Marsha Griggs (Washburn), An Epic Fail, 64 Howard L.J. ___ (2020):
All at once, the U.S. found itself embattled with the threat of COVID-19, the new normal of social distancing, and the perennial scourge of racial injustice. While simultaneously battling those ills, the class of 2020 law graduates found themselves also contending with inflexible bar licensing policies that placed at risk their health, safety, and careers. During a global health pandemic, bar licensing authorities made the bar exam a moving target riddled with uncertainty and last-minute cancellations. This costly and unsettling uncertainty surrounding the bar exam administration was unnecessary because multiple alternatives were available to safely license new attorneys. A ball was dropped, and bar examiners at the state and national levels failed epically at an opportunity to be adaptive, decisive, and transparent, to the detriment of a class new lawyers and the public they will serve. The dogged insistence on status quo that led to the bar exam chaos of 2020, has placed the method and purpose of bar examination under national scrutiny. This Article offers a critical analysis of the systemic failure of bar licensure authorities to respond adaptively to crisis; explores alternative processes to measure minimal competency; and offers insight about the institutional mindset that has dominated our perception of the bar exam. An entire class of bar takers was held captive to conventional thinking at a time that called for compassion and innovation. Any failures on this bar exam are ours, not theirs.
The aim of this Article has been to analyze the reactive handling of the pandemic crisis as it relates to bar exam administration and to discuss the institutional influence that may have contributed to such resistance to short-term change. And while this is not intended as a critique of any particular jurisdiction, court, or body of examiners, the outcome and devastating impact on the class of 2020 bar takers shows that the measures taken, were largely ineffective, and in some cases more detrimental than helpful. While viable solutions were and remain available, decision makers were dogmatic and resolute in their refusal to break ties, even temporarily, with the established method of testing. The 2020 bar takers will be indelibly traumatized by the circumstances surrounding their quest for licensure.
We will expect our future lawyers to champion justice as they join the fight to compassionately protect the rights of those impacted by COVID and/or those taking a stand against racial injustice. The newest members of our profession will not soon forget the perceived insensitivity and spared justice they received in response to their plight. Our profession has entrusted law examiners with an important responsibility and in 2020 many failed, epically, to maintain that trust.
Taking and passing a bar exam is the end goal, or finish line, of journey that is three years or more in the making. The limited and emergency situation, wrought by the pandemic and civil unrest, provided an opportunity to simply move up the finish line by a few yards. Whether the exam alternative takes the form of diploma privilege or supervised practice should be a matter left entirely to the states to decide. But, deciding against any reasonable alternative should not have been on the table for discussion. In a country with Constitutional protections that would embrace the risk of letting a guilty party go unpunished before wrongly punishing an innocent party, we must ask why we are willing to keep the 90% of bar takers who would pass a bar exam from practice, to keep out the 10% that might not. Duquesne School of Law Professor Ashley London best summed up our obligation to the class of 2020 and beyond: “We owe the newest members of our profession the most protection, not the least. Our privilege and protectionism [are] showing and it is not a good look.”