By Anais Martinez Aquino
As COVID-19 has affected nearly every segment of daily life, some major life milestones, such as celebrations, weddings, graduations, and the California Bar Exam, have also been impacted. Generally, the California Bar exam is administered in February and July, in-person, every year. The twice-yearly ritual generally involves thousands of potential lawyers, the test-takers, crammed into several convention center sites throughout the state (or some other very large indoor space), with the test proctored by hundreds of volunteers and State Bar employees. For two full days (three days until July 2017), students hover in close contact on shared foldable tables, among a web of extension cords and surge protectors fueling their laptops, while under the stress of the pending exam. Now, with large gatherings cancelled throughout all of California in light of the threat posed by COVID-19, the traditional bar exam format needed to be rethought.
The reasons for a swift resolution to the bar exam question were plenty. Many law students have jobs lined up pending results of the bar exam. The current economic crisis brought about by the pandemic has made these pending job offers even more valuable. With gainful employment comes the ability to begin paying back student loans, an opportunity to obtain employer-paid health insurance, and the ability to finally work in your chosen field after years of study. The stress and the uncertainty of the exam were amplified in an environment where it was impossible to guess what the State Bar and the California Supreme Court would determine to be the path forward.
On April 27, among uncertainties with COVID-19, the bar exam was pushed back to September 9-10, 2020 with instructions for the State Bar to examine a remote format. Then, after months of speculation regarding the September 2020 bar exam amid increasing rates of infection, the California Supreme Court (the rule-making authority for the State Bar) announced on July 16, 2020 plans to administer a two-day remote online test on October 5-6, 2020.
Although the solution has been characterized as “imperfect,” the delay and online administration of the exam perhaps avoids a more disruptive result akin to what occurred in Florida. After waiting until July 1, 2020 to announce the decision to switch the Florida Bar Exam from in-person to online, on August 17, only two days before the rescheduled online administration of the exam was to begin, the exam was abruptly cancelled. The Florida Board of Bar Examiners explained the late cancellation: they became aware that it was impossible to administer a secure and reliable remote bar exam only two days prior to the rescheduled test.
The California Supreme Court also directed the State Bar to create a provisional licensure for 2020 law school graduates who may practice law under the supervision of a licensed California attorney. Notably, the Supreme Court also lowered the passing score from 1440 to 1390, however this change is intended to be permanent and not limited or linked to the duration of the COVID-19 emergency. However, as with many things during COVID-19, conditions and regulations are evolving each day. As recently as August 10, 2020, the Supreme Court announced that the revised lower bar passing score would not apply retroactively.
Additionally, while the Supreme Court committed to creating a “frequently asked questions” guide for all the new changes, they also opined that law schools should step in to help bridge the connectivity gap faced by their students. The letter suggests that much like how the law schools facilitated online learning for the Spring 2020 school year when shelter at home orders went into effect, law schools can similarly assist student access to resources like laptops, facilities, and internet connectivity in order to effectuate a smooth remote testing experience.
Despite these concessions, the Supreme Court’s proposal falls short of an automatic licensure for 2020 graduates that many groups advocated for, or a “diploma privilege.” Critics of the State Bar’s compromise also believe that a virtual testing environment falls short of adequately addressing the real-life challenges of working from home for many students, such as shared living spaces or a lack of consistently high-speed internet.
What is Diploma Privilege?
Many current law students, law schools, and those wishing to take the California Bar Exam in 2020 advocated for diploma privilege as an alternative to a modified bar exam. Although the proposals differed in scope and duration, generally all diploma privilege proposals focused on the key provision that it would entitle any 2020 graduate to practice law without having to take and pass the California Bar Exam. However, proposals for diploma privilege varied from a temporary privilege to practice to a complete elimination of the bar passage requirement. However, several key questions remain unanswered from the various proposals, such as whether or not law students from out of state schools would be entitled to the privilege in California, or whether the privilege would extend to graduates from non-ABA accredited schools. Additionally, it remains unclear if and when a traditional in-person test administration with thousands of students could take place safely for future administrations of the California Bar Exam, thus calling into question the temporary nature of the proposed diploma privilege.
