Multiple jurisdictions have made the decision to switch to remote bar exams in October, in lieu of in-person exams in July and September. This is a laudable interim decision because it eliminates for so many the primary concern with this year’s bar exam cycle: exposure to COVID-19. For countless examinees, the stress of their own exposure, and that of their families has been alleviated. Venue staff and exam proctors will not have to appear in person at a time when so many are encouraged to stay at home in order to stay safe. This was the necessary decision, given the timing, to allow bar examiners across the country the time needed to flesh out a final, equitable solution to the current crisis. That solution is Diploma Privilege.
Equitable study environments are not possible in 2020.
Understandably, study environments are never equitable. Some examinees choose to study at home, others use coffee shops and libraries, some prefer outdoors and some retreat to their favorite study rooms on campus. This year, however, none of these options are available. Access to free, public, appropriate study environments level the playing field each year, providing those without suitable study environments at home, a safe quiet place to prepare for the exam. This year, with public spaces closed indefinitely and the bar exam study period shifted from mild spring to scorching late summer making outdoor study unbearable; there are no equalizers. Examinees with familial homes they can retreat to for quiet, or the financial means to get away to a hotel or a vacation rental are at a decided advantage, while those without said means are forced to attempt to prepare in shared apartment living spaces, or at home with multiple family members. Should public spaces open in the coming weeks, space will be drastically limited in order to allow for proper social distancing; and as we have seen in many jurisdictions across the country, re-openings may be short-lived as 2nd and 3rd “waves” of the virus occur. This says nothing for the immunocompromised and those in high-risk groups identified by the CDC for whom study in reopened public venues is not advised. In addition to the study obstacles created by the closure of public venues, there are stark neighborhood disparities created by COVID. Dense, working-class neighborhoods have been hit especially hard by COVID-related unemployment. In these neighborhoods, with adults out of work and children out of school, there is increased recreational activity during the day and well into the night that also impacts the ability of examinees in these neighborhoods to study. While these problems may have always existed, they are amplified during the COVID crisis.
Equitable testing environments are not possible in 2020.
The same challenges in securing appropriate study space contribute to disparities in appropriate testing environments. The move to remote testing assumes that all examinees are able to create space in their living environment where they can be free from intrusion for four hours each day over a two day period. They must be able to take the exam with no interference from children or other members of their households. They must have a laptop with a camera or a separate webcam. Examinees must have access to reliable internet that will work without interruption throughout the examination period. There are too many factors that are beyond the control of the examinees that could make them ineligible to complete the examination. Internet service providers can make the decision to interrupt service for maintenance without warning at any time. There can be speed issues as more and more Americans are working from home, causing strain on the system. Further, October is still hurricane season in the Mid-Atlantic and Southeast (expected to be significantly more active in 2020). The potential for severe weather is high and can have a catastrophic impact on the administration of the test. Some bar examiners who have shifted to online testing have stated unequivocally that there will be no live tech support offered during the exam. If any technical factors interfere with the administration, examinees will have to wait for the next administration of the exam in February 2021.
Delayed licensure has a disparate impact on 2020 graduates.
With the exception of graduates of the top 20 law schools, less than 10% of law graduates from 49% of U.S. law schools land positions in Big Law. These coveted positions come with guaranteed employment, summer stipends, sponsorship for bar prep courses, and other economic benefits other graduates do not receive. The assurance of knowing your job is secure while the bar is delayed allows these lucky examinees the time and mental respite needed to concentrate fully on bar prep, positioning them for success. However, the same cannot be said for the vast majority of examinees without such assurances. As the unemployment rate continues to soar, law firms, government agencies, non-profits, and other opportunities for employment have slowed for the class of 2020. Further complicating matters, jobs in the service industry (bartending, waitressing, gig economy, etc.) have all been negatively impacted by COVID related closures, limiting access to these vital temporary employment opportunities to bridge the gap. Unemployed or underemployed examinees, examinees with families to support, examinees still looking for post-grad employment, and examinees only able to set themselves up for fiscal survival through July are now scrambling to figure out the way forward to October. Should the target be moved again to February, the results could be catastrophic. While all of this angst continues to grow, examinees’ time and mental capacity to prepare for the exam are severely damaged, positioning them for failure.
