Friday, July 17, 2020

Announced Approach to Bar Exam 'Is Not Practical'

This response originally appeared in the July 17, 2020 edition of The Recorder. 

The California Supreme Court’s announcement instructs the State Bar and law schools to do the impossible during ordinary times. To suggest these changes in the midst of a global pandemic is thoughtless at best and dangerous at worst. The Court claims to have sought “the safest, most humane and practical options.” It has failed on all fronts.

Without knowing how the temporary licensing provisions will operate, it is impossible for recent graduates to make an informed decision about taking the October exam. Yet the only guidance the Supreme Court provides the Bar is that the temporary licensing must last two years and include a 15 day public comment period. This is not “practical.”

A remote exam is unfair. Certainly some graduates will be able to plan two days of exam conditions in their homes. However, not all graduates have the wealth or family support required. Many more graduates face home situations in shared spaces with family members who will be attending school or working remotely in the same space. The California Supreme Court simply does not understand the pandemic and its ramifications. This is not “humane.”

Nor are the Court’s plans “safe.” The Court’s suggestion that law schools should provide “facilities and equipment” as they did to help students finish the semester at the beginning of the pandemic is unworkable. To equate a two-day, high stakes licensing exam with attending classes on video conferencing demonstrates a failure to understand what is involved. To provide a student a loaner laptop is a far cry from providing what is needed to take a two day high stakes exam in proper conditions. A student who missed a few minutes of class because of technology problems did not suffer any permanent harm to their legal education. Technology or equipment issues now may prevent graduates from passing a remote bar exam. More importantly, law schools are currently shuttered due to public health orders. It is not possible to provide “safe” options.

While a short, multiple choice style examination might be possible in a remote online setting, a two day exam with written components is not. Presumably bar exam takers will not be allowed actual scratch paper. To require a written exam, without being able to make any notes while reading the exam will potentially benefit those who are more adept with technology or have better computer equipment that more easily allows virtual note taking. No justification exists to take the risk that an exam taker who can afford better computer equipment will have an advantage on the bar exam. The Supreme Court likely does not work on the smaller and older laptops that many of today’s graduates will be forced to use on the examination. This is not “practical.”
The Supreme Court got one thing right and everything else wrong. While the change in cut score is long overdue, the Supreme Court failed to even mention those who were unsuccessful on a previous bar exam, but would now pass under today’s standard. These graduates should be licensed immediately. It is not “humane” or “practical” to leave this unaddressed.

Other questions are also left unanswered. Does a failing score on the October exam foreclose the temporary licensing option? How will disabled students be accommodated on a remote exam? And what if the pandemic crisis continues longer than expected? These overarching questions say nothing about the countless details necessary to implement any one of the Court’s orders – let alone all of them. And all before an October exam.

It is time to face reality. The pandemic has no set timetable. The bar exam is not worth saving. The time, resources and money required to administer a remote online exam, one that is likely discriminatory and unfair, should be funneled into other alternatives.

The California Supreme Court and the California legislature have neglected the State Bar for decades. Without proper oversight and funding, the State Bar cannot be expected to implement a remote exam, create a temporary licensing program, and resolve all of the complications of a new cut-score. Any one of these tasks is a major undertaking. Taking on all three tasks and doing so in less than three months, during a pandemic, is absurd.

Susan Smith Bakhshian is a professor at LMU Loyola Law School, where she is Director of Bar Programs. She is the author of “Clearing the Last Hurdle: Mapping Success on the California Bar Exam.”

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