By: Marie Innarelli
On October 5 and 6, 30,000 law students all over the country sat down to take an online bar exam. The exam is normally administered on the last Wednesday in July and February. However, due to the COVID-19 Pandemic, many states found it unsafe to facilitate an in-person exam and instead opted for an online version months later. The 50 states did not reach a consensus on their approach, which resulted in different states conducting the exams at different times using different methods.
The eighteen states that opted to participate in the online bar exam at the beginning of October consistently received two major criticisms. The first criticism includes discrimination against women by not permitting students to move from their testing seat for the entirety of the exam. The second criticism relates to the facial recognition technology negatively impacting people of color.
As background, the National Conference of Bar Examiners (NCBE) was founded in 1931 with a mission to “develop, maintain, and apply reasonable and uniform standards of education and character for eligibility for admission to the practice of law.” However, the bar exam is criticized for intentionally excluding individuals on the basis of race, class, and gender from becoming lawyers. Despite claims from the NAACP and the ACLU about discrimination, the NCBE oversees state bar exams as well as the Uniform Bar Exam.
Today, the bar exam is undergoing unprecedented challenges brought on by the coronavirus outbreak. Around March states began to consider amending the traditional administering of the bar exam. This brought on anxiety and fear from law students around the country as job offers (and likely major life events) were contingent upon taking and hopefully passing the July bar exam. A law student described the process of waiting to find out her fate regarding the bar exam and beginning her career as “literal hell.”
On July 28, Michigan attempted (unsuccessfully) to administer the first-ever online bar exam, as some test takers were temporarily locked out of a test module. On August 4, Indiana’s attempt at an open book test failed due to technical issues. On August 16, just three days before their scheduled exam, Florida called off the exam because it was not “technically feasible.” In response, Robert Chang, Seattle University School of Law professor and founder of the Fred T. Korematsu Center for Law and Equality, tweeted about his outrage with canceling the exam 3 days before it was scheduled, “This is cruel and unfair to the test-takers. It is harmful to the public.” After much deliberation, as well as trial and error, eighteen states ultimately decided to offer an online bar exam on October 5-6.
Original concerns of an online bar exam primarily centered around the remote proctoring. How accurate would the facial recognition be? How are individuals with extenuating physical conditions going to be monitored? Could an innocent test-taker be falsely accused of cheating because of technical difficulties? Practical concerns are very present as well. Students usually account for about two months of not working until they can start at the firms where they lined up jobs. However, pushing the exam to October further extends how long savings will need to last test takers. Additionally, for many, this will change their study plan. While it may seem as though the more time to study the better, Brian, a recent law school graduate planning to work at a big firm in LA states, “[I]f you work too long, you eventually hit a point where it’s to your detriment to keep studying.” With all of these concerns prior to the exam, one can only imagine all of the concerns after.
The presence of misogyny in this bar exam was unparalleled. Women were forced to ignore their menstrual cycles while sitting for this exam as they were not allowed to move outside of the view of their cameras. Brianna Hill, a recent law graduate living in Chicago, continued taking the exam despite her water breaking as to not be disqualified for moving outside the vision of artificial intelligence. A mere 24 hours after giving birth she finished the remaining section of the exam in a hospital bed.
Another major issue with ExamSoft was the facial recognition software refusing to verify people of color. The individuals that were impacted by this stated that after the first day of technical issues they hoped by the second day the problems would be resolved. However, even on the second day of the exam, the issues persisted.
Although ExamSoft boasts a 98% success rate from the exam, that figure discounts that 2% makes up hundreds of people negatively impacted by the shift to an online format. While modifying the bar exam experience seemed like a good idea in adjusting to these unprecedented times, it has unfortunately catastrophically impacted the lives and careers of hard-working, debt-ridden law students all over the country.
Student Bio: Marie Innarelli is a second-year law student at Suffolk University Law School and serves as a staff member on the Journal of High Technology Law. Marie holds a Bachelor of Arts in History from Hobart & William Smith Colleges.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
