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A resolution urging state courts of last resort to defer in-person bar exams during the COVID-19 pandemic and develop alternate plans to license candidates was adopted Tuesday by the ABA.
The vote was 256 in favor of the resolution, with 146 opposed.
“This resolution is akin to wearing a face mask. We protect others simply by reducing risk. This is a time to tell recent graduates of ABA-approved law schools that they do not need to risk their health to join us in this profession,” said Patricia Salkin, a delegate for the Section of State and Local Government Law who introduced the motion.
According to the National Conference of Bar Examiners, 24 jurisdictions had in-person July exams, and 15 have in-person exams planned for September.
In addition to postponing in-person bar exams during the coronavirus pandemic, the resolution asks that states with remote bar exams complete online platform testing “sufficiently in advance” of the test date and provide reasonable accommodations, including for test-takers who are caregivers and individuals who lack quiet spaces and reliable internet connections.
Also, the resolution calls for states to disclose what test-taker data will be collected during remote proctoring, how long it will be preserved and what measures will be in place to prevent unauthorized disclosure of data. Additionally, the writing states that remotely proctored bar exams should not penalize test takers for “natural” body movement, including lip and eye movements.
Sponsors of Resolution 10G were the Virgin Islands Bar Association, the ABA Section of State and Local Government Law, the ABA Law Student Division, the Criminal Justice Section, the Section of Dispute Resolution and the Young Lawyers Division.
Hulett “Bucky” Askew, who previously served as the ABA’s legal education consultant, is a House delegate for the National Conference of Bar Examiners and a member of its Testing Task Force, spoke in favor of postponing the measure, which was voted down by the House. While Askew was speaking at the remote gathering, his microphone went out for approximately two minutes. He came back later to finish his time and also spoke in opposition to the resolution’s passage largely on the basis of a claim that it would violate a long-standing ABA policy opposing diploma privilege.
“Does this House really want to support diploma privilege for graduates of unapproved ABA law schools? I suspect that would give the California delegates some concerns,” he said, referencing California’s many unaccredited law schools. Askew also said the resolution language was not specific regarding who could qualify for the diploma privilege option.
“I assume it means graduates from classes other than the class of 2020. It could apply to graduates who were unsuccessful in prior bars,” he said.
Darin Scheer, a Wyoming delegate who is a member of the NCBE’s board of trustees and the Wyoming Board of Law Examiners, also spoke against the resolution. According to him, state bar examiners and the NCBE were not consulted on writing the resolution, and he said that was patronizing.
“I was at a loss for words when I received this resolution late Sunday night. The manner this has been handled in the House is unprecedented, unfortunate and inappropriate. Circulating resolutions in the dark of night is not how this House does business,” he said.
Scheer also spoke of a movement seeking to end the bar exam and said state courts and licensing agencies have received many complaints from recent law school graduates regarding in-person bar exams.
“It’s not that law students have not been heard regarding these concerns; it’s that they don’t like the answers they received,” he said.
Michael H. Byowitz, a New York delegate and a member of the ABA Board of Governors, spoke in favor of the resolution. He noted that its language was not limited to diploma privilege and listed various alternatives to in-person bar exams during the COVID-19 pandemic.
“I would say emergency times call for emergency measures that are temporary but needed. This is a once-in-century occasion; let’s be flexible in these difficult times,” he said. “Frankly, we are not the decision-makers, the [states] are. If diploma privilege is a bad idea, it will not be adopted in states, but we should be as flexible as possible.”
Conisha Hackett, a recent University of Mississippi School of Law graduate and Law Student Division delegate, also spoke in favor of the resolution. She sat for the Mississippi bar exam in July and said it was a harrowing experience.
“I know no exam was worth the life of my family or your family. No exam that can be delivered through alternative methods is worth your life. In a world of uncertainty, one thing is sure: There is more than one way to prove competency to practice law than an in-person bar exam. We shouldn’t be forced to do that,” she said.
Prior to this resolution, the ABA’s Board of Governors in April approved a resolution urging states to adopt emergency rules authorizing limited practice with lawyer supervision for recent law school graduates if the coronavirus pandemic causes cancellations of July bar exams. At the time of the April resolution, only four jurisdictions had canceled or postponed bar exams, according to report accompanying 10G.
Follow along with our coverage of the 2020 ABA Annual Meeting.