Will the Bar Exam Go the Way of the 8-Track Tape?

For the times they are a-changin’. -Bob Dylan

The times certainly have changed. Almost overnight, every facet of daily life has transitioned to online delivery. Telehealth and telemedicine are becoming the primary source for doctor-patient interaction during the pandemic. Law school classes are online. College classes are online. K-12 primary education is online. Church and religious services have moved to online formats. My grocery and organic farm-to-table products —gone online. Court hearings, also online. I can buy a car, entirely online. I can have legal documents notarized online.

But I cannot take the bar exam online. At least not yet.

The COVID pandemic has tested our resolve and our ability to utilize available technology. Almost every aspect of the legal profession, from court proceedings and probate administration, to law enforcement and legal education, has mobilized for remote administration. Bar examiners at the state and national levels should hang their heads in shame for not harnessing the available technology to deliver the existing exam remotely. It is an embarrassment of epic proportions that those at the helm of legal licensure are so behind the times that the pipeline for entry to the legal profession could be closed until further notice.

Relentlessly tethered to tradition, those insistent that 2020 law grads take an exam that may not be offered until early 2021 have either dropped the ball or are hiding it. It is fundamentally unfair to require an exam for licensure and at the same time withhold that exam from licensure candidates. The cries for diploma privilege and supervised practice options have sounded around the world. To which bar examiners and high courts have responded with either feigned indifference or a proposed solution that is no more than a band-aid for a gaping wound.

To become attorneys, bar candidates should not have to risk their health or the health of their vulnerable loved ones to the spread of the coronavirus. Even today, there are still more unanswered questions than answers. The majority of U.S. jurisdictions have made no announcement as to whether they will offer an exam in July or not. A number of states have canceled the July exam, but still have not announced definitive information about the date or form of the replacement exam. Candidates across the country remain in the dark as the bar exam becomes an archaic qualifier for competence. If the bar examiners hold fast to the pencil and scantron method of testing, we can expect to see it go the way of the pay phone, the answering machine, and the 8-track tape.

Two states, California and Massachusetts, have alluded to an online exam, but with little detail. It remains unknown what role the National Conference of Bar Examiners (NCBE), who produces the multistate exams used in all states except Louisiana, will play in the online exam. If the NCBE can provide an online exam for two states, why not do so for all UBE jurisdictions? And why make candidates in other states suffer the risk of exposure to COVID or career delays by withholding the online exam?  

If the NCBE has not developed an online exam, we must ask “why not” and "where has it been for the last two decades?" And we must not accept “test security concerns” as a viable response. Test security is no less of a concern to law school faculty, and to those who administer admissions exams. Yet all law school exams and the LSAT will be offered online in May 2020. The MPRE (another NCBE exam) and other professional licensing exams are already online.

Whether the bar exam effectively assesses one’s competency to practice law is a reoccurring question that will continue to resurface.  At a time when virtually every state, except maybe Utah and Wisconsin, is under fire for indecisiveness and poor communication regarding the fate of would-be July 2020 bar takers, bar examiners are justifiably under scrutiny. As is the bar exam. The future of the exam is in the examiners’ hands. We’ve only to watch and see if they’ll respond like Blockbuster or Netflix.

(Marsha Griggs^{© 2020})