Category: For The Legal Academy

A group of powerhouse leaders in legal education and bar admission just published an article on SSRN called “The Bar Exam And The Covid-19 Pandemic: The Need For Immediate Action“

The authors lay out six options for licensing:

1. Postponement
2. Online Exams
3. Exams Administered to Small Groups
4. Emergency Diploma Privilege
5. Emergency Diploma Privilege-Plus
6. Supervised Practice

I encourage all bar examiners to read their short article, and to pay particular attention to the Emergency Diploma Privilege option.

A huge thank you to Professor Angelos, Director Berman, Dean Bilek, Professor Chomsky, Professor Curcio, Professor Griggs, Dean Howarth, Professor Kaufman, Professor Jones Merritt, Provost Salkin, and Professor Wagner for their comprehensive and speedy work.

Most law schools have now moved to remote education, at least for some period of time. I have had a chance to think about online education for some time, as I moved my bar support class to a flipped classroom with a distance education component over a year ago. (You can read my musings about that here.) Here are five things I am thinking about this morning.

1. Make sure that your students are prepared. Sending them Susan Landrum’s post is a great start. Some of your students may rely on your school’s food pantry for school, and other supports for social services. They will need to plan now.
2. Don’t assume that this is just business as usual, but virtual. Faculty are often used to doing a lot of work at home. Staff and students may not be. Just reproducing what we do in a virtual space is not going to work. We cannot assume that our students will have a fully functional computer and internet set-up and a quiet place to work from home at the exact time your class meets. You will need to redesign your course and think about what portions are best done in face-to-face online communication, and what pieces can be done in different modalities. Not everything can be done in real-time. Deadlines and timeframes will need to change.
3. Have multiple methods of communicating with your students. Many of us are relying on Zoom. They’re great, but they may go down. You likely have access to course management systems such as Blackboard, TWEN, or Lexis WebCourses. You can set up a Slack Channel, or Facebook Group for your course. You can use a program such as Remind to set up a text messaging group for your course. You can post videos to Vocat or TedEd. Email works too, but students are often inundated with email, so it’s best to post communications in multiple places. You can use Google Docs or Dropbox Paper to create a virtual whiteboard, and allow multiple people to edit a document simultaneously.
4. You don’t have to reinvent everything. Your school probably already pays for subscriptions to study aid packages such as those through West Academic, Wolters Kluwer, or CALI. Many interactive lessons have already been created that you can incorporate into your course.
5. Remember that your students will be accessing information from different platforms. Whatever you use, should be able to be seen on a desktop, laptop, tablet, and phone. PDFs may work better than Word documents. Posting materials in advance of holding a synchronous online class can make things much easier as well. In particular, think about students with disabilities, and the multiple ways that people need to access information.

Again, this isn’t just business as usual. People will get sick or will be caring for people who are sick. Stress and anxiety will increase, and will cause people to get sick with things other than the coronavirus because our immune systems don’t respond well to heightened stress and anxiety. Many of our students likely work hourly wage jobs in retail and hospitality industries that are taking a hit. They may lose hours or lose their jobs. That will enhance their financial stress. Even if schools shut down, many staff will be required to come in.

Remember that we’re among the most privileged people on earth – we get to work from home and will still have a steady paycheck. Other members of our community do not share that same privilege, and therefore will likely not respond to this crisis in the same way.

Be flexible. Be patient. Be kind.

Today there was a game changing decision in NY regarding the rights of people with disabities sitting for the bar exam.

“A federal judge in the U.S. District Court for the Eastern District of New York has ruled that the state’s board of law examiners, which administrates the New York bar exam, is subject to a federal law banning discrimination on the basis of disability from any program or activity receiving federal funding.”

It has been incredibly difficult for individuals with disabilities to receive accommodations for the NY bar for years. Hopefully, this decision will ensure that the NY Board of Law Examiners follow the law and grant accommodations when appropriate documentation is provided.

The NY Court of Appeals announced the release of a study by the National Conference of Bar Examiners on the impact of adoption of the UBE by New York State.

My takeaway from the executive summary is that racial disparity exists with UBE results, but they existed before the UBE, so NCBE is not concerned.

We must do better than this.

