A Stressful Bar Examination

The Delaware Supreme Court affirmed a decision of the Board of Bar Examiners to not award damages to an applicant who claimed a breach of accomodations

In July 2021, Murphy sat for the Delaware Bar Exam after requesting and receiving a number of accommodations from the Board. Because the 2021 Bar Exam occurred during the height of the COVID-19 pandemic, it was administered remotely, using ExamSoft software.2 Before the Exam, Murphy applied for the following accommodations: 100% extra time for the entire exam (“double-time”); authorization to use pencils, highlighters, and scratch paper; permission to read the questions out loud; stop-the-clock breaks; and use of a private room to take the Exam. The Board approved all accommodations except the stop-the-clock breaks As a result of the double-time accommodation, Murphy’s testing took place over five days.

The electronic, remote administration of the Exam resulted in unexpected technical problems for some exam takers. Many exam takers, Murphy included, experienced ExamSoft outages and other difficulties. During the Exam, Murphy’s ExamSoft software crashed three times.

She testified concerning distracting behavior by proctors 

Murphy was distracted by her exam proctors’ actions, including coughing, texting, and typing sounds. Murphy testified that she was distracted by the first proctor’s phone because it was “ringing,” but she later testified that the sound that most distracted her was the “clicking” sound produced when he typed on a laptop keyboard. She testified that the second proctor had several coughing fits during the fourth day of the exam,  though she reassured Murphy that they were the product of allergies, not COVID-19. Additionally, Murphy testified that the second proctor caused distractions by moving around the room during the fifth day of the exam. Murphy also was distracted by the second proctor’s texting, but because the phone’s sound was off, she was distracted by the sight of the proctor looking at her phone.21 Neither proctor recalled causing the alleged distractions and both testified that they did not behave with any intent to frustrate Murphy’s efforts on the Bar Exam.

But

Murphy also testified, and the Board concedes, that she was not given scratch paper during the MPT and MBE portions of the exam, despite the Board having approved her use of scratch paper for the entire exam.

She had appealed the failing grade

The Board denied the First Petition on the grounds that applicants “are not entitled ‘to a hearing to challenge their test scores’” and that the Board did not have the authority to admit an applicant who failed to achieve a passing exam score. Murphy appealed the denial to this Court on the same grounds that she petitioned the Board and sought relief in the form of waiver of the Bar Exam requirement and admission to the bar.

Remand

We also held that Murphy was not denied Due Process when the Board refused her request for a hearing because the relief she sought—waiver of minimum competence standards and admission to the bar—exceeded the Board’s “general function.” As to Murphy’s claims regarding the denial of her approved accommodations, we remanded so that a complete factual record could aid in the determination of a remedy.

On remand

In the [Board] Panel’s decision, it found that Murphy was denied scratch paper, but received her private-room and double-time accommodations. The Panel then determined that the appropriate remedy for the deprivation of scratch paper was a waiver of the exam fee—which the Board offered and the Panel adopted—and recommended that the Board approve Murphy’s accommodations again if she decided to retake the Exam.

Here the court denied a damage award

Even if the Panel had the authority to award damages, Murphy is not entitled to them. Because Murphy’s damages argument rests on this Court holding that she was deprived of all the accommodations for which she appeals, and we have concluded otherwise for the reasons set forth above, we affirm on the basis that she was not subjected to “deliberate indifference” by the Board.

(Mike Frisch)