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The North Carolina Bar Exam Is Not Protecting the Public or Examinees
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The North Carolina Bar Exam Is Not Protecting the Public or Examinees

On July 28 and July 29, 2020, 770 Juris Doctors will travel to Raleigh, North Carolina, to take a two-day bar examination during the COVID-19 pandemic. A group of Juris Doctors registered for the North Carolina Bar in July have come together to push for alternatives to an in-person exam to no avail. As the rate of infection skyrockets in North Carolina, nearly every day breaking a record, North Carolina is the highest infected state out of the remaining eight states, which intend on holding an in-person bar exam in July 2020, with the alternative option of delaying until September, only if needed. As I write this, the exam will be held as planned at the end of the month, and we have not heard a response from our government officials about our requests for alternatives to the exam.

The Decisions of the Board and the Lack of Response from Officials

On May 29, 2020, the Class of 2020 received correspondence from the North Carolina Board of Law Examiners (NCBLE) regarding the coronavirus. This was the first notice the July examinees had about waivers and other “protective measures” for the July exam. In this early notice, the Board stated that examinees would be required to wear masks during the examination, and submit additional “screening” documentation that the Board had not yet made available to examinees. Of particular note to the examinees: the NCBLE required all applicants to sign a waiver. By merely attending the exam, July examinees assume the risk of personal injury, illness, permanent illness, permanent disability, and death.

This was not the only waiver sent for all applicants to sign. Following the May 29 notice, the Board published a list of “FAQs” (which have seemingly been removed but are still listed as an announcement here) responding to student inquiries and indicating that masks were not required to be worn throughout the exam. This guidance contradicted Governor Cooper’s Executive Order requiring masks to be worn in public, announced the next day. However, after a journalist reached out to the Board, the Board required masks to be worn throughout the examination, returning to the May 29 guidance. On June 25, 2020, the Board released the waivers and sent them to applicants. The waivers must be signed and submitted to their portal by July 14, 2020, or the applicant will not be permitted to sit for the bar exam. Under penalty of perjury, the examinee must acknowledge:

  1. They have familiarized themselves with the center for disease control guidelines;
  2. Provide our own face mask;
  3. Provide our own hand sanitizer;
  4. Maintain social distancing;
  5. Avoid travel by airplane, train, or mass transit;
  6. Report to the staff if we develop COVID-19 symptoms;
  7. If we become symptomatic during the exam, our exam will end, we will move to an isolation room, our contacts will be traced, public health officials will be called;
  8. That we have not come into contact with anyone who has tested positive for COVID within the past fourteen days;
  9. That no member of our household has tested positive for COVID in the past fourteen days;
  10. That we have not had a fever, cough, shortness of breath, difficulty breathing, chills, muscle ache, pain, sore through, and/or new loss of sense of taste or smell within the past fourteen days;
  11. That we have complied with the “stay at home” order of the Governor for the past fourteen days;
  12. That we have not tested positive for COVID.

All applicants must sign that we:

certify that the information provided above is true to the best of [our] knowledge and that will abide by the requirements outlined in this Declaration. [Applicant] acknowledge[s] that knowingly violating any of the above COVID-19 requirements for the July 2020 North Carolina Bar Examination will be considered a disregard for the rights, safety, and welfare of others and will constitute a character and fitness issue to be reviewed by the North Carolina Board of Law Examiners.

The waivers on the website have updated; previously, the waivers stated that the applicant had not traveled to or from an active spread area. Now, they state that they have not traveled to or from an active spread area outside of the United States.

These waivers, in the lightest of terms, are problematic. One of the issues I struggled with is that the Board administers the exam, testing us on the law. These waivers are designed with unequal bargaining power, and a strong argument can be made that in signing these waivers, examinees are signing under duress, making the validity of the waivers void. Additionally, the requirements in these waivers are burdensome if not entirely impossible to achieve for many.

According to the Chair of the Board, the bar exam will be held in three separate buildings: the Jim Graham Building, Exposition Center, and the Jane S. McKimmon Center. The Board’s website still indicates that the exam will only be in two locations: the Exposition Center and the McKimmon Center. In one building, 390 students will be taking the exam.

