Paul L. Caron

Monday, July 20, 2020

Remote Bar Exams Are A Terrible And Dangerous Idea

Amanda Pescovitz (J.D. 2020, George Washington), Remote Bar Exams For Aspiring Attorneys Are a Terrible and Dangerous Idea:

Due to the ongoing pandemic, many jurisdictions—except those plunging ahead with superspreader events—are opting to hold a remote bar examination. Passing the bar exam is currently required for a law school graduate to practice law in most cases. But it is extremely unlikely that jurisdictions have the ability to build out the infrastructure to securely administer a remote bar exam, especially on only a few months’ notice. ...

Beyond just the possibility of hacking, some remote exams are proctored using facial recognition software, raising serious concerns about the privacy of examinees biometric information, algorithmic bias, and misidentification. ...

Remotely proctored bar exams are not the solution to the current crisis. Rather, jurisdictions should adopt an emergency diploma privilege allowing at least all 2020 graduates of ABA-accredited law schools to become licensed. This country is facing a massive access to justice crisis, and preventing new law school graduates from serving their communities unless they have exposed themselves and their data to danger is unjustifiable.

The Hill, Law School Graduates Worried About Security, Privacy of Online Bar Exam:

Thousands of law school graduates are gearing up to take the bar exam online this year as the COVID-19 pandemic hinders plans to hold the test in person.

But with states allowing recent graduates to take the exam remotely in large numbers for the first time, test-takers are increasingly worried that security and technical glitches could create unnecessary headaches around their last major obstacle to practicing law. ...

The National Conference of Bar Examiners (NCBE), which drafts the Multistate Bar Examination portion of the test, announced earlier this month that it would provide an “emergency remote testing option” for jurisdictions struggling to safely offer the exam in person.

States and jurisdictions will be allowed to select a vendor to administer the test, with individuals monitored remotely while taking the exam. According to a spokesperson for the NCBE, the three vendors are ExamSoft, Extegrity and ILG Technologies, all of which have previously been used for online testing in classrooms. ...

Josh Blackman, a constitutional law professor at the South Texas College of Law Houston, said he’s skeptical that the online vendors are prepared to handle the number of individuals taking the exam simultaneously. He compared it to the Iowa caucuses earlier this year, when the voting results were thrown into chaos through the use of a new app by the Iowa Democratic Party.

“I am skeptical the bars can do it with the requisite quality in such a short period of time,” Blackman said of remote testing, adding that officials should “proceed with caution and not simply anticipate an online exam that is easy.”

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Great article. Written by a white man who wants to make sure people of color don''t get to take any bar exam. Thanks Boomer.

Posted by: sam smith | Jul 20, 2020 8:35:27 PM

I'm a tax professional, not an attorney, so this is coming from someone on the outside looking in.

At first I was puzzled as to why online testing should be a problem. The IRS uses online testing for Enrolled Agent candidates. FAA written exams for pilots are given online. There are plenty of testing centers set up with proper security and the like, so why should that be a problem?

Then I got to the penultimate paragraph, which indicates that everyone would be taking the test simultaneously. My question, then, is why? EA exams are on the testee's scheulded. Pilot exams are on the testee's schedule. CPA exams are moving to taking place throughout the year instead of at a single time. Why does everyone need to take it at the same time? As I said, the testing centers have protocols in place to ensure the security of the test questions, so take a couple months to come up with multiple variations of the test (i.e., different questions for different examinees) and go with it. If anyone can come up with a justifiable reason for simultaneous testing, I'm open-minded enough to listen!

Posted by: Dave | Jul 20, 2020 1:43:17 PM

I appreciate the concerns laid out in these articles, but I still have trouble getting past my concern about one of the alternatives being adopted in some states, that of diploma privilege for all grads of all ABA-approved law schools. At least limit it to schools where more than half of the graduates passed the bar exam on their first try last year. From the ABA site, here are the non-Puerto Rico schools with first-time pass rates of less than 50% last year:


Posted by: BW | Jul 20, 2020 1:01:34 PM