By a vote of 256-146 Tuesday afternoon, the American Bar Association House of Delegates approved Resolution 10G, urging “the highest court or bar admission authority of each jurisdiction to cancel and to not administer any in-person bar examination during the COVID-19 pandemic until and unless public health authorities determine that the examination can be administered in a manner that ensures the health and safety of bar applicants, proctors, other staff, and local communities.” The Resolution was originally put forward by the Virgin Islands Bar Association, the ABA Law Student Division, the ABA Young Lawyers Division, and several other ABA Sections.
The Resolution also urges state bar exam authorities
to establish temporary emergency measures to expeditiously license recent law school graduates and other bar applicants when public health and safety concerns preclude safe administration of an in-person bar examination, including but not limited to administration of a remote bar examination, creation or expansion of certified legal intern programs, supervised practice programs leading directly to licensure, a form of diploma privilege, or provisional admission subject to passing an in-person bar examination when public health and safety concerns permit such an examination.
Finally, the Resolution calls on jurisdictions electing to administer a remote bar examination to “implement appropriate safeguards with respect to the reliability and security of the online software, provide reasonable accommodations to all applicants, and take appropriate measures with respect to data collection, usage, and action.”
Passage of the Resolution surprised observers. Debate on the measure in the House of Delegates in the third day of its annual meeting was extended and sometimes intense, and featured stalwart defenses of the traditional bar exam process by established lawyers connected with the National Council of Bar Examiners and powerful supportive statements from law professors and law deans, law students taking the bar, and practicing attorneys. The debate was interrupted at several junctures by technical glitches. Michaela Posner, one of the law student speakers supporting the Resolution, reminded the House of Delegates that the reason they were holding their own meeting online for the first time in ABA history was because of concern over in-person gathering during the COVID pandemic. Critics of the Resolution expressed concern that it would be a general “Trojan Horse” for diploma privilege, a practice that would allow law students to become lawyers upon graduation from law school with no further examination requirement. Diploma privilege has been forcefully backed by a growing network of law graduate activists and has already been adopted in some states in the face of COVID-19.
The debate concluded with a powerful impact statement by Conisha Hackett, the ABA Law Student Division Delegate of Diversity. Hackett described her experience having to prepare and sit for the in-person Mississippi Bar Exam in July 2020. She explained why she went to law school:
I did not go to law school to become a teacher, even though I thank God for them. I did not go to law school to work as a receptionist with a beautiful smile, and I did not go to law school to obtain the knowledge and know-how (or will to learn how) of an attorney to earn the salary of a paralegal. I went to law school to practice law.
But she emphasized that no one wanting to be a lawyer should be forced to take an in-person bar exam amidst a pandemic:
No exam is worth the lives of my family or your family. No exam is worth your mental health and sanity. No exam, especially one which can be administered online or through alternative modes is worth your life…because that’s what we’re talking about. We are talking about young professionals who have decided to go against all reason to possibly have the chance to enter the practice of law.
The Resolution approved by the House of Delegates is not binding on high courts or other state bar admission authorities, but will nonetheless carry persuasive force.
On July 16, the New York Council of Bar Examiners canceled that state’s bar exam scheduled for September due to COVID-19 concerns. Other states have opted for remote online examinations, although those too are controversial due to technical concerns and late notice to test-takers.
JURIST livetweeted Tuesday’s ABA House of Delegates meeting. Follow JURIST on Twitter and read our livetweet stream, divided into five parts.
JURIST carries extended coverage of Bars Exams in the Pandemic. See also the JURIST Editorial Board’s July 9 statement on diploma privilege entitled The Diploma Privilege Manifesto.