On July 6, 2020, members of the Class of 2020 drafted letters to the North Carolina Board of Law Examiners, the Supreme Court of North Carolina, and Governor Roy Cooper, expressing concerns over the administration of the exam, alongside a separate letter from legal professionals. The three letters were signed by hundreds of law students, lawyers, a retired Supreme Court Justice, Judges, Deans and Professors from North Carolina Law Schools as well as professors of law from other law schools around the country, medical professionals, and concerned citizens. Beyond expressing concerns about the exam, the letters discussed alternatives to an in-person exam, such as delaying the exam, offering an online exam, or diploma privilege. Diploma Privilege allows examinees to obtain their license without the exam, subject to certain requirements. The North Carolina Board of Law Examiners replied to our letter less than 24 hours later, through their attorneys at the Law Firm Young, Moore & Henderson, stating that the exam will be administered in person in July. The Board insisted that they have contacted the appropriate health officials, despite the fact that student inquiries have gone unanswered since June. Additionally, after contacting the Wake County Public Health, we were told that the agency had no idea the Bar Exam would be continuing in July.

Two days after Governor Cooper received our letter through mail and email, Governor Cooper held a press conference addressing the state’s current status of coronavirus. Around this time, the North Carolina GOP convention was set to take place in Greenville, NC. However, the State Health Director of North Carolina advised against the event where 700 people would be attending, and the event was canceled. In the press conference, Governor Cooper applauded the actions of the GOP. He stated that decisions protecting public health must not be partisan. He stated that indoor mass gatherings with hundreds of people will spread COVID-19. He stated that “obviously,” the event should not proceed. Yet, the bar examination has 70 more people attending than the GOP had registered to attend originally. Even when the GOP reduced the number of attendees to 150 people, the convention could not proceed. Still, two days after receiving our letter, Governor Cooper did not address the Bar Exam. To this day, he has not responded to our letter. Instead, he stated that he was implementing a program for internships where the office would virtually match students with employment. Governor Cooper tweeted about that program. Feeling as though social media is the only direct communication we can obtain with the Governor, I responded about the bar exam. Governor Cooper then deleted his tweet about the program for internships. Perhaps it was for a reason other than my response, but we do not know.

We have yet to hear from the North Carolina Supreme Court. Following our letter, my classmate and I sent an argument to the North Carolina Supreme Court regarding an argument that the bar examination is violating the delegation of authority awarded to it through the legislature, and it is violating Governor Cooper’s executive order. That letter was received on July 10, 2020.

The Impact of These Decisions

Applicants are facing extraordinary stress related to the exam. Applicant Britni Prybol is the mother of a young son and a survivor of two different types of cancer. This exam has presented her with insurmountable stress and cause for concern due to the state of her health. She is not alone. Prybol was sent a letter from the Board’s attorneys, Young, Moore & Henderson, which stated that Prybol was not to contact the Board about the exam any further. The Board’s attorney states:

Should you find that your concerns as to your health and safety or that of others has become such a distraction that you cannot be prepared and at your best for the examination set July 28, and July 29, 2020, then you may make the personal decision that you will not undertake the Bar Exam in 2020.

Additionally, the Board’s lawyer stated:

At this time there are less than 30 days remaining before the administration of the exam. I urge you to spend time wisely in preparation for the examination. It is important that you minimize distractions and focus on the examination as are the other candidates. Your most recent email raises a number of questions as to the future decisions or the rational for the past decisions of the Board. This is not the occasion for policy debate. We wish you success in your future endeavors.

Letters from the Board’s lawyers are not all we have to fear. Some of us have received information that the Board has contacted the offices of our other two letters, asking for names of who drafted the petition. There is talk, albeit only talk without evidence, that we will receive character and fitness “dings,” for speaking out against the Board’s decisions.

A Possible Rationale for The Examination During A Public Health Crisis

Each applicant to the Bar must pay upwards of $1,300 to take the bar exam. This does not include the thousands of dollars we spend to the three major bar prep courses, Themis, BarBri, and Kaplan; the $125 “laptop fee” to use our own computers to take the exam; costs to get fingerprints, certified copies of birth certificates and school records; transportation to the exam location and hotel stays for the days surrounding the exam, or any other number of additional expenses that bar applicants incur in order to take the bar exam.

In a financial report from 2016-2017, I found that the North Carolina Bar makes 90% of its money through fees. The North Carolina Bar made $14 million the year of that report. I was shocked to see what the Auditor stated in reference to the financial future of the Bar:

…Needless to say, if the numbers of new admitters were to fall off considerably, that could have serious implications for the financing of the State Bar’s operations and regulatory program. For that reason, the executive director and the Finance and Audit Committee are monitoring developments closely and are attempting to ascertain what the State Bar’s response should be in regard to various scenarios.

