mistakenly attacks your body. Immune deficiency diseases decrease the body’s ability to fight invaders, causing vulnerability to infections and viruses. There are several diseases and procedures that cause one to be immunocompromised, and thus more susceptible to COVID-19 according to the Centers for Disease Control and Prevention (“CDC”). Compromised immune systems can also exacerbate COVID-19 symptoms, leading to dire consequences.

Many law graduates who are immunocompromised like me were now faced with a difficult decision: take the bar exam in person in Orlando (or Tampa) at the life-threatening risk of contracting COVID-19, or wait until at least February to take the exam to qualify to become an attorney in Florida. Taking this exam in such a crowded location in a hotbed city for COVID-19 directly contradicted the advice of not only my personal doctors but also the CDC. However, FBBE executive director Michele Gavagni ignored these concerns despite her assertion that the Board has worked closely with the Florida Department of Health.

According to an article in Law360, in which I expressed these concerns,

…when asked about test takers like Carver who have compromised immune systems, Gavagni said there is no remote option for them to take the exam, but she said those who have medical issues can fill out a form on the Board of Bar Examiners’ website and will be provided a separate room at the test site, if there are enough individual rooms to make that possible.

But we were still to be in the same building as the other 2,200 test-takers. We had to stay in the same hotels. We would have had to interact with staff. And most of all, we were being forced to go in public, specifically in Orlando and Tampa.

Ms. Gavagni hid behind the premise that separating us from the other test takers is enough when she is forgetting that we can get each other sick. Immunocompromised test-takers are more likely to both contract the disease, so it would make sense that if one of us has it in the room, we were all at significant risk. Even if we took the exam in a room by ourselves, there would be no way to eliminate human contact in two cities with significant COVID-19 increases. By merely making us travel to take an in-person exam, Ms. Gavagni was directly contradicting the advice of the CDC and my own doctors and therefore potentially putting our health in danger. That was until a group of brave students and I spoke up.

It took just one Tweet for direct messages to flood in from other disabled students, many of whom feared for their lives. The message that bothered me most was a law graduate who had recently received a kidney transplant and was taking immune-suppressant medications, leaving him immunocompromised. Other students who messaged me had serious disabilities such as cerebral palsy and multiple sclerosis but were too afraid of repercussions from the FBBE to speak publicly. After spending days advocating for an online exam through creating a petition and social media, through the help of a pro bono attorney, I officially sent a notice asking for further accommodations of an off-site exam. An hour after uploading a PDF copy of the notice on the Florida Bar Exam portal, the Florida Supreme Court surprisingly announced that they would push the exam back to late August and announced that it would now only include Florida state material and would be administered online.

This felt for a short period like a victory, but then I realized that all of the material I had studied, the Multi-State portion of the exam, was now useless. Specifically, Federal Civil Procedure would no longer be on the exam, which was the topic I spent the night of my life-long best friend’s death studying. I would have to completely change my studying strategy.

Florida test-takers are lucky in comparison to other states. I kept receiving direct messages on Twitter from students all over the country who were immunocompromised or disabled. One woman, in particular, Britni Prybol, is a two-time cancer survivor who has a severely weakened immune system. She wrote to the North Carolina Board of Law Examiners asking for an online exam and received a disturbing letter from Board member John N. Fountain in return. The letter ended with,

It is important that you minimize distractions and focus on the upcoming examination as are the other candidates. Your most recent email raises a number of questions as to future decisions or the rationale of past decisions by the Board. This is not the occasion for a policy debate.

When a two-time cancer-survivor has to choose between taking an examination to become an attorney to provide for her son and risk her life or remain unemployed, it is time for a “policy discussion.” This was not the only letter Mr. Fountain wrote to concerned test-takers. I decided I would not rest until that policy discussion was had in every state in the country, because the more direct messages I read, the more I realized that people across the country were being forced to make this choice involving risking their lives to work as attorneys after three or more years of daunting law school work.

I feel that I have failed in my task to help save the lives of disabled and immunocompromised test-takers, as twenty-three states are still holding in-person exams without a remote test-taking option. They are putting not only the lives of disabled students at risk, but they are also putting their local communities at risk by holding gatherings of hundreds of students. Some of these students have admitted to me via direct messages, as well as publicly on Reddit, that they are planning to use steroid medications and Tylenol to beat COVID-19 temperature tests on the dates of their examinations.

Also frustrating are the states which have opted for confusing alternatives for the in-person examinations. Some states, such as California, are offering the option to allow temporary attorney licensing while requiring these test-takers to take the test within a certain time period. This will require those attorneys to take a hiatus from their respective jobs to study from the exam all over again, repay for bar preparation courses, or work while studying for an examination that most students take out “bar loans” to supplement their studying periods just to learn the excess material required to pass. Employers are less likely to hire an attorney who will have to stop working to study for their exam or spend less time focusing on taking the examination. But the heaviest contradiction is that these bar examinations are meant to determine “minimal competency” to practice law. How does it make sense to let law graduates temporarily practice if they are not “minimally competent” and then go back and retake the test that determines such competency?

The answer is that the bar examination does not determine minimum competency at all, as outlined brilliantly in this Washington Post op-ed. There are no available studies that indicate any correlation between the bar exam and minimum competency. In fact, the National Conference of Bar Examiners is headquartered in Wisconsin, which is run by a President who did not take the bar exam herself in a state that has offered diploma privilege for several years.

