Thursday, August 18, 2022

COVID And The Bar Exam

Two decisions of the Delaware Supreme Court express sympathy - but grant no relief - to COVID remote test takers.

One applicant is named and secured a remand

At the height of the COVID-19 pandemic in 2020, the Delaware Supreme Court cancelled the Delaware Bar Exam. In 2021, with the pandemic still causing unprecedented illness and death, the Board of Bar Examiners administered the Bar Exam but required all applicants to take it remotely using the ExamSoft software program.

The 2021 Bar Exam was the first time the Delaware Board, and many boards across the country, administered a bar exam remotely. There were teething pains. Some applicants experienced screen freezes. Others had crashes requiring restarts. After reviewing the technical problems and consulting a grading expert, the Board increased the scores for applicants who had to restart their computers.

Marla Murphy sat for the 2021 Bar Exam and received an increase in her score for technical difficulties but did not pass. She petitioned the Board for a hearing and argued that the Board’s grade adjustments in response to software difficulties were arbitrary and capricious, and the Board did not adequately execute her approved testing accommodations. Murphy asked the Board to bypass the Board’s and this Court’s admission requirements and grant her admission to the Delaware Bar.

The Board denied Murphy’s petition for a hearing. The Board reasoned that, under its rules, it must treat all scores as final once released and all applicants must attain a certain score to qualify for admission to the Delaware Bar. Because Murphy was challenging her test scores and requested admission to the Bar as her only remedy, the Board found that it could not grant the relief she sought.

On appeal, Murphy claims that the Board employed an arbitrary score adjustment procedure to address technical issues during the Exam. She also contends that her specific technical difficulties with the Exam software, the lack of
a paper copy of the Exam, and alleged distracting behavior by her in-person proctor resulted in an effective denial of the testing accommodations approved by the Board.

As she did before the Board, Murphy requests admission to the Delaware Bar, even though she did not achieve a passing score on the 2021 Bar Exam. The Board has done its best to navigate the Delaware Bar Exam through the COVID-19 pandemic. We sympathize with the difficulties Murphy and all applicants experienced with the 2021 Bar Exam. But we conclude that the score increases for certain applicants, including Murphy, were not arbitrary or manifestly unfair and met constitutional requirements. We also find that neither the Board nor the Court can waive its admission requirements and admit Murphy to the Delaware Bar.

Finally, for Murphy’s Americans with Disabilities Act claim, the Board did not conduct a hearing to determine whether Murphy was denied the accommodations approved by the Board during administration of the Exam. Even though waiver of admission requirements is not a remedy available to Murphy for ADA violations, if Murphy intends to pursue some other remedy for those claims following appeal, the Board should conduct a hearing and determine whether Murphy’s approved accommodations were not provided during administration of the Exam. The determination of the appropriateness of any remedy should occur only following the development of the factual record in the event the Board determines that the ADA accommodations were not provided and executed as approved.

The other is identified by number

We have the utmost sympathy for the Applicant, and all applicants who had to contend with technical difficulties during the 2021 remote Bar Exam. But the remedy the Applicant seeks—waiver of the Board’s and the Court’s Bar admission requirements and a hearing to demonstrate his fitness for Bar admission—is not a remedy this Court will award. The Court will not revisit an applicant’s grade or waive admission requirements. And the Applicant’s remedy for defects in exam administration is to retake the Bar Exam free from any legal deficiencies. In any event, we find that the Board’s grading procedures for the 2021 Bar Exam withstand constitutional scrutiny, and the Applicant did not timely appeal his scratch paper accommodation request. Thus, the Board’s decision is affirmed.

No cohort of law graduates ever had to endure the bar exam under more stressful conditions than these test takers. (Mike Frisch)

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