Perhaps the Board is making this decision giving weight to the fact that we need a job desperately, and, historically, the bar examination has always been in July, and there has never been an alternative. However, one has to wonder, are these decisions being made with the number one concern being the needs of the examinees? Or are these decisions being made with the underlying tone of financing the State Bar? Also, is coronavirus a “various scenario,” that the Finance and Audit Committee is ascertaining what the State Bar’s response should be? Is the Board making the decision to administer the examination, or are they guided by the Finance and Audit Committee?

The Risks to Me Were Not Just Physical

Although I suspect my concerns are shared by my peers, I do not wish to speak for the entirety of all students taking the July Bar Exam in North Carolina when I say: I am terrified. I am terrified of the exam. I am terrified about speaking out in fear of retaliation from the Board. I am terrified about someone getting sick and dying as a result of taking the exam. Or their family members are getting sick and dying.

I graduated from law school in Alabama, but my family and extended family were born and raised in Goldsboro, NC. My extended family still lives there. I wanted to come home to practice law. My lease starts in Raleigh today, where I am moving next week. After law school, I moved in with my parents in Washington, DC, where they retired. As I write this, my little sister sits next to me after coming home from New York City only a couple days ago, where she works as a makeup artist.

I had to make a choice: survive financially, pay my rent, obtain the dream job that I have worked hard to obtain; or, take this exam, knowing that I could be asymptomatic and have a higher risk than most of actually having COVID-19 due to situations I had absolutely no control over. I made the choice that I will not sit for the exam. I made that choice, and it hurts. I was placed in a situation where I had to choose between two impossible situations. I could be fine. I could not have COVID or carry it. However, if I sat for that exam when someone gets sick or dies, or someone’s family dies from contracting COVID from the bar exam in North Carolina, for the rest of my life I will always have the thought that it could have been me who infected them. I will always have the thought that there is a chance that by taking this exam, I directly caused the death of another because I chose my career over them. That thought, that choice to put others in danger, was not a decision of mine. That decision was the Board’s, and they expressly signed away liability for that decision by instituting assumption of the risk of death. Although it was their decision, I will always believe it was mine.

As I move into my apartment next week, I desperately cling to the hope that one of our officials will listen. I desperately cling to the hope that I will be able to obtain my license either from a delayed exam under safer conditions or through diploma privilege. I stress, and I worry for my peers who have worked so hard advocating for others. I stress about the weeks I spent studying hours upon hours a day when I could have been searching for a job to pay my rent.

What Makes an Attorney?

Through this entire process, every applicant that is signed up for the July Bar Exam has proved their competence. While our profession debates the proficiency of the bar examination in general, we must not ignore what this class has done. This class has diligently studied for an exam they do not know is happening. These applicants have studied through sickness, fear, uncertainty, through a pandemic and on the sidelines of those fighting for their civil rights, wishing we could help. Our applicants advocated for public health; researched the validity of the waivers, dived deep into the law of executive orders, contacted anyone who could help keep people safe, worked with scholars to draft arguments, called our Representatives and Senators in the General Assembly, worked closely with retired Supreme Court Justices and Judges. We advocated in the face of oppression, fear, but we advocated because it was the right thing to do.

Every applicant registered to take the North Carolina Bar Exam came together and worked for the greater good of our state and profession. We are advocates. We hold every value of integrity, honesty, competence, and passion that it takes to become an excellent attorney. The bar examination did not make us outstanding attorneys. Our three years of law school and our actions through these past few months made us excellent attorneys.

These decisions of the Board are not for the safety and welfare of the public. In a time of crisis, we must take action to do what is right. I can say that I will never forget these past months, and when I am a licensed attorney, I will value the connections I have made with my peers, and I will never let what happened to us happen to anyone else, ever again.

To those who read this article, please understand the weight of what it took to keep my name public. Please understand the gravity of this situation. If you have power, we are being silenced and ignored. We need those who are in control to help us.

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.”

 

Taylor M. Dant, J.D., is a 2020 graduate of Samford University’s Cumberland School of Law, where she advocated in the Nationally Ranked Trial Team and was a member of the Trial Advocacy Board. She hosted a first-year Trial Competition and taught the first-year class the operations of litigation. Her scholarly interests focus on Criminal Defense and Constitutional Law.

 

Suggested citation: Taylor M. Dant, The North Carolina Bar Exam Is Not Protecting the Public or Examinees, JURIST – Student Commentary, July 12, 2020, https://www.jurist.org/commentary/2020/07/taylor-dant-nc-bar-exam/.


This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him 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.