U.S. Jurisdictional Approaches to the Bar Exam During COVID-19: Why We Desperately Need Diploma Privilege
I’ve written briefly before on diploma privilege on my blog and have been advocating for it on my private facebook page for months, but this’ll be the first really big overview of all the jurisdictions and the issues with each approach I’ve written up. I prepared this with the intention of talking on the subject at the virtual PAD Convention last week, but alas, we ran out of time. Hopefully this is useful anyway.
Quick Introduction (before getting into specific jurisdictional approaches):
The Normal Stress of the Bar Exam (pre-pandemic)
Let me start this out by noting that even in non-pandemic times, the process of studying for and taking the bar exam is an inherently stressful experience, both emotionally and financially. Each jurisdiction in the United States has different requirements for acquiring a legal license, but generally, you need: 1) a juris doctor degree acquired from a law school (a 3 year course full time and 4 years part time), 2) a passing grade in your jurisdiction on an ethics exam (often the Multistate Professional Responsibility Examination, or MPRE), 3) pass a Character and Fitness screening process/background check, and 4) pass the bar exam.
I’m not going to delve deeply into the huge expense of all of these items right now, but trust me when I say it’s a lot of money. The bar exam in Illinois, for example, costs $950 to take, and to properly prepare for it, you pretty much HAVE to pay for a professional bar prep program, which generally run $1,699+ (many of the big courses are over $2,000). It’s highly advised that you study full-time for the bar exam for around 2 months, and /don’t work/. The bar exam usually runs for 2-3 days and is only offered twice a year (and in some jurisdictions, only once a year). You generally won’t find out whether you passed or failed the bar exam for many weeks to many months afterward. If you don’t already have a job offer from a firm or an agency secured (contingent on you getting that licensure), you have to start job hunting without knowing whether you’ll be licensed or not. If you fail, you have to go through the whole process again, spending more money and time to pursue that passing score.
So even in the best of times, the bar exam process is incredibly expensive, stressful, and can cause a huge amount of financial hardship and uncertainty for test takers.
Bar Exams During a Pandemic
In the COVID-19 world we live in now, there are even more issues. Many jurisdictions have changed their bar exam plans multiple times, sometimes only a week or so before the original date. This causes a huge amount of mental and financial stress on test takers, as they now have to figure out how to support themselves for another 1-3 months until they can take the test.
Financial Concerns: Can they make their money last? Do they need to get a job to survive (against almost all bar prep advice)? If they search for a job, will they even be able to find one (there is a global recession on, after all)? If they already secured a job offer at a firm or an agency, is that offer still good (many businesses and governmental organizations have had to rescind their offers due to - recession, uncertainty of when law licenses will be acquired)? In some jurisdictions, like Delaware and Palau, the 2020 exam has been cancelled altogether, so test takers in those areas now have to figure out how they can make it through the next YEAR without a law license that will allow them to practice in their field.
Mental and Physical Health: Mental and emotional health issues are on the rise for everyone right now, given the pandemic and a global recession. Anyone who’s dealing with more immediate troubles, such as unemployment, illness or death in their families, and possible eviction, is going to be struggling even more. This constant stress and anxiety has a huge impact on a test taker’s ability to focus or study. In addition, the uncertainty behind when, where, and how a bar exam will be held means that it’s difficult for test takers to actually plan their studying (remember, several exams have been postponed or cancelled at the last minute). The bar exam tests such a wide variety of subjects that generally, test takers have to cram everything in their head over two months and hope that they reach the apex of that information curve right at the exam time, right before they forget it all (it’s basically impossible to hold on to all that knowledge for long). All the bar prep courses are designed to fit within that two month study period; what do you do when that two months extends to three, four, or five months? How do you retain what you’ve learned when you don’t know when those exams will happen?
Now let’s get into specific issues with each individual approach.
Quick disclaimer: I got almost all this information from the NCBE and plan to update it as I go with more information from various news sources. I don’t know the ins and outs of every jurisdiction, so there may be some outdated information on this. I am personally barred in Illinois, so I’m most familiar with the issues there. As you’ll see, this is a very complicated issue that jurisdictions are dealing with in a variety of different ways, and it’s all changing very quickly, so if anything is outdated or inaccurate, I apologize. You can always give me corrections via comment or via email at RachaelDickzen@gmail.com.