COVID-19 and growing civil unrest disparately impacts 2020 BIPOC graduates.
COVID-19 causes severe long term illness and death at an alarmingly higher rate for Black Americans. Because of this, it has been reported that 1 in 3 Black Americans know someone personally who has died from COVID-19. It is foolhardy to assume this has not reached a significant number of Black examinees. This has forced many to remain at home, isolated for fear of contracting this deadly virus. Should public spaces reopen for study or test administration, Black examinees will have to make risky decisions regarding whether they will leave safe home isolation and risk their health for the bar exam, a choice that they may not be able to make freely, given the economic impact such a decision could have on their ability to support themselves. At the same time, civil unrest around the country surrounding issues of racial inequity and racially motivated violence has fostered an atmosphere of fear and anxiety that unquestionably affects the ability to focus, memorize, and prepare for an exam. BIPOC graduates in major cities that have been the site of ongoing protests have had to adapt to road closures, curfews, and other stressors, further impacting their study and testing environments in a negative, disparate way.
Evaluation and scoring of a new, experimental test is ripe for discrepancies.
Examinees have been told that this test is “being created” for the October administration. This format, length content, and delivery method has not been tested before. It is being quickly generated over several weeks as opposed to the years of development required before test questions are included in the typical UBE. Examinees have paid thousands of dollars for bar prep programs that are scrambling to “teach to a test” they have not seen. Examinees who have been trained to use highlighting, margin notes, scratch paper, and other approved methods of dissecting and diagraming questions will no longer have that option. Complex choice of law, trusts and estates, evidence and civil procedure questions that benefit greatly from drawing charts and diagrams will be a struggle for even the most well-prepared examinee. Those examinees who cannot afford commercial bar prep programs and rely on printed materials are at a marked disadvantage as these materials cannot adapt to changes in real-time. Bar scoring relies on a comparison model, comparing examinees to each other for determining the scoring matrix for a given year. Such a scoring method assumes equity. It assumes every examinee prepared under semi-equitable conditions and tested under strictly equitable conditions. This is impossible in 2020.
We urge boards of bar examiners across the country and the decision making courts in each jurisdiction to read the impact statements being provided by 2020 graduates that outline just how untenable the situation has become. We urge you to consider the countless hours of study and preparation that have already occurred in the past few months and the money already spent by so many who had to sacrifice to do so, just to get ready for the test. Yes, all 2020 graduates knew upon entering law school that the bar exam was looming. We prepared for it. We budgeted for it. We were ready… for July. But no one could have prepared any of us for the crisis created by a global pandemic. No one could have predicted the upheaval to our lives and those of our loved ones. No one knew that civil unrest would reach a tipping point at the same time as this pandemic. All of these factors are beyond our control. But you can help meet this moment. You can help ensure that our profession thrives despite the challenges we face. You can allow this generation of tenacious, tested, prepared, and passionate professionals the chance to enrich the profession and provide for our families. You can grant diploma privilege.
For more information on this topic, please join a webinar hosted by JURIST and United for Diploma Privilege on July 9th at 7 pm EST entitled: “Diploma Privilege and the Future of the Bar Exam.”
Vania M. Smith, M.P.A., J.D., is a 2020 graduate of the Catholic University of America, Columbus School of Law, where she was the 2019 National Trial Competition (NTC) Champion. Her scholarly interests are Professional Responsibility and Legal Ethics.
Suggested citation: Vania M. Smith, Remote Bar Exams Are Not the Answer, JURIST – Student Commentary, July 9, 2020, https://www.jurist.org/commentary/2020/07/vania-smith-remote-bar-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.