Diploma privilege is a method for lawyers to be admitted to the bar without taking a bar examination. This makes sense if state bars and Supreme Courts trust that their accredited law schools are graduating students with law degrees who are minimally competent. If not, why did we pay hundreds of thousands of dollars in tuition? 

The NCBE and law school deans around the country have remained silent on the issue of diploma privilege, hiding behind the idea that the bar examination is a “right of passage.” The issue is, during a national epidemic in which almost 3.6 million people have been diagnosed with COVID-19 and 138,255 patients have died as a result, this right of passage is wrong. In-person exams will threaten the lives of those with special conditions, both in their testing centers with thousands of test-takers in one location and then spread to those within their communities and in their homes. State Supreme Courts such as Illinois have denied such accommodations, and the result might mean that people with disabilities such as mine, or worse, will likely contract COVID-19 as a result. Some test-takers logistically might die in their quest to become employed as attorneys. Their alternative is to wait until at least next February to take the test in the next cycle and wait another month for the results. Most test-takers need to pay off their rent and student loans and do not have a financially feasible alternative other than to take this bar exam.

As for me, I will be taking two bar exams this cycle: California, which the California Supreme Court moved to my birthday in October instead of granting the full diploma privilege that was backed by members of the California Board of Bar Examiners and many state legislators, and the Florida exam in August. The Florida Board of Bar Examiners will be dictating when test-takers can and cannot take restroom breaks. As someone who has had severe ulcerative colitis for over ten years, I find this repugnant at best. No one should be allowed to tell someone when they can and cannot use the restroom. This also raises questions about female hygiene. These are the disgusting conversations we are being forced to have to prove our “minimal competency.” Additionally, the FBBE is banning the use of scratch paper during the bar exam, which is how we were taught to answer multiple-choice questions, and questions involving the topic of wills, in law school bar exam preparation.

There are more questions that the FBBE has refused to answer. They are leaving technical difficulties of the proctoring software, technical errors, and WiFi access issues entirely up to the examinees. This disproportionately impacts test-takers in poverty. Test-takers are required to install video and audio surveillance software on our personal computers, which raises many privacy and logistical concerns.

Since June 22, I have been to the emergency room three times with post-surgery complications. I am balancing advocating for disabled test-takers and diploma privilege, studying for the new bar exam format, and recovering from testicular nerve surgery. Without taking and passing the bar exam, I will not qualify for attorney positions in Florida or California with law firms. This will leave me without income for at least another eight months until the February exam scores are released. I have worked tirelessly through health difficulties for three years and over 100 credit hours to become an attorney and have yet to receive a full-time job offer. I worked for a large law firm, assisted in criminal defense, and worked in other capacities as a law clerk during my three years as a law student. I received multiple academic awards. I am ready to contribute to the workforce, and I deserve to earn a living as an attorney. My disabilities do not impact my ability to work as an attorney.

Instead of recovering from invasive surgery, preparing for my upcoming wedding, and mourning the death of my lifelong best friend, I am instead studying for unnecessary barriers of entry and keeping test-takers with significant anxiety and mental health issues calm in the midst of a storm created by attorneys, Board members, and judges in my future industry. My priorities are only backward because the Board of Bar Examiners in Florida and California have forced them to be. Law graduates during this pandemic do not feel welcome, and we will never forget how we were dismissed and treated during this pandemic. 

As a disabled law student, I never felt welcome at the University of Miami School of Law. I was once removed from a course because a professor refused to change her restroom policy, then asked if I “snitched” on her to a specific Dean of my law school when I expressed my concern about the policy. The University of Miami School of Law released my accommodation status without my permission during multiple testing protocol errors, causing other law students not to want to study with me anymore as a result. Worst of all, I was told to “pray” when a life-threatening illness gave me temporary short-term memory loss and I raised concerns to Dean Janet Stearns at the University of Miami School of Law about the status of keeping my scholarship when dropping a 1L course. I am not the only student who has come out against acts by Dean Stearns. Another former student reported feeling suicidal after actions taken by Dean Stearns. Disabled students around the country have shared their own stories on social media, but some are afraid of the repercussions from state bars and future employers. I am not afraid anymore.

Lives are at risk if these in-person exams take place. Law graduates, like me, are frantically studying under the harshest of conditions with little to no help until diploma privilege is granted in our respective states. Only then I can rest before I change the world as a successful attorney. This “right of passage” exam will not break me under any condition, because I have overcome adversity that most of the gatekeepers of my profession have never had to face.

For more information on this topic, please see the recording of the webinar hosted by JURIST and United for Diploma Privilege on July 9th entitled: “Diploma Privilege and the Future of the Bar Exam.”

 

Johnny Carver graduated from the University of Miami School of Law with his JD in December 2019 and his LL.M. in Entertainment, Arts, and Sports in May 2020. He previously worked for two NBA basketball organizations and has experience working in various capacities in corporate, criminal, and sports law. In 2017, he graduated from the University of Arkansas Walton College of Business. He has authored and published two books, Ranketology: A New Way of Determining Basketball’s Greatest Player and Ranketology Presents- Sports Gambling & Potential Regulation Through Global Markets.

 

Suggested citation: Johnny Carver, The Life of a Disabled Bar Examinee, JURIST – Student Commentary, July 17, 2020, https://www.jurist.org/commentary/2020/07/johnny-carver-diploma-privilege 


This article was prepared for publication by Brianna Bell, a JURIST Staff Editor. Please direct any questions or comments to her at commentary@jurist.org.


 

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.