Almost all information here is from the National Conference of Bar Examiners, compiled 08/08/2020 from “ July 2020 Bar Exam Status by Jurisdiction ” (table form, broken out by date of exam)) and “ July 2020 Bar Exam: Jurisdiction Information ” (map and chart, broken out by jurisdiction)
UPDATED 08/11/2020 with new information [underlined, with sources linked]
1. Jurisdictions who gave an in-person July bar exam
· Arkansas, Colorado, Iowa, Mississippi, Missouri, Montana, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, West Virginia, Wisconsin, Northern Mariana Islands
Health Concerns: Bar exams, particularly in larger jurisdictions, often have hundreds (maybe even thousands?) of test takers in one large space, like a stadium or a conference center. Here’s a photo of what the bar exam looked like in Chicago when I took it in July 2015. Yes, it’s just as insanely intimidating as it looks. This was actually one of two locations for test takers in Chicago then.
Reports that have come in from various jurisdictions that gave in person July bar exams have been…concerning. All the usual pandemic concerns apply here: Is everyone there wearing a mask? Is social distancing being enforced? However, the very high stakes of a bar exam, the fact that this exam is offered only 1-2 times a year, and the huge expense and time commitment involved in studying for it means that there is a rather high incentive for test takers to go to take the bar exam even if they’re feeling sick or have tested positive for COVID-19. Although jurisdictions were taking test takers’ temperatures, it’s totally possible that someone was missed.
I also saw lots of reports from test takers that social distancing was NOT being enforced and that they were really uncomfortable with how close they were to other people but….what could they do? They really didn’t have any choice in the situation. Keep in mind most bar exams ban you from having a phone anywhere near you; you definitely have to leave it way far in the back of a room or sometimes even at home. There’s often no way to call for help or document what’s happening.
It’s a little too soon yet to determine if people got sick from in person bar exams yet, but there was a report that came out immediately after the Colorado bar exam indicating that a test taker had tested positive from COVID-19 that advised everyone in a specific room to get tested. And seriously, how can you concentrate on one of the most important tests in your life while you’re worrying about whether you’ve contracted a highly contagious disease that’s killed over 163,000 people in the US and whether you might now be carrying it home to your family?
Administrative Concerns: In pandemic times, you obviously can’t have that many people crammed into one room and certainly not that close together at tables, so you’ll need more rooms, more spaces, and more proctors to administer the exam. So you’re bringing in more people, more places, and more passing in hallways to get to the various locations. Administratively, it becomes even more complicated.
2. Jurisdictions planning to give a delayed in-person bar exam
· September – Puerto Rico (Although the NCBE website actually says that Puerto Rico gave its exam in July, I spoke with a lawyer in Puerto Rico on Saturday and found out that that is definitely NOT the case. Thanks for informing me, Irma Morales! Sorry, I haven’t been able to nail down the exact date yet because the website is all in Spanish, but I’ll try to figure this out soon).
· September 9-10 – Alaska, Guam, Hawaii, New Mexico
· September 30-October 1 – Maine, Rhode Island, Utah
· July and September 9-10 - Kansas, Minnesota, Nebraska, Virginia (one-day exam, Sept. 10), Washington
· July and September 30-October 1- Alabama, Wyoming
· July and October 5-6 - Arizona, Idaho, Oregon
Health Concerns: All the previously stated in-person health and safety concerns apply here.
Mental Health and Studying Concerns: Given how many states have changed their plans for in person exams with extremely short notice, exam takers are in a huge state of uncertainty as to whether they will actually be taking the exam on the stated date or not, which leads to all the financial uncertainty and studying difficulty noted in the introduction.
