Last Monday, I posted that the legal profession needed a do-over because bar examiners and Courts were going forward with in-person bar examinations this summer/fall that are – predictably – incredibly unsafe. But, the truth is, we don’t really need a do-over. We need to follow the lead of our most recent graduates.
The Class of 2020 has not only been studying hard for the bar exam, they have been organizing and advocating for each other and supporting one another in ways that demonstrate empathy and compassion. They have been collecting impact statements, partnering with Deans, attorneys, and elected officials, and drafting petitions. They have forced change across the country. Their work clearly demonstrates that they are ready to enter the legal profession.
While many bar examiners and Courts are pushing forward with the status quo – and in so doing are putting lives in danger – the Class of 2020, has given me renewed hope for the future of the legal profession. Let’s listen to them, and follow their lead.
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.
Please do not hold the bar exam this year. Do not hold it in July. Do not hold it in September. Maybe not even next February. Figure out a better way to license attorneys. There are many options.
Recent liability waivers from Mississippi and North Carolina demonstrate that you understand the serious dangers posed by taking a two-day exam in person surrounded by a lot of other people. The fact that you are finding it difficult to find proctors and are asking for help from “young attorneys” says that your own people are telling you it is too risky.
Putting hundreds, or even dozens, of stressed out people in a room together for hours and hours in the midst of a global pandemic is a public health disaster. Temperature checks only tell you if someone has a fever, not whether someone has the virus. Many transmissions if COVID-19 occur from asymptomatic individuals. Masks are helpful, but not 100% effective. Some of you are permitting masks but not requiring them, leaving many potential carriers the option of exposing those around them. Have you tried to do 100 MBE questions with a mask on? The anxiety surrounding the bar exam is immeasurably high in normal times. This, is taking it to an unimaginable new level.
There doesn’t have to be a bar exam. But if you think there does, you can do it online, as Nevada and Indiana will be doing. Those of you in UBE states may feel that you no longer have the capacity to administer your own exam. But you did it not that long ago. You can do it again. There are expert exam writers at your local law schools who can help. You could even work together and have each state draft one essay question. There are many options. Please explore them.
There are concerns about exam security. But if that is the driving force for having an in person exam, then you are prioritizing fears about cheating over the protection of human life. Do you really think so little of the next class of attorneys that they must risk their lives to prove to you that they would not cheat on an exam?
Ask yourself honestly, would you take the bar exam during this pandemic? Would you encourage your child to? Do you really want to be responsible for the next surge in your community?
You may counter that hundreds of applicants have registered so they must want to take it. But what they want is to be a licensed attorney. Their registration is a product of employer pressure, fear, and the perverse incentives of the legal profession. Despite their registration, they are terrified.
We owe it to the newest members of our profession not to sacrifice their health for the sake of the status quo. Nothing is the same right now, and it shouldn’t be. We are in the midst of a worldwide health crisis. Is the bar exam actually worth risking their lives for? Is there really no way to determine who is minimally competent to be an attorney, other than to have them all gathered together in a room for two days?
The purpose of the bar exam is, ostensibly, to protect the public. What about protecting law graduates?
These waivers may protect you from legal liability, but if you go forward with an in-person bar exam, you will still be responsible for spreading COVID-19 throughout the population of new law graduates, their friends, families, and communities. How can this possibly be the right decision?
I’m working on a list of questions regarding the physical space at bar exams this July/September. Here is the beginning of the list. If you are/were going to be taking an in-person bar exam this year, what questions would you have about the physical set-up and health and safety measures?
Will applicants be required to wear masks or face shields?
Will there be temperature checks?
How far apart will applicants be seated?
Will masks and hand sanitizer be made available to all applicants?
How far will proctors be seated from applicants?
Will proctors be wearing masks and gloves?
If a technician needs to touch an applicant’s computer, will sanitizing wipes be available to ensure the computer can be disinfected?
What will be the protocol for the lunch break? Will applicants have to leave the building?
How will social distancing be observed in the personal belonging rooms?
How will social distancing be observed in restrooms?
How will social distancing be observed in security lines and when exiting the exam room?
Who will determine if an applicant who appears for the exam cannot sit for the exam on the scheduled dates? Will they be given a refund?
If an applicant does not feel that the situation is safe and withdraws from the exam, can they obtain a refund?
Out of state applicants may be required to quarantine for 14 days prior to the start of the exam.