The legal profession is already the least diverse profession in the country. We need to do better than an exam that we know is racist, written and administered by an organization that thinks that’s ok.

While the NCBE seems to be making some strides to create a better bar exam, can we really trust that they’re the ones who should do it?

Earlier this month, Law.com interviewed Judith Gundersen, President of the National Conference of Bar Examiners (NCBE). In the last paragraph President Gundersen made some news that all bar support teachers should pay attention to.

What do you think the bar exam will look like in five years?

It’s hard to predict, but I think we might be looking at a different delivery mechanism. I think we might eventually be moving away from the Scantron sheet and bubbling in answers. There aren’t that many exams now that use paper in pencil.

President Gundersen reiterated this statement that the NCBE is focusing on how the bar exam should be delivered in the President’s Page of the September 2017 edition of the Bar Examiner. As bar support teachers, many of us spend a lot of time teaching students how to actively engage with bar exam questions on paper – to circle, underline, draw diagrams and flow charts, and make notes of legal issues that pop into their heads as they read through the question.

As I’ve discussed before, people read differently on a screen and on paper. That means that we have to start rethinking how we teach our students to engage with the material in front of them. Even if they can highlight and make notes on a question on the computer, they may want to draw diagrams on paper or jot down a quick outline for themselves. Looking down a piece of paper and up at a computer screen will take time.

This announcement also raises many questions about how the exam will be delivered if the bar does move to a completely computerized format. If the essays move online as well, will applicants be able to do a split screen and see both the question and their answer simultaneously? Are applicants going to be expected to read a whole packet of MPT materials and go back and forth between the documents on the same small computer screen where they will be typing their answer?

If the bar examiners are going online in five years, that means we only have one year until the first group of part-time 1Ls who will be facing a computerized test comes through our doors. It’s time to put our heads together to figure out best practices for teaching them how to read deeply, actively, and critically on a computer screen.

I hope that if the NCBE does make a shift in delivery mechanisms, it does so with enough lead time that students can practice taking exams with the questions on the computer screen as early as their first semester.

Over at the Legal Skills Prof Blog (a blog that I read daily, and very much appreciate), there is a post that focuses on the incredible pressure that law graduates feel to pass the bar on the first time. The post highlights a quote from an article on Above the Law about retaking the bar.

I’m grateful that the post acknowledges the outsized pressure that law school graduates  feel to pass the bar on the first try. I have often heard people speak as though their careers and lives will be over if they don’t pass the bar the first time. That isn’t true, of course, but the pressure is very real.

However, the author of the post points to law school admissions as the solution – simply stop admitting people who are unlikely to pass the bar. That analysis shifts the focus to the wrong place. Yes, law schools have a responsibility not to take money and 3-4 years from people who are unlikely to succeed in law school and on the bar exam. And, yes, law schools have a responsibility to give their students the tools they need to succeed on the bar exam.

But, it’s not law school admissions that has created the overwhelming pressure to pass the bar on the first try. The fact that first time bar passage and employment stats are seen as the only metrics of whether a law school is worthy of existence is the problem. U.S. News, law  journals, and other media outlets only focus on a school’s first time bar pass rate, as if passing the bar on the second try means you shouldn’t have been admitted to law school in the first place. That hurts our students and alums. Even the ABA is coming around to recognizing that passage rates of repeat takers matters.

We all know the stories of famous people who took the bar more than once (JFK Jr., Michelle Obama, and Hillary Clinton to name a few.) We need to start normalizing retaking the bar. Often my graduates who need to retake the bar are shocked to find out that some of the people working in their law firms and some of their faculty members didn’t pass the bar on the first try. But they only find that out after they have failed the bar and had to “come out” to those around them. We all seem to buy in to the notion that first time pass rates are all that matters. That idea is harmful to so many of our recent graduates.

Of course, we should always strive to help our students pass the bar on the first try. But, it is only through destigmatizing taking the bar more than once that we will begin to make a dent in the enormous pressure we put on recent graduates to pass the bar on the first time. That pressure itself can lead to tremendous anxiety, which gets in the way of achieving a passing score. Passing the bar on the first try is as much a psychological feat as it is an academic one.

We owe it to our students and recent graduates to do better. We also owe it to their future clients to care about the mental health of members of our profession.