Wednesday, October 7, 2020
As I write these words, my former students are busily working through the final session of the most unusual and stress-inducing bar examination I have ever known – one that has been twice delayed, resulting in erratic study schedules and lost employment opportunities; that is being delivered entirely online using new software, after the cancellation and hacking of online exams in other jurisdictions this summer; that permitted registration only to certain groups of law school graduates, some of whom waited on tenterhooks for weeks before finding out that they would be permitted, or not permitted, to take the exam; and that examinees had to prepare for in the midst of a global pandemic and one of the most contentious political environments in the past 150 years. The last five months have provided a cavalcade of anxiety, uncertainty, pessimism, and anger, marching in different permutations through opinion pieces, Facebook posts, public hearings, Twitter threads, and Zoom discussions, week by week, right up until yesterday at noon, when the examinees finally had to slay the dragon.
And yet. Here we are, 30 minutes or so from the end, and mostly . . . things seem okay.
Except for the odd momentary computer freeze, I have not yet received any panicked reports of tech problems – no crashed programs, no lost data. The dozen or so graduates testing on campus have been in cautiously good spirits and have reported that they felt the test has been fair. The graduates testing at home have largely been quiet, though I encouraged them to reach out to me if they encountered any difficulties.
This is lucky, to be sure. Although in the media (social and traditional) I found no reports of widespread, catastrophic system failure, there are plenty of individual reports of examinees losing data, having trouble with facial recognition software, or simply being unable to get the testing program to work. According to ExamSoft, the company whose software delivers the exam, 98.4% of the estimated 40,000 examinees had successfully started the exam by late Monday. Even if some people chose at the last minute not to take the test, that still leaves potentially several hundred frustrated examinees.
So far, my graduates have not reported problems. Still, we might just be in the eye of the hurricane. It remains to be seen if everyone can upload all the required answer and video files before tomorrow night’s deadline. An overly fastidious review of the video files captured by the remote proctoring program could lead to objectionable disputes or even disqualifications. And it is impossible to predict what the grading will be like, given the smaller number of questions, limited pool of examinees, and delay in administration, compared to an ordinary bar exam. If the results that come out in December are wildly different from those of previous years, there may be complaints that it was too hard – or too easy.
Nevertheless, the facts that we have now arrived at the end of day two of the remote examination without witnessing the “barpocalypse” some had predicted, and that we have not yet arrived at any foreseeable end to the pandemic that forced remote testing in the first place, suggest that we should at least be thinking about preparing for another remote test in February. There may be other approaches to bar admission, such as diploma privilege, that we should continue to advocate for. But there was always the danger/promise that a relatively successful remote administration would lessen resistance to future remote exams.
I am pleased to see that – at least according to the early reports from my students – the nature of the remote exam seems to have caused far less distress than the delay and uncertainty that preceded it, and which hopefully will be avoided in the future. And I am enormously proud of the effort, attitude, and skills that these examinees displayed under such extreme conditions as they prepared for and then took the exam. But the fact that the remote exam was not a total disaster does not mean that it couldn’t have worked better, or that no examinees were unfairly disadvantaged or prevented from testing. If we have to have another round of remote testing in February, let us continue to press for ongoing improvement in its administration.