My sense is that a lot of practicing attorneys and legal academics have no idea just how bad the bar exam situation is for 2020 graduates right now. I want to share a bit about what's going on for me and my peers right now.
I want to be clear that my purpose here is not to whine or look for sympathy (though I suspect there will be folks who come along in the comments to misunderstand me as doing that!) It's to shed light on something that I think is seriously impacting people but going unnoticed.
Each state is doing something different with respect to the exam in light of COVID. The only thing consistent across nearly every state is that the decision making reflects a lack of understanding and concern for test takers and their health, finances, and careers.
From what I can tell, there have been six-ish buckets of approaches to dealing with the exam. All but one of them leave exam takers in a bad situation in one way or another. I want to share about how each of these approaches is actually impacting me and my peers on the ground.
Here are the six buckets I'm working with. (Give me a heads up if it feels like your jurisdiction doesn't fit in these.)
1. Business as usual
2. Business as usual, but later.
3. Less People, plus one of the above
4. Go online.
5. Go online, but later.
6. Diploma privilege.
1. Business as usual
2. Business as usual, but later.
3. Less People, plus one of the above
4. Go online.
5. Go online, but later.
6. Diploma privilege.
First: business as usual. Close to my heart because it's what my jurisdiction is doing.
Some states are going forward with an in person exam at the end of July as if a global pandemic were not happening. What's the problem? Importantly, that a global pandemic IS happening.
Some states are going forward with an in person exam at the end of July as if a global pandemic were not happening. What's the problem? Importantly, that a global pandemic IS happening.
Test takers are studying for these exams feeling like we have no idea whether they are actually going to take place. If you think that makes the already herculean task of studying for the bar exam much more difficult, you are correct!
There is a consensus among a lot of us that these exams likely won't go forward, especially with the expected spikes in COVID cases. But of course, we don't know that for sure, so we keep studying.
So a lot of us aren't earning money. That's okay, if the exam goes forward.
So a lot of us aren't earning money. That's okay, if the exam goes forward.
If it doesn't go forward, though? We will still need to be studying (because if you've taken the bar you know, memorization is so essential that you can't just pick any two months to study and then rest before the bar.) But we also will run out of money, and we will need to work.
Beyond the challenge of studying while working, some of us won't have paid work to go to, because our planned jobs were counting on us being barred and will delay our start until that happens.
Worse, test takers don't even really know what will happen if July is cancelled.
Some "business as usual" states have added an additional September exam in case they have to cancel or in case applicants can't make the July exam work. But some have not, including my own bar.
Some "business as usual" states have added an additional September exam in case they have to cancel or in case applicants can't make the July exam work. But some have not, including my own bar.
So if my bar (and others like it) cancel, will we have to wait until February to take the exam? What will happen to us–– financially, career-wise–– in the meantime? We don't know.
And that's just if the exam DOESN'T go forward.
And that's just if the exam DOESN'T go forward.
If the exams do happen in business as usual jurisdictions.... it's kind of unthinkable.
Immunocompromised test takers, folks who are caregivers for those at risk, etc. will have to make a decision to risk lives to sit for the exam.
Immunocompromised test takers, folks who are caregivers for those at risk, etc. will have to make a decision to risk lives to sit for the exam.
And it looks like they won't get to make an informed decision. Bars have been cagey about providing information about what their health and safety measures look like. Some have admonished us not to call the office because they don't have information to give us.
Some jurisdictions are making test takers sign waivers or including assumption of risk clauses in their paperwork so that they can't be liable when test takers inevitably get sick. (Especially fun since many people may lose insurance coverage after graduation.)
And if this doesn't sound good to you, your choice is to forego the exam to take it at a later date, when it still might not be safe, and let your career and finances suffer the consequences.
Meanwhile, test takers have hundreds of dollars of test fees tied up in the system.
Meanwhile, test takers have hundreds of dollars of test fees tied up in the system.
So THAT'S "business as usual" states. "Business as usual but later" states have a similar set of issues, though in these states, test takers are set up suffer more financial and career consequences.
These are folks who had set up their finances to carry them through two months of bar prep, who are now looking at four or more. They will have to borrow or work (if work is available) or some combination.
They'll have to hope that working won't impact their chances of passing, but to be completely frank, I'm not sure how it couldn't. Studying is hard enough.
Some will feel major career consequences of not being able to start "lawyer" work for months after they anticipated.
Some will feel major career consequences of not being able to start "lawyer" work for months after they anticipated.
Some folks (it me!) will have elected to pursue careers like PDs offices, Legal Aid, etc. that really cannot pay graduates until bar passage or at least after they've taken the exam. Those things will be delayed, delayed, delayed.
In the meantime, we'll find work if we can. Much of it won't be legal work.
And all of this to take an exam that, again, may or may not happen. And that may or may not be safe.
And all of this to take an exam that, again, may or may not happen. And that may or may not be safe.
There's a risk, too, that these exam dates will continue to get pushed. It's already happening. Some September exams are now October exams.
Anyway, that's "business as usual but later."
Anyway, that's "business as usual but later."
Some jurisdictions are trying to protect test takers by limiting the amount of people who can sit for the exam. It's more responsible, from a health perspective, than business as usual. But it's been a disaster for students.
New York is the big offender here. They've limited seat numbers & enacted a priority system that preferences graduates of New York law schools. (Is this Constitutional? Who's to say!) If you graduated from a non-NY school and have accepted a job offer in NY, you aren't priority.
So now, people can't get barred in the jurisdiction where their jobs are. That's a disaster.
Some people have elected to take the exam in states where their score will transfer to NY. That seemed like a good solution, until some stuff went down that we'll get to later. But spoiler: a lot of peoples' scores aren't going to transfer after all!
