Colorado Plans for In-Person Bar Exam, Seeks to Mitigate Concerns
Colorado looks to equity in testing, other states offer essay questions and special privilege

by Avery Martinez

Correction: This article was updated on July 14, 2020 to clarify that possible disqualification for the July 2020 bar exam rested in OARC examination protocols and a medical screening questionnaire, and not in OARC rules as previously stated. Applicants who notify the Office of Attorney Admissions of disqualification under these items by July 31 are deemed to have met the notification guidelines and can apply for supervised practice.

The Colorado Bar Exam is slated to be held July 28-29, however, other states are looking at alternatives to the traditional bar exam. Some have simply postponed exams until the fall, others have flat-out cancelled the exam — and some have looked to online options and essay-only exams.

Colorado is among eighteen states planning to go ahead with the scheduled July exam. The plan has drawn concern — and a petition — from prospective test takers, but Colorado Supreme Court Attorney Regulation Counsel Jessica Yates seeks to quell some of the concerns.

In addition to Colorado, Alabama, Idaho, Iowa, Kansas, Kentucky, Montana, Nebraska, North Carolina, North Dakota, Oklahoma and Virginia are some states slated for an in-person exam this month, according to information from the National Conference of Bar Examiners. Minnesota is also allowing applicants to transfer to the February or July 2021 exam without filing a new application, as well as offering supervised practice options for recent grads.

For Colorado, “we feel we’ve got the right balance,” said Jessica Yates, Colorado Supreme Court attorney regulation counsel. She added that extensive conversations were held with state and local level health agencies in Colorado about how best to approach the exam with groups like the Colorado Department of Health and Environment and the Tri-County Health Department.

Currently, the plan outlined for the Colorado exam has students taking the exam in three different locations, split by their physical addresses and where they attended law school. Both the University of Colorado and the University of Denver will provide spaces for the exam at their law schools, while the usual testing facility at The Denver Mart will hold others, including those from out of state.

“Basically, [the public health agencies] said we were thinking about all the right things,” Yates said. “Masks, six-foot distances, minimal in-person interaction, smaller groups traveling through the facility, making sure hand sanitizer is available, making sure people aren’t touching things and then booklets — and just generally minimizing the need for administrators and examinees to interact with one another.”

However, there has been concern among recent law school graduates over the decision to host an in-person bar exam. An online petition requesting an alternative to the bar exam was circulated last week, and as of Wednesday, the petition had over 1,600 signatures. Yates said students and the public had every right to air concerns, and her office was investigating many of them, but some points that were raised were based on misinformation, she said.

The petition, listed on change.org, specifically addresses the Colorado Supreme Court asking for an alternative to the exam. “Continuing with an in-person examination in the midst of a global pandemic forces students into an impossible choice,” the petition states. This choice is between “substantially delaying” their career and risking lives and loved ones. “Examinees have to hope that their body temperature does not disqualify them from sitting for the exam and that they will be able to wear a mask for six hours while focusing on a high-stress and time-oriented exam.”

The petition lists alternative options such as providing diploma privilege to all 2020 graduates in Colorado, a one-day remote exam and requiring grads to practice for a set number of hours under the guidance of Colorado attorneys. Many of these options have been offered in other states as well.

Yates said that other professional degree programs were researched and consulted about the exam. She noted that board exams for medical schools and residents are still being held “live” very similar to the requirements for the Colorado bar exam.

The Colorado Supreme Court revised an emergency rule Thursday allowing for individuals who transfer their application to the February 2021 exam to be able to apply for certified limited supervised practice, Yates said.

The rule, which takes effect Aug. 1, is for all applicants who meet eligibility requirements, and notify the Office of Attorney Admissions of the transfer of their exam in writing by July 20, according to the rule. In addition, disqualification for the exam can occur if the applicant cannot satisfy medical screening questions or temperature checks, Yates said. According to the rule, if these applicants notify the OAA in writing between July 20 and July 31 of their disqualification under the screening questions and checks, they will be deemed to have met the notification deadline. “If that happens, they can simply let us know by July 31 and we will allow them to apply for certification for supervised practice,” Yates said.

