If you are worried about the spread of COVID-19 at the bar exam, you have good reason. Many examinations are going forward in person in July, and others in September. The NCBE keeps an updated list of state decisions regarding exam dates on their website. A few states have already released assumption of the risk liability waivers that all bar applicants will be required to sign. These waivers require test takers to acknowledge that taking the bar exam in-person poses a significant risk to their health due to the COVID-19 pandemic and assume the risk of getting the virus. If bar exams pose a major risk of exposure to COVID-19, then why would bar examiners and state courts require applicants to choose between their health and their career?
Applicants who sit for the bar exam this year will be at risk of contracting COVID-19. The danger of transmission rises the more people are crowded together in an indoor space and for a long duration—even if they are six feet apart. The main routes of COVID-19 transmission are droplets from persons who are infected and aerosolized spread where viral particles are in the air. Further, separating individuals by six feet may not be sufficient because hundreds of individuals will be in an enclosed space for prolonged periods of time.
Even temperature checks, to the extent they will be used, cannot effectively eliminate the spread of COVID-19. The risk of transmission by individuals who are infected but asymptomatic or pre-symptomatic remains quite high—as high as 20% or more. Thus, although temperature checks may identify individuals who are actively symptomatic, they do not effectively eliminate the risk of transmission.
Nor will face masks eliminate the risk of transmission. The bar exam in most states is a two-day event, consisting of two three-hour testing sessions on each day. That’s two full days of potential exposure. In large jurisdictions, applicants can expect to spend an hour or more on the security line (this will likely be longer in jurisdictions that take everyone’s temperature). Applicants are seated for administrative protocols for up to an hour before the exam begins and then surrounded by one another again during the lunch break. Even if jurisdictions require applicants to wear face masks—an arduous proposition for 12 grueling exam hours and all of the down time before during and after—the risk of transmission remains significant.
Bar takers are not the only individuals in the room, of course. Materials are passed out by proctors, who sit close to applicants to ensure that they are following all rules. Indeed, because proctors in Mississippi were unwilling to expose themselves to the risk of transmission, the state has taken the unprecedented step of offering pro bono credit to young lawyers who might forego the risk and agree to proctor. Bar examiners and technical support individuals also move around the room to offer support. The technical support people often touch candidates’ computers as they troubleshoot technical difficulties.
Some states are requiring test-takers to quarantine for two weeks prior to the exam and are encouraging test-takers to quarantine for two weeks after the exam. That is a wise precaution, but it is unclear how this guidance could be enforced. Bar applicants are, of course, members of communities, and are not completely isolated. They live with others, go to grocery stores where others shop, and will return to their communities after each day of the exam. Further, many bar applicants in states across the country will have to travel to other parts of their state, or across state lines, in order to sit for the exam. This travel may require public transportation, and staying in hotels or other public accommodations. Most bar examinations are given in metropolitan areas, where getting to the exam site will also require travel by public transport.
Going forward with the bar exam will also exacerbate inequities in an already inequitable profession. The legal profession is one of the least diverse in the country. Black communities and other communities of color have been hit hardest by COVID-19. Thus, Black bar applicants are more likely to have contracted COVID-19, to have lost loved ones to COVID-19, and to be vulnerable to acquiring the virus. Bar exam failure already disproportionately impacts communities of color and women. Going forward with in-person bar exams will only widen existing disparities.
Having an in-person bar exam before there is an effective COVID-19 vaccine and/or treatment creates a health risk for everyone involved in the bar exam, as well as individuals in their communities, including the vulnerable. We shouldn’t make bar applicants choose between their careers and their safety in the midst of a global pandemic. There are smarter, more effective, and safer ways to determine who is competent to practice law.
In-person bar exams should be called off, and diploma privilege with reciprocity should be adopted nationwide. The NCBE’s only argument against diploma privilege is mistrust of — and disdain for — law schools. While legal education is by no means perfect, it has made great strides in recent years towards better pedagogy, learning-focused outcomes, and the teaching of practical lawyering skills. The bar exam has not made similar changes. Where is the evidence that the bar exam is a valid predictor of competence (or success) as an attorney?
There are bar applicants all over the country who are organizing and advocating for their lives. We need to hear them, and take them seriously. Without them, we are left with a legal profession that is willing to sacrifice its young, ignoring grave dangers and inequities. Our whole profession needs a do-over right now.