NY has recently opened up another round of seats and required people to put down a money deposit (I think $250) to preserve the possibility of getting selected to sit. But it's not clear when people will know if they can sit for the exam.
Meanwhile, most people who have put down this deposit have a seat in another bar's administration. So they are already out a lot of money, and already studying for an exam somewhere else that may or may not happen. Plus spending more money to have no idea what's going on in NY.
That's "Less People." Good in theory, just absolutely horrifying in execution.
Now some jurisdictions have done something that I think is the rightest thing we've discussed so far, but is still going to hurt a lot of test takers: Going online.
Now some jurisdictions have done something that I think is the rightest thing we've discussed so far, but is still going to hurt a lot of test takers: Going online.
Some jurisdictions have elected to administer an online exam. This is obviously the very safest choice for administering an exam to applicants and examiners.
Most states that have done this have changed their test format in some way to accommodate online. Some have gone open book. It has required some flexibility, but a few states have risen to the challenge.
So what are the issues?
So what are the issues?
Well for one, logistical. The idea of taking the bar exam on my apartment's spotty wifi kind of gives me hives. I'm not trying to write the whole exam only to not be able to submit it, or something. Nightmare fuel.
There are other things, like folks not having a good place to sit for the exam. Maybe people have young kids at home. Maybe they don't have a desk. Maybe they share a studio apartment. None of these things are conducive to exam success.
And this major little thing: it turns out that at this point, online exam scores won't be transferrable between jurisdictions.
Since the UBE became widely adopted, a lot of test takers have tended to take the exam in a jurisdiction that may not be where they intend to practice. In fact, I was actually given the advice /to/ do this! Because the score transfers. But not for online exam takers this year.
So this is bad, generally. But specifically, remember the poor New York folks from earlier? The ones who couldn't get a priority seat and wisely said, "Eh, I'll take DC. I can get in there, and the scores will transfer!"
Yeah, RIP them. The scores will not transfer.
Yeah, RIP them. The scores will not transfer.
So that's online. There really isn't much more to say about "Online but later," except to explain. Some places haven't been planning to go online and are making a late switch to do so. Now those places are having to further delay their exam to plan–– some to October.
The "but later" problems here are the same, generally, as the "but later" problems outlined above. Bad financial and career consequences, lots of waiting and anxiety.
So the final option, and in my opinion the only that effectively deals with all of these problems: Diploma Privilege. Two states–– Washington and Utah–– have gone this route (and Wisconsin regularly offers it non-pandemic times.)
Diploma privilege would, in recognition of the fact that we are in a GLOBAL PANDEMIC, allow this class of graduates to be admitted to the bar on the basis of having graduated law school.
No exam. No one sits in a room and gets sick. No one has to postpone their job. No one curses their wi-fi connection or toddler while trying to submit an exam.
And look–– it doesn't have to be like, some sort of lawless thing. Folks have discussed making it conditional.
And look–– it doesn't have to be like, some sort of lawless thing. Folks have discussed making it conditional.
Maybe in order to receive privilege, students had to achieve a certain GPA. Maybe their law school has to be accredited. Maybe they need to have completed or to be willing to complete a certain number of supervised hours.
I don't know if any of those things are the best conditions, but they are all possible conditions.
And they are all better things than holding onto an exam because it's what we've always done, and meanwhile putting folks' health, finances, and careers at risk.
And they are all better things than holding onto an exam because it's what we've always done, and meanwhile putting folks' health, finances, and careers at risk.
Anyway, that's a real option. It's a way we could solve this problem.
I can speak for myself in saying I'd even be fine with the bar keeping my exam fee, if that's what this is all about.
(Like I would definitely think it would be more fair to return it, but look, fine.)
I can speak for myself in saying I'd even be fine with the bar keeping my exam fee, if that's what this is all about.
(Like I would definitely think it would be more fair to return it, but look, fine.)
I can tell you that I have looked forward to joining this profession for years. My first experience with it has been really disheartening because it has shown me that the powers that be aren't super concerned with my wellbeing. I'm not alone in feeling that way.
Anyway, this is all a problem. And it is not the worst thing happening in the world. But it is not okay. It is impacting graduates unfairly. And as with most things, the impacts are going to be disproportionately felt by those who are already struggling.
It is unfair. A lot of things are right now–– that's kind of part of a global pandemic, I guess. But this is an unfair thing that the powers that be could begin to address if they wanted to. So far they aren't.
I think part of that is because they aren't being challenged to do it in an organized way, and part of that is because people don't understand how bad the situation is. So this is a little bit about that.
And uh, that's all for now.
And uh, that's all for now.
This took less time than I anticipated!
Okay, this got some traction? So I'm going to flesh it out with more info and resources I'm seeing in the comments. First, resources. Follow @diplomaprivileg, @DiplomaPriv4All.
(I know there are other accounts, I'm sorry, I'm just sorting through a lot of comments and these were two big ones.)
Also, see barcovid19.org for a general compilation of resources.
Also, see barcovid19.org for a general compilation of resources.
Importantly, that article deals with a less discussed but important point: The bar exam was initially created to limit the number of attorneys, often with the goal of excluding attorneys of color specifically. This article addresses that further.
thenation.com/article/archiv…
thenation.com/article/archiv…
Here is one perspective on how this can impact students that are not US citizens, which I'm embarrassed that I didn't consider.
Just a tidbit: those students that are putting down deposits in New York in hopes of getting a seat for the bar? Turns out they aren't getting their money back if they don't get to sit for the exam.
And finally, this:
Okay, not finally: If you'd like to do a little to fight against unfair testing practices more broadly, this fundraiser looks like a great way to contribute.
