Legal Law

It’s Lastly Right here: The California Bar Examination

Next week.

Monday and Tuesday.

October 5 and 6 will be the delayed California Bar Exam.

There will be online bar exams in other states, too, but I’ll talk about my state, currently burning to a crisp in various locations. Approximately 9,600 will take the test remotely, including 462 remote test takers who were granted accommodations related to their disabilities. Four hundred forty-three test takers, including 195 test takers who were granted accommodations due to their disabilities, will take the test in person.

Does anyone think that this two-day exam, online for most test takers, will go off without a single snafu? I don’t. Based upon what I’ve read to date, I just don’t think it’ll be a smooth ride. As one example, the bar has hired a crisis management team to answer inquiries from bar takers. I don’t think that bodes well.

Sympathies to the 2020 law school graduates who have suffered over these past seven months: no graduation festivities, exam grading issues, looming student debt (payments of which are to start shortly), worry about the virus, worry about job opportunities, and then considerable and continued confusion about “whither the bar exam?” Is it on or is it off? If on, then when? In person or online? How will it be administered? What about those who need accommodations? Must they then take it in person and risk exposure to the virus?

These are all real life-and-death questions for a cohort that only wants to pass the bar and pick up the pieces of their virus-influenced lives. The FAQs for in-person testing have one ridiculous provision, which is that the test taker can only bring one mask into the secured testing area per session. What’s wrong with having an extra? What if that mask flunks inspection for whatever reason? Then what? If the one mask is subject to inspection, then how difficult would it be to inspect more than one? I can envision a scenario where a test-taker sneezes into the mask during the session that freaks out those socially distanced around him. Must that test taker wear that germy mask for the balance of the session? According to the State Bar, the answer is yes. Not a comforting thought.

Only the CBX examiners could come up with a 21-page October exam FAQ. If there’s a problem with connectivity, the examinee is to call ExamSoft tech support forthwith. See answer to FAQ 12. How many times have you called tech support and been helped right away? I’m just asking …

There is a whole section of FAQs about the integrity of the bar exam, but those questions go to the integrity of the examinee and not to the exam itself. So there are questions about what happens if there’s a power failure (and given the persistent wildfires here in California, power outages are always a possibility), whether an examinee can take medicine into the examination room and water to wash it down (no), whether one can take a cushion or pillow into the exam room (yes, without a cover), concern about ExamSoft access to examinees’ biometric data.

I didn’t see any FAQs about exam integrity and the possibility of cheating by hacking. With testing across the country next week, is there any concern about that?

According to Joe Patrice’s post, there is a real possibility of cheating by hacking, especially given how the exams are going to be distributed. Several enterprising hackers are already offering their wares that would allow examinees to cheat.

How could this happen? ExamSoft sends the exams in advance to the examinee’s computer and only decrypts it at the time of the exam. So, those exam questions are already lurking somewhere on the laptop only awaiting the metaphorical starter flag. Is the code of conduct strong enough to preclude hacking? If so, as Joe points out, then what are the reasons for no medicine and no water (among the prohibitions) in the exam room? Is there any pill large enough to write on?

Can the validity and integrity of the bar exam be trusted if examinees can’t be trusted with medication in the exam room? And let’s not even discuss that some examinees who need reasonable accommodations can’t get them in an online environment and so will be forced to take the exam in person. The purpose of the online exam was to minimize the risk of the spread of the virus; now those who may be most at risk because they are immuno-compromised must put themselves most at risk.

A  magistrate judge for the U.S. District Court in San Francisco has just denied the motion of several disabled bar examinees, already granted reasonable in-person accommodations under the ADA, for a preliminary injunction, arguing that the ADA requires that these plaintiffs be allowed to take the exam remotely. The court disagreed, finding that for the October 2020 bar, “the proposed accommodations would fundamentally change, disrupt, and burden the State Bar’s administration of the exam.”

And now for my familiar admonition: Do NOT discuss your answers with anyone. And especially steer clear of anyone who brims with overconfidence. You have no idea whether someone else is right or you are, and the last thing you need right now is to perseverate. Kick back in your quarantine environment, stop wondering about diploma privilege, and think about the future. With any luck, it should be right around the corner.

Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at [email protected].

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