3. Jurisdictions with multiple dates and multiple testing options
· Oct. 5-6 remote exam offered as an option in addition to in-person July - Arizona, Idaho, Oregon
· Oct. 5-6 remote exam offered as an option in addition to in-person Sept. exam - Texas
4. Jurisdictions that gave a remote July bar exam
· Michigan
Remote Exam Software Issues: Michigan is the only remote exam that’s been given so far, and thus, was the ONLY jurisdiction with a remote exam in July. It still had a ton of problems. The software crashed on the first day, which locked out some test takers for 10 - 37 minutes. The software company tried to blame this on a cyber attack, but many think this was an excuse and the software was simply just overwhelmed. The board of examiners said afterward that no data was compromised and test takers affected were given extra time, but that probably wasn’t very comforting to the many test takers who were anxiously freaking out at the time. Keep in mind that when a glitch in 2014 kept bar exam takers from being able to file their completed first-day tests electronically (after the bar exam, not during it), Examsoft ended up paying $2.1 million to settle all the class-action claims that resulted. This crash took place, DURING the bar exam, and all those test takers had to get right back to answering all the questions immediately after it happened. I can only imagine the panic attacks that were happening.
Recently (as in August 7, 2020), a large bar exam software company, Extegrity, said that it will not be providing software for remote bar exams this year. They stated that their software was not developed for large scale, simultaneous start high stake exams and that remote proctoring carries undue risk for the October exam.
5. Jurisdictions planning to give a remote delayed bar exam (proctored)
· August 19 - Florida (one-day exam, Aug. 19) (The planned test of the software on August 10 was postponed after numerous problems with it were identified after downloading it, Florida Board of Bar Examiners website)
· August 24 or October 10 – Louisiana (in addition to diploma privilege option - cancelled its planned July bar exam in favor of these approaches)
· October 5-6 – California (lowered passing score 50 points ), Connecticut, District of Columbia, Georgia, Illinois, Kentucky, Maryland, Massachusetts, New Hampshire, New Jersey, New York , Ohio, Pennsylvania, Tennessee, Vermont, Virgin Islands
Remote Exam Administration and Safety Issues: Remote bar exams are generally proctored by a combination of people watching webcam feeds and cheating detection software. I’ll get into the cheating detection software more later in this section. From a practical standpoint, you need a LOT more people to watch a lot of individual webcam feeds than you do to watch hundreds of people shoved into one room.
From a safety and privacy standpoint, a lot of people are very creeped out by remote test-proctoring. Although I don’t think any bar exam plans to do it as intensely as is described in this article from The Verge, the situation is similar enough to pose concerns. I’ve read reports of female test takers receiving Facebook friend requests from their male exam proctors after they’d literally watched them take an exam for several hours as well, which is….extremely creepy.
Remote Exams’ Effect on Less Privileged Test Takers: Even assuming the software was entirely reliable and trustworthy, not every test taker has the same access to reliable internet, computers, webcams, or a private, quiet space. Remember we’re in a global pandemic and recession, plenty of people just don’t have the financial ability to rent a hotel room, or buy a new computer or webcam. Many jurisdictions have put very strict rules in place which ban any person or pet entering the room during the exam, which causes issues for parents or pet owners who can’t afford or find a sitter during a pandemic, or for those who live in small spaces with roommates or family members.
Remote Exams’ Effect on Test Takers with Disabilities: Some test takers who qualify for accommodations for the bar exam have been told they can’t get those accommodations remotely and need to come in for an in person test. In addition, rules designed to prevent cheating have resulted in bans on leaving the room, even for a bathroom break, which can pose issues for pregnant test takers or those with disabilities. One test taker who’s 8 months pregnant said that her accommodations request for bathroom breaks was straight up denied, so flexibility doesn’t seem to be a rule here.
Remote Exam Security Technology Bias: Cheating detection software is the big reason why test takers are banned from leaving the room and why any person or pet is banned from entering the room during the exam; it could throw up a flag and cause problems for you later even if your cat walks in (presumably most people’s cats are not experts on adverse possession law).
In addition, remote proctoring uses facial recognition technology to ensure that the same test taker is logging on to the exam for each module. Studies have shown that current facial recognition technology is biased towards a white male dataset and often causes issues for female test takers, test takers of color, or anyone who doesn’t conform to a traditional “white male” look as recognized by a computer. This can lead to problems and delays for bar exam takers trying to log on to take their test after a lunch break. And when you’re taking such a high stakes, expensive test, every moment counts.