Can we please just end this now? I am tired of having to counsel my students through various decisions based on how sick they might get if they choose to take an exam at a certain time or in a different state, because legal employers insist that they take the next bar exam, and bar examiners are determined to go forward with traditional testing, regardless of whether it is safe or healthy to do so.
Are we really so beholden to the status quo that we completely disregard the physical and mental health of our recent graduates? How can we be so cavalier and heartless as a profession? Is this how we want new attorneys to approach their jobs? Work at all costs, even if it could make you and those around you physically sick?
Excellent attorneys are forward-thinking and demonstrate compassion. They can change course and make a new plan when their current strategy isn’t working. They make a plan, reflect on that plan, and make a new plan.
The fact that this is really the plan for the class of 2020 demonstrates none of these qualities. Maybe the bar exam doesn’t test minimal competency after all.
But what is the point of law school, if not to teach students to become passionate, ethical advocates? Further, the concept of subjectivity is not foreign to the bar exam. There is subjectivity in every part of the bar exam (yes, even the MBE). There is inconsistency among graders in the same jurisdiction, and across states that have adopted the UBE. Additionally, not every applicant achieves the same exact score on the bar exam, so there is always a variation, even if you believe that a UBE score is a valuable indication of being qualified to practice law.
Law schools can work with students and the legal community to find supervised practice placements, and can help to make sure no student is left behind. Centering the bar exam as the method for eliminating disparity in the legal profession is disingenuous and appalling.
At the end of the white paper, NCBE doubles down on its argument that law students today are “less qualified” than they used to be because law schools have lowered admissions standards (meaning LSAT and UGPAs have declined some). This argument ignores the fact that those traditional academic indicators share many of the same defects as the bar exam itself.
While a strong defense of the bar exam is to be expected from the NCBE, I hope that this white paper is a wake-up call to lawyers, law students, and law schools that defend the bar exam and the NCBE, as their disdain for us all comes through quite clearly. It’s really a wonder that any of us have ever been allowed to practice law given how unqualified and student-centered we are.
This is a very tough moment. The last semester of law school is supposed to be filled with making your last memories as a student. Instead, you are in your home, away from your friends and mentors. You won’t be able to have the in-person graduation ceremony this May that you and your loved ones have been looking forward to. Now, New York has postponed the July bar exam, and other states are likely to follow suit. Anxiety about finding jobs is at an all-time high as legal service providers, government agencies, and law firms are all working remotely. Things feel bleak, I know.
This juncture is unlike anything we have ever faced as a country, and I am not going to pretend that I fully understand what you are going through, or that I have all of the answers. All I can say is that I really do believe it will get better. Having graduated law school in 2009 during the last recession, and having worked with law students full-time for nearly a decade, I can tell you that things do work out. Many times, though, it takes more time and resources than originally anticipated. I have seen students in all manner of devastating situations figure it out (with help and support), and go on to have their dream careers.
Now is the time to figure out who is in your support network and how you can get help. As a Law School, we will be working hard to find ways to get you resources, but I know it won’t be enough to help everyone meet all of their needs until they find permanent employment. The time has come to shift your thinking to more long-term planning. The good news is that in the long game, things will look much better.
After we are out of this immediate crisis, there will be even more unmet legal needs than there are today. The pandemic has exacerbated inequality and has hit already vulnerable communities the hardest. The work is waiting for you. There will be resources devoted to it.
This situation is not yours alone to fix. The legal community needs to rally around you in this moment. And, so this message is as much to you as it is a call of action to my colleagues in the legal world.
Law schools need to offer you continued support to finish your semester, and get you through a bar exam, whenever it may be.
Legal employers need to step up and change their hiring practices now so that you can have jobs that will allow you to take a bar exam in the fall.
Lawyers need to donate money right now to help you stay afloat during this time of uncertainty.
Bar examiners need to pause the charade that the bar exam is the best method of determining whether someone is competent to practice law, and enact diploma privilege immediately, so that we can get you on the front lines of legal services as soon as law school ends in May.
If I were standing before you today (and I wish I were), I would leave you with this thought: Things are not as you expected them right now, but that does not mean that your dream of becoming a lawyer will not come true. All of us have had to shift our thinking and planning because of this previously unimaginable crisis. But we need you in the legal profession now more than ever. I know I speak for law professors and lawyers everywhere when I say that while the next several months won’t be easy, we have your back and we are with you. We will get through this together.
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.
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.
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.
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.
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.
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.
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.