The use of facial recognition technology with the remote bar exam could have an unlawful disparate impact on test-takers who are women or people of color, the Lawyers’ Committee for Civil Rights Under Law wrote in a Feb. 10 demand letter, which was sent to the State Bar of California.
If the bar does not immediately take steps to remove the technology from the February 2021 exam, which is scheduled to start in about two weeks, the civil rights group will take legal action, the letter states.
It was sent on behalf of Ian To, a California bar applicant, and the National Association for Equity in the Legal Profession, which Bloomberg News describes as a successor group to United for Diploma Privilege, a national advocacy group.
Noah Baron, a counsel with the lawyers’ committee, told the ABA Journal that the focus for now is on California, but the committee is concerned about other jurisdictions, as well.
“Hopefully, our letter makes them reconsider that decision and understand the seriousness of this matter,” Baron wrote in an email to the ABA Journal.
He is also a fellow with the committee’s Jerry Shestack Justice Fellowship, which was named in honor of a former ABA president who helped found the ABA’s Section of Individual Rights and Responsibilities, now known as the Section of Civil Rights and Social Justice.
On Thursday, the State Bar of California told the ABA Journal that it was reviewing the demand letter, which was also sent to bar exam software provider ExamSoft.
Nici Sandberg, ExamSoft’s associate director of marketing content and communications, told the ABA Journal that “ExamSoft’s optional identity verification features are used at the discretion of the jurisdictions.”
According to the National Conference of Bar Examiners, which provides testing materials for remote and in-person bar exams, jurisdictions must have a process to confirm the identities of test-takers.
“This helps ensure a fair exam for all candidates. Jurisdictions administering the remote exam are required to use ExamSoft’s platform, which includes obtaining an image as part of the candidate login process and using remote proctoring tools,” a spokesperson told the Journal in an email.