I awoke this morning with a deep sense of sadness and failure. Twenty-three states are holding in-person bar exams next week. Others are holding in-person exams in September, or online exams in October. Given the state of our country’s pandemic, all of these options are profoundly problematic. We are literally asking people to risk their lives to enter the legal profession. Only a handful of states have recognized the value of diploma privilege. (For a complete account of bar decisions over the past several months, see Epic Fail by Professor Marsha Griggs.)
I have been vocal about my criticism of bar examiners and courts. But, the truth is that this is our fault too. The NY Court of Appeals made a decision regarding the licensing of future attorneys without any engagement with law schools. The Deans of New York’s fifteen law schools met every week over the past several months and tried to engage the Court numerous times. Instead, the Court appointed a working group that did not have a single law school dean or law professor on it. While this was the Court’s decision, I think it’s our fault too.
Legal education has changed considerably over the past two decades. We now focus much more on experiential education, clinical education, and student-centered learning outcomes than legal education of the 20th century did. But, most of the decision-makers who govern licensing in our profession did not go to law school in this century, and we have not convinced them that law schools have changed at all. Even younger decision-makers have not expressed uniform support for diploma privilege, choosing a test that has a documented disparate impact on applicants of color and women, over trusting that law schools have prepared students to practice law.
When faced with difficult decisions, people fall back on their experience to guide them. We clearly have not done a good enough job of making sure that our profession’s decision-makers know that the law school that they experienced is not the law school of today. In the short time that I have been on this side of legal education, I have seen a rapidly evolving landscape. I have found it difficult to keep up, and I’m on the inside. Those on the outside have not seen any of it.
So, today I am asking my fellow legal educators to be more visible. Step out of our (home) offices and get more involved with the practicing bar. I certainly have not been good at doing this, everything else always seems to be more pressing. But we owe it to the future members of the profession to try harder. I have no doubt that the Class of 2020 will work to upend current licensing practices. We need to do our part too.
There has been some chatter on Twitter recently regarding threats to members of the Class of 2020 who are advocating for diploma privilege. These threats insinuate that the advocates will have trouble getting through the character and fitness process if they are outspoken about the inequity of going forward with a bar exam this year.
This is a dangerous perversion of the character and fitness process. The character and fitness process is a client protection mechanism. The process exists to ensure that individuals who enter the legal profession put their clients’ needs first and know how to handle client funds. The process is not without flaws of course (see, i.e. problematic questions about mental health histories, and financial history questions that were clearly not drafted by someone who has ever struggled financially), but it is supposed to make sure that lawyers understand that their responsibility is to their clients first, and that the legal profession is, at its core, a service profession. That goal is laudible.
The character and fitness process is not supposed to quell the speech of attorneys or future attorneys. It is not supposed to be used as a shield to protect the legal profession from criticism. It is certainly not supposed to scare recent graduates into submission so that licensing authorities can callously ignore current conditions and continue the gate-keeping status quo, setting back all efforts to diversify the profession and failing to take seriously this unique moment in history.
Our most recent law graduates are dealing with unimaginable stress right now. Our country is dealing with an unprecedented global pandemic. People are getting sick, and their loved ones are getting sick. They are trying to study for a bar exam — a normally extremely stressful process — that is now literally requiring them to risk their lives and those of their loved ones. Even those states that will be administering an online exam are ignoring the inequities of doing so. Many law graduates live in close quarters, and do not have quiet places to study or reliable internet. Taking a two-day exam at home with no interruption is nearly impossible. If a child or a dog walks into the room, they will automatically fail the bar exam. Is that really how we want to determine who becomes an attorney? By who has the resources to have a quiet home for two full days? I know that I would surely fail under these conditions as one of my two children appear in nearly every meeting I have these days. I guess I should give up my law license because my 1 year old doesn’t understand that he should be quiet all day every day while I work from home. But I digress…
We need to be lifting up and fighting for our most recent law graduates (both members of the Class of 2020 and those who graduated before them and are still going through the bar examination and licensing processes). We must all stand up to threats – vague or direct – from members of character and fitness committees, licensing boards, and others, who would rather have those impacted the most remain silent so they don’t have to face the reality that holding bar exams right now is inequitable, dangerous, and wrong. We need to say no to attempts to silence bar studiers, and instead amplify their voices.
I am looking forward to the reckoning that will come when members of the Class of 2020 get admitted, take over licensing boards and character and fitness committees, and reimagine what equity and diversity in the legal profession really look like. I believe that change will come.
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.