TaxProf Blog op-ed: 2020 Law School Graduates: Beware the October Online Bar Exam!, by Mitchel L. Winick (President & Dean, Monterey College of Law):
The California Supreme Court notified the California State Bar Board of Trustees last week that it is considering delaying the next bar exam until October 2020 so that California applicants can be provided an online bar exam option.
However, the details are very concerning.
According to the National Conference of Bar Examiners (NCBE), the October online testing option will not constitute a full Multistate Bar Exam (MBE). Scores earned on the remotely administered test will be valid only in the state(s) where it is administered and will not be eligible to be transferred as UBE or MBE scores when applying for admission to other jurisdictions.
California and other jurisdictions that choose to use this set of MBE materials will be responsible for their own scoring, equating to previous exams, and scaling (adjusting scores from the written essay portion of the test based on the modified MBE portion) -- functions that the NCBE supports for the in-person version of the exam.
Perhaps the most concerning consideration of all is NCBE’s statement that, “Without further research, scores from an abbreviated version of the MBE administered by remote testing cannot be considered comparable to the standard, paper-based, full-length MBE administration.”
According to NCBE’s CEO Judith Gundersen, “NCBE continues to strongly advocate that a full-length, standard, in-person administration of the bar exam is best for a number of reasons, including psychometric issues, exam security, and the testing environment of candidates who may not have access to comparable testing conditions or equipment.”
Having offered July, early September, and late September dates for scheduling traditional in- person exams, the NCBE seems to be saying, “that’s enough.” Apparently, offering a comparable valid online alternative is too much to ask of the NCBE.
Why would the California Supreme Court even consider administering a limited online MBE exam that will not be validated by the NCBE or accepted by any other jurisdictions? It is certainly understandable that the idea of offering an online exam seems like the safest possible course. However, if an online exam is the safest option, why not push back on the NCBE’s limited proposal and demand a fully functional, valid, secure, online MBE option for the originally rescheduled California September date(s)? Why not use this unique opportunity to move California’s bar exam licensing program into the modern digital era?
A recent article, Secure Online High Stakes Testing: A Serious Alternative as Legal Education Moves Online, published in April 2020 by Sara Berman, Gregory Brandes, Megan M. Carpenter, and Andrew L. Strauss, provides a very clear roadmap for creating secure, online, high stakes exams. It also proposes appointing a national emergency task force of experts who can move expeditiously to identify best practices for the implementation of online bar exams.
Of course, this is what we would hope that the NCBE still might do, but if they cannot, or choose not to meet this challenge, perhaps other options need to be considered.
No one knows the direction that the current Covid-19 health crisis is going to take. However, providing a validated, secure, expertly scored, online bar exam option appears necessary for the health and safety of bar examinees. In this time of national crisis, as the sole provider of this multistate exam, the NCBE needs to step up and provide a timely solution for the 54 jurisdictions and the thousands of law school graduates that they serve.