However, in declining to extend a full, permanent diploma privilege, the California Supreme Court noted that there were several states in similar situations that opted for diploma privilege rather than postponement of the exam. There are only a handful of jurisdictions providing for a diploma privilege, with varying requirements for eligibility, including Louisiana, Utah, Oregon, and Washington. Per the Wisconsin State Bar, the diploma privilege was already in place prior to the pandemic. In its July 16th letter, the California Supreme Court’s compromise acknowledges the challenge of a California diploma privilege based on the size of the state, the number of potential test takers, and the number of non-ABA accredited law schools. Using the diploma privilege criteria relied on by other states would exclude from the program graduates of nearly four dozen law schools in California and possibly lawyers licensed in other states who wished to sit for the California exam. In this sense, says the California Supreme Court, declining to create a diploma privilege would not disparately impact a law student based on the accreditation status of their law school or the state in which their school is located. For many, this is seen as a factor largely out of the student’s control.
Criticisms of the Proposed 2020 Bar Exam
The 2020 fall exam has been criticized as unpractical, unfair, and not humane. According to Loyola Law School Clinical Professor of Law and Director of Bar Programs Susan Smith Bakhshian, not all graduates have the wealth or family support to devote two uninterrupted days to the bar exam. Many of California’s law students, in light of the high cost of housing, live in shared spaces with other family members or roommates attending school or working remotely in the same space. Professor Bakhshian believes two uninterrupted days to take an online-administered exam is unrealistic in many living situations.
The solution from the California Supreme Court also fails to take into account that reliable, high-speed internet is not universal. The pandemic has pushed California’s residents to shelter at home. Thus, for many of us, work, school, and even entertainment is all constrained by our limited internet bandwidth. In light of the shared living spaces that most students and graduates find themselves in, that bandwidth is often even more taxed at home. Access to high-speed internet continues to be an equity concern across California’s urban and rural areas, heightened by the demand that COVID-19 has placed on connectivity from home.
The Supreme Court further suggests that law schools should provide facilities and equipment, much as they did to finish off the semester distance learning, however as Professor Bakhshian explains, by comparing attendance in law school to taking a high-stakes licensing exam, the analogy fails as the two things have little in common. . Making available a “loaner laptop” or missing a few minutes of instruction would not result in permanent harm to a law student’s legal education as would the effect of a few minutes of lost connectivity during a timed exam. However, considering all of these challenges, Professor Bakhshian believes the revised bar exam passing score is a step in the right direction.
Revised Bar Exam Passing Score
At 1440, California had the highest passing score of any other U.S. state besides Delaware. The Supreme Court in its July 16th letter adopted one permanent change to the upcoming October administration of the bar exam, lowering the passing score from 1440 to 1390. Most recently, on August 10, the Court clarified that the lowered passing score would not be applied retroactively. That is, individuals who previously sat for an earlier of the administration of the California exam who would have passed under the new, lower passing score would not now be admitted to the California Bar.
The revised bar exam passing score reflects four recent studies over several years regarding bar passage rates in California, which remain amongst the lowest in the U.S. Although the results of the study are relatively new, it is unclear why the Supreme Court took action to lower the passing score while simultaneously addressing the physical test location limitations presented by COVID-19.
Provisional Licensure Allowed
The July 16th letter provided that the State Bar was instructed to create a provisional licensure for 2020 law school graduates. The provisional licensure would allow 2020 law school graduates to practice law in California in a limited, supervised capacity until the graduate can take and pass the California Bar Exam. The provisional licensure would expire no sooner than June 1, 2022. This is similar to an existing program in California for Certified Law Students to conduct some limited proceedings under the direction of a licensed attorney such as negotiations, depositions, and hearings with approval of the court. The details of the provisional licensure for 2020 law school graduates, and its limitations, are still forthcoming.
Delayed Exam in Other States
California is amongst 26 other states that have opted for a delayed, rather than completely cancelled, bar exam. States with a delayed exam include Alaska, Arizona, Connecticut, Florida, Georgia, Hawaii, Illinois, Indiana, Kentucky, Maine, Maryland, Massachusetts, Nevada, New Hampshire, New Jersey, New Mexico, New York, Ohio, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Utah, Vermont, and the District of Columbia. The bar exam was cancelled completely—and has yet to be rescheduled—in Delaware.