Remote bar exams look to disappear in the future, as the National Conference of Bar Examiners released guidance stating that future bar exams will be conducted in-person and on paper — COVID and public health concerns permitting. Colorado, as one of many states using the Uniform Bar Exam, looks to also sunset the remote exams.
“Remote exams have been a valuable stopgap for jurisdictions during this time, allowing examinees to take the test without having to gather in a larger group,” NCBE Director of Test Development, Operations and Security Beth Hill said. “However, remote exams create challenges for exam security and uniformity, and for this reason, we have consistently advocated for in-person testing as the best option whenever possible.”
Colorado offered both in-person and remote bar exam options in 2020 and throughout this year, with concerns over safety, health and security expressed by multiple groups ranging from attorneys, to state supreme court personnel and examinees.
“Colorado is a Uniform Bar Exam jurisdiction, so we only offer the bar exam created by the National Conference of Bar Examiners,” Jessica Yates, Colorado Attorney Regulation Counsel, told Law Week. “NCBE has already stated that it will not offer a remote exam in February 2022 unless public health orders preclude an in-person exam.”
In June, the NCBE announced that they were anticipating a return to in-person testing as soon as the upcoming February 2022 exam, returning back to “paper-based in-person testing only.” The announcement also notes that restrictions from public health authorities prohibiting an in-person exam in a jurisdiction could cause an exception to this decision.
However, Hill also noted that both the NCBE and individual jurisdictions need to continue to monitor public health changes when considering future in-person exams. “Although conditions appear to be improving, NCBE recognizes that any jurisdiction’s public health authority may establish that candidates cannot test in person. Should that occur, we are committed to working with that jurisdiction on a solution that will enable its candidates to take the bar exam,” she said.
“Prior to the COVID-19 pandemic, the bar exam had been administered by each jurisdiction in person, in a secure, proctored testing environment,” the NCBE release states, adding that the July 2021 exam is anticipated to be the final exam including remote options.
Throughout 2020 and 2021, the NCBE made remote bars available for jurisdictions due to the pandemic. However, the NCBE has advocated in-person testing as “the best mode of administration of the bar exam,” according to the release.
According to statistics provided by the NCBE on the 2020 exams, due to the pandemic, most jurisdictions made modifications to their July 2020 exam administration. A total of 20 jurisdictions administered a remote test for the exam, and Colorado did not opt for a remote bar administration.
That July 2020 Colorado bar made headlines across the country as, despite the precautions put in place to protect examinees, an asymptomatic test-taker exposed an entire group of examinees to COVID-19 causing consternation and concern by both students, professors and the law community.
One of those individuals affected and concerned by the in-person July 2020 exam was Andrew Shulman, graduate of the University of Denver Strum College of Law. He voiced his concerns over the in-person exam, and his concerns about the need for a bar exam with Law Week previously. Of this new decision by the NCBE, he said, “Given the risks COVID-19 still poses, the failure to identify a competent software company, and the irrelevance and biased nature of the bar exam, it is unconscionable and yet unsurprising the NCBE is promoting ‘business as usual to the best of our ability,’ rather than finding a safe, effective, and fair method of ensuring new attorneys are competent.”
“Broadly speaking, a return to business as usual in our licensing process is a real disappointment,” said Logan Cornett, director of research for the Institute for the Advancement of the American Legal System at DU, and co-author of the report Building a Better Bar, which examined research about the effectiveness, success and need for a bar exam.
The pandemic ofrced the legal community into a conversation about the bar exam and its efficacy overall as an approach to licensure, Cornett explained. She went on to add that there was no evidence of the exam protecting the consumer from harm, has disparate effects on minoritized individuals, perpetuates inequities and doesn’t test for minimum competence. “But I think the real question we need to be asking ourselves is whether the bar exam is the right way to license lawyers,” Cornett said.
The next Colorado bar exam, back in February, was administered remotely using software that the NCBE created for remote examination. This remote exam included multiple steps, trainings to set up the program on a personal computer, the use of artificial intelligence to map faces and an extended review time to determine possibilities of cheating. The July 2021 exam was presented remotely as well.
Cornett added that she wasn’t surprised to hear that the NCBE was moving back to in-person and paper-based exams. “I know there were some fairly extreme technology and software-related c challenges for many people who took the exam remotely, though I’m not sure that means it’s impossible to successfully administer an exam electronically versus on paper.”
Another DU law student affected by the July 2020 bar exam exposure was Taylor Volkman, who has immunocompromised parents. He previously described to Law Week the toll of the stress on himself, and the concern he had for returning to his parents home after finishing the exam. Volkman said that he’s disheartened by the lack of accountability or change after the exposure scenario and the technological challenges of the bar.
Volkman pointed to how during the recently completed July 2021 exam, some students had to Tweet the remote exam vendor in order to get tech support, as reported by Above the Law. He mentioned that previous examinees had faced similar situations, and also said he didn’t believe that the bar exam tested minimum competence or really prepared attorneys for practice.
“That all leads me to the conclusion that the exam is a hazing ritual — current lawyers suffered through it, so anyone else who wants to be a lawyer must do the same,” Volkman said. “I sincerely hope that the legal profession will seriously re-evaluate the exam and find more effective ways to ensure that lawyers are capable of doing their jobs.”
But did in-person or remote examinees do better? According to information from the American Bar Association Journal in February, most jurisdictions saw an increase of pass rates in 2020 regardless of in-person or remote administration of exams. But, in three states offering both kinds of exams, “online test-takers didn’t do as well.” In Texas, the in-person exam with 1,037 candidates had a pass rate of roughly 76%, while remote Texas examinees had a pass rate of only 60%. In Idaho, where only 28 people took a remote exam, the pass rate was only 31% for remote examinees compared with a 76% pass rate of the 120 people taking it in-person.
But, the bar exam of the future is likely to change due to an announcement from the NCBE. Calling it the NextGen Bar Exam of the Future, the NCBE Board of Trustees approved a task force’s recommendations for future exams testing knowledge, skills and abilities required to competently enter the practice of law. Over the next five years, these recommendations will be implemented.
Those recommendations include testing fewer subjects and testing “less broadly and deeply within the subjects covered;” greater emphasis on “lawyering skills” reflecting real-world practice; remaining affordable in price; fairness and accessibility being ensured and that the feature score portability of the UBE be maintained.
Other states are showing some promising approaches as well, according to Cornett. She pointed to the Oregon Supreme Court’s consideration of creating two additional paths to licensure aside from the bar. The first, a supervised practice pathway, the second an experimental learning pathway, and for Cornett, she hopes these “are the kinds of things I hope to see happen across the country.”