6. Jurisdictions that gave a remote delayed bar exam (open book, non-proctored)
· Indiana (one-day exam, Aug. 4)
· August 11-12 – Nevada [UPDATED, i just learned that Nevada also decided to offer their exam as an open book non-proctored exam. Nevada used the same vendor that Indiana used and Indiana’s test caused Nevada to push back its exam two weeks. Some test takers reported that there were still issues with the software used by Nevada during practice sessions.]
This entire approach was developed in response to the “repeated and unforeseen technical complicates” that resulted when Indiana tried to test its bar exam in July.
7. Jurisdictions granting extensions of supervised/provisional practice rules
· Arkansas, California, Colorado, Connecticut, Georgia, Illinois, Kentucky, Massachusetts, Missouri, Montana, New Jersey, New York, Ohio, Pennsylvania, South Dakota, Tennessee, Vermont
Disclaimer: This is the approach I know LEAST about. Jurisdictions are taking very very different approaches toward this - in some places, it may just be an extension of supervised practice student license rules. Other jurisdictions may allow for more autonomy on the part of the temporarily licensed lawyer.
Financial Issues: Either way, this really isn’t a satisfactory approach. Those with temporary licenses are still going to have to take 1-2 months off work in the future to study for the bar exam, and given the state of the world, it’s hard to guess when that time will be. Employers are going to be really disinclined to hire someone knowing that they’re going to have to give them that time off in the future for them to remain licensed. In addition, employers will definitely use a provisional license as an excuse to pay those holding that license less.
8. Jurisdictions granting diploma privilege
· Diploma Privilege as an option, may take in person exam – Louisiana, Oregon, Washington
· Diploma Privilege alone – Utah
· [UPDATED} Wisconsin already allows graduates of the two ABA accredited law schools in the state to seek admission to the state bar without having to sit for a bar exam and has done so since 1870. Graduates of out-of-state law schools must still take the bar exam to be admitted there.
I, obviously, support diploma privilege as the best option of all of these approaches. But even this option has numerous issues with it. Will employers accept licenses acquired through diploma privilege as valid or good enough? Will other states grant reciprocity? These concerns are real enough that Louisiana, Oregon, and Washington is still offering bar exams as an option to graduates who are concerned that diploma privilege won’t be enough.
Administratively - is it only accredited law school graduates that get diploma privilege? What happens to graduates of an unaccredited law school? Will those graduates alone be forced to take the bar exam?
Some people have voiced concerns that we’ll have unqualified lawyers if we grant diploma privilege. I personally think this is ridiculous, the bar exam tests memorization and short term recall far more than your actual ability to practice the law. Legal practice is almost always open book and you’re rarely going to be put in a situation where you need to spout off memorized facts and laws at a moment; even when that situation comes up, you’re likely to have ample time to prepare.
9. Jurisdictions that have denied petitions or requests for diploma privilege
· Alaska, Idaho, Illinois, Minnesota, Missouri, Nebraska, Nevada, North Carolina, Ohio, Pennsylvania, and Tennessee
10. 2020 Exam cancelled
· Delaware, Palau
Test takers in both of these jurisdictions will have to wait until July 2021 to take a bar exam and pursue licensure. This will obviously lead to lower pay and potential inability to get a job in the field you’ve trained for. Test takers will have to take 1-2 months off work next year to study for the exam, which will make employers pretty unhappy. Overall, it just leaves a lot of test takers in limbo.
Obviously, despite writing over 3,000 words on this subject, this is just the tip of the iceberg. There’s a lot I haven’t talked about and a lot we don’t know. But please, if you’re convinced by my arguments here, join the fight for diploma privilege. United for Diploma Privilege has a pretty good run down of the organizers of the movements in each individual jurisdiction and a list of resources and upcoming events; I encourage you to reach out to the groups in your local area to help.
As you’ve seen now, this is a very complicated issue that jurisdictions are dealing with in a variety of different ways, and it’s all changing very quickly, so if anything is outdated or inaccurate, I apologize. You can always give me corrections via comment or via email at RachaelDickzen@gmail.com. Thank you!
