Cory Bernstein, a recent graduate of Brooklyn Law School, argues the New Jersey Board of Bar Examiners are violating the Americans with Disabilities Act in their administering of a remote bar exam and calls for universal diploma privilege…
On August 3, New Jersey’s Supreme Court publicly responded to a letter from more than 100 New Jersey law school faculty and administrators rejecting their call for a one-time issuance of “diploma privilege” for 2020 law school graduates and other first-time bar applicants in lieu of a remotely proctored bar examination in October provided by the National Conference of Bar Examiners (NCBE). While Chief Justice Stuart Rabner did not address the academy’s concerns that a remote exam disproportionally burdens female, non-white, and lower income examinees, he did acknowledge the challenges faced by examinees with disabilities. Here, Justice Rabner stated that the Board of Bar Examiners would continue providing reasonable accommodations to any qualifying examinee as required by the Americans with Disabilities Act (ADA). However, these superficial assurances gloss over a much starker reality. Since their July decision to hold a remote bar exam, New Jersey’s Board of Bar Examiners has not met its legal or ethical duty under the ADA. And even if they had, a remote bar exam cannot sufficiently accommodate examinees with disabilities.
As a public entity offering a professional licensure examination, New Jersey’s Board of Bar Examiners must provide individuals with disabilities public accommodations under Title III of the ADA. Here, an operator must offer “alternative accessible arrangements” for individuals with disabilities if the examination is not accessible to these individuals “in place and manner.” Additionally, federal regulations stipulate that operators respond to requests for accommodations in a timely fashion.
Under this framework, the Board requires examinees submit an application for a reasonable, non-standard testing accommodation, which must include a certificate signed by a doctor or psychological professional. They must describe the applicant’s mental or physical diagnosis, how this diagnosis would affect the examinee’s performance absent any reasonable accommodations, and finally, recommend non-standard and reasonable accommodations. Examples of reasonable accommodations include extended time, accessible testing locations, exams administered in braille, and auxiliary aids.
As of August 30, New Jersey’s Board of Bar Examiners have not produced any reasonable accommodation application procedure for the October exam. The Board’s website currently lists the application deadline as June 5 for the now-cancelled September 2020 Bar Exam. The remotely proctored October exam was not announced until July 15. The medical certificate remains similarly outdated, describing the traditional in-person exam format as the “standard testing protocol,” instead of the remote exam’s abbreviated format.
Of course, some examinees may require accommodations that are unnecessary for an in-person exam. However, non-standard testing accommodation application packets do not exist. Examinees seeking more information have been rebuked by the Board, which has merely said that the application deadline was on June 5. By imposing the deadline from September’s now-cancelled exam, the Board continues to ignore ADA procedures, denying individuals with disabilities any opportunity to seek alternative arrangements for the remote exam. The Board has abrogated its duty under the ADA to issue timely responses to accommodation requests.
The Board’s inaction is not a mere inconvenience. It creates irreparable consequences for examinees with disabilities. Many school-sponsored student health care plans including New Jersey’s two law schools, Seton Hall and Rutgers, expired on August 15, leaving recent law school graduates uninsured. Some university plans have one-time three month continuations for graduates but these can cost nearly $1,500.
Even if the Board were to enact new procedures, however, the fact that many examinees’ health care plans have lapsed pose an undue burden on those seeking reasonable accommodations. They must either pay for a medial or psychiatric assessment out of pocket, pay for a plan continuation, or else forgo an assessment altogether and take the exam without an accommodation. This only serves to exacerbates the inequities, especially for non-white and lower income examinees.
Setting aside the Board’s noncompliance with the ADA, the remote exam’s hasty planning and format severely disadvantages students with disabilities. Writing utensils and scrap paper are prohibited—instead, examinees must take the exam on a single computer screen. The authors of the New Jersey letter say the Board has suggested examinees avoid excessive fidgeting as part of a broad and unclear anti-cheating plan. But as the authors rightly point out, this is impossible for many individuals with disabilities.
The Board’s anti-cheating plan, or lack thereof, is one many uncertain and unprecedented features of the remote exam excessively burdening examinees with disabilities. Examinees will not know what the exam will look like until preparatory exams are released in September. The font size, color, and “digital” scrap paper, for example, remain a mystery, and the qualities of such features could necessitate even more reasonable accommodations for some examinees. Moreover, medical or psychological professionals will not know with certainty how an individual’s disability could affect their ability to take the exam because of these unknowns.
Additionally, the remote implementation of reasonable accommodations presents significant complications. Unlike past exams offered at testing centers, the Board must build an infrastructure for remotely accommodating examinees in their homes, Rutgers, and Seton Hall Law Schools, as well as other exam locations. This infrastructure must also ensure accommodations do not malfunction. For example, what would happen if an examinee’s auditory aid suddenly stopped working? The Board must establish protocol for potential glitches like this. Just this past May, technical difficulties associated with the College Board’s remote Advanced Placement exam prompted a class action lawsuit brought by high school students.
Notably, the complaint against the College Board included additional allegations that the exam itself imposed hardships on students by exacerbating existing mental illnesses and disabilities. It is easy to see how the remote bar raises similar concerns, especially since the bar is already extremely challenging and will be administered amid a global pandemic. Anecdotally, the protracted preparation period and the remote exam’s existing ambiguities have deteriorated the mental health of examinees around the country, causing overwhelming episodes of depression and angst. On July 27, the American Bar Association expressed similar concerns, passing a resolution resolving that bar examiners should issue accommodations to all examinees experiencing “substantial hardships” from the remote exam.
Though flummoxing in retrospect, NCBE President Judith Gundersen, now an ardent supporter of remote bar examinations, shared this sentiment as recently as May when she advocated for in-person bar examinations despite the risks associated with COVID-19. Gundersen noted that, “Depending on the nature of the disability, some candidates may need a distraction-free environment and if their living situation doesn’t provide that, it could impede them from clearly demonstrating what they know.” Gundersen added that artificial intelligence in remote exam software could “trigger anxiety for those who have generalized anxiety disorder.” Nevertheless, the National Conference for Bar Examiners has not addressed President Gundersen’s concerns since announcing their administration of an October 2020 remote exam, which New Jersey will use.
The global pandemic has forced leaders to make difficult decisions regarding the licensing of bar applicants. But with this authority comes a responsibility to carefully consider the totality of perspectives and experiences. Through an approach replete with ADA violations and its imposition of a remote bar exam, New Jersey’s Board of Bar Examiners and Supreme Court have abdicated this duty to individuals with disabilities, amongst other groups historically marginalized by the legal field. Universal diploma privilege is the only reasonable accommodation.
Cory Bernstein is a 2020 graduate of Brooklyn Law School. He is from New Jersey.
Suggested citation: Cory Bernstein, NJ Board of Bar Examiners Must Grant Universal Diploma Privilege , JURIST – Student Commentary, August 31, 2020, https://www.jurist.org/commentary/2020/08/cory-bernstein-nj-board-exam-diploma-privilege/.
This article was prepared for publication by Theo Wilson, a JURIST staff editor. Please direct any questions or comments to him at firstname.lastname@example.org
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