The rule expires a week after the last scheduled swearing-in ceremony with the February 2021 bar exam, and “all other applicants” for the July bar exam are ineligible for certification “unless the July 2020 examination is postponed,” according to the rule. The court can extend the time limits.

Any other applicant registered for the July bar exam is “ineligible for certification” under the rule, — unless the July 2020 exam is postponed, according to the rule. If the July exam is postponed, and for those registered for that exam, the rule expires seven days past the “last scheduled swearing-in ceremony corresponding with the first Colorado bar examination that is held” after the rule’s date.

Elsewhere, a portion of states have simply rescheduled the July exam for the end of September and early October. These include Alaska, Delaware, California, Hawaii, Illinois, Maine, Maryland, New Hampshire, Ohio, Rhode Island; as well as territories like Guam. Texas plans to hold both an in-person exam in September and options for an online test in October.

Still, states and districts have canceled in-person exams looking to other options. In the District of Columbia, a remote exam will be held in October which only allows for local admission in lieu of the UBE. States holding remote testing include Nevada, Arizona, Massachusetts, Michigan and Florida, many of whom offer similar local admission options. In Florida, the test will consist of 100 multiple choice questions and an essay section.

Alternative testing in other areas have had some “interesting experiences,” Yates added. For online testing, she pointed to one case where advanced placement tests were administered by the group College Board and led to issues that ultimately resulted in a class-action lawsuit being filed.

According to The Washington Post, the suit was filed in federal court on behalf of those who took online AP tests, test-takers faced unequal testing environments, technical issues and the inability of some to submit their answers. When students asked about issues with WiFi availability for the test, the suit states that the College Board told a student to use free WiFi at a McDonalds when they “ran into technical trouble submitting their answers.” The suit demands the College Board score their answers instead of requiring retesting, provide “hundreds of millions” in monetary relief and more than $500 million in compensatory damages. Further, the suit alleges that the inability of students to provide answers was the fault of creators and charges the College Board with breach of contract, gross negligence, misrepresentation and violation of the Americans with Disabilities Act.

“It’s sort of Exhibit A in terms of what can go wrong when you rush to put a test online,” Yates said. Another major issue of online testing revolves around equities in testing, Yates said. Many people do not have reliable enough internet to depend on an online exam, and others may not have a quiet and reserved space for taking such a test. All of these concerns can be mitigated when centralized facilities are used for exams, she added.

Mitigating other issues with testing, South Dakota announced that if NCBE materials aren’t available for the July exam administration, the state board of bar examiners is authorized to create a 10-question essay exam. Applicants can opt for taking the regular bar exam in 2021 — if they so choose.

The Oregon Supreme Court announced that a “one-time diploma privilege” would be given to candidates who submitted timely and complete applications for the July exam who either graduated in 2020 from a state law school or graduated from any other ABA-accredited school with a minimum of “86% of graduates” passing the 2019 exam.

Generally, it’s a minority of states that adopted temporary diploma privilege, Yates said. Those types of privileges can be problematic for a number of reasons. One of which is the requirements for some of these types of privileges are not equitable — tending only to apply to top schools which may not be as much of an option as some lower-tier schools in monetary terms, she added.

“So, you could be the top student at a lower-tier school and not have the same opportunities as someone else,” Yates said.

Further, she noted lower-tier schools usually have more students of color enrolled. Yates said her office wanted to be sure that their actions would not reinforce inequalities already present in the legal system.

“And of course, these are all things done to protect the public. We have not just licensed attorneys — we have licensed, qualified and competent attorneys — people can be assured that there was some standard way about weighing their competency when they hire them to represent them,” Yates said.

As the situation evolves, Yates was assured a response would be made with safety as a goal. September dates are available as a “back-stop” which would be when the July bar would be rescheduled if cancelled.

This article appeared in the July 13 issue of Law Week Colorado. To read other articles from that issue, purchase a copy online.