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State Bar Offices Need Critical Resources to Plan February Exam

Dec. 8, 2021, 9:00 AM

With Covid-19 numbers on the rise again and the omicron variant now in the U.S., the question surrounding the February 2022 bar exam is how do we return to “normally” administering this high-stakes licensing instrument?

The bar exam is the primary path to attorney licensure and must be administered securely and fairly to ensure it measures what it purports to—minimum competency to practice law. We learned from the last three administration cycles that doing so in a remotely proctored environment cannot grant those assurances.

In June, the National Conference of Bar Examiners (NCBE) indicated that it would make materials available for the February 2022 bar exam only for an in-person administration of the bar exam.

This statement came before the July 2021 bar exam was administered remotely in 29 jurisdictions, 21 of those administering a fully portable Uniform Bar Exam. Test takers across the country experienced a host of technical problems; no doubt these problems reinforce the need to return to an in-person bar exam. States need to be making hiring, staffing, and general funding decisions now if they are committed to in-person exams, and state bar admissions staff must be given the resources needed to immediately get information to applicants.

Where Jurisdictions Stand

At this time, 50 jurisdictions (49 states and the District of Columbia) plan to administer a February exam; no state has yet to outright cancel. Delaware administers its bar exam only once a year, in July.

After researching the websites of all jurisdictions, below are interesting facts about where things stand for the upcoming exam:

  • In-Person Only. While every website indicated the exam will be in-person, there were 20 jurisdictions that expressly stated that the February bar exam will be in-person.
  • Multiple Testing Locations. At least 10 jurisdictions have indicated multiple testing locations. This dispersed site location policy is particularly novel for relatively larger examinee populations such as Maryland (usually one location, February will have two or three) and Texas (usually one location but will test in both Austin and Houston in February). Some smaller states like Vermont have also decided to disperse their testing locations across multiple sites.
  • Seat Limits. At least two jurisdictions—Maryland and D.C.—have imposed seat limits. Both the seat limiting capacity and the wait list are full for D.C., as of Nov. 5. Additionally, Vermont has a thorough policy reserving the right to implement a wait list if Covid-19 protocols warrant a seat limitation at their two testing locations.

Aside from Vermont’s policy, there doesn’t appear yet to be comprehensive public plans on how states will physically administer the upcoming exam. Perhaps those are coming, but anxious bar examinees who are completing cumbersome bar applications and beginning bar review courses, shouldn’t need to constantly check emails and websites for exam day Covid protocol updates.

The June NCBE statement indicated that states should hold an in-person exam “unless restrictions by a public health authority prohibit a jurisdiction from administering the February exam in person.” Individual bar admissions websites do not reference what “authority” that is or when a deadline would be set to determine whether the exam could be held in-person.

Plans Needed Now

Covid protocols that require masks, current vaccinations/negative test results, and distancing have been our best defense to at least tamping down the pandemic’s stranglehold. So, why aren’t the majority of states coming up with and publishing plans for the February bar exam aligned with these protocols now?

Spreading examinees out and verifying vaccination status takes space and time, resources that incur costs borne by bar admissions offices, and these offices don’t generally have a lot of latitude in their budgets. Renting additional venues for multiple exam locations costs more money than a single testing site, and hiring more proctors costs more money. And having extended check-in times to verify vaccination status requires arriving at the exam site earlier, longer waits, and the potential for a delay in start times.

Stakeholders acknowledge “in-person testing as the best mode of administration of the bar exam.” Shouldn’t state bar admissions offices be taking every means necessary to achieve this goal and communicating those means to applicants as soon as possible?

No one knows if Covid-19 cases will spike close to the exam, so states should take the benefit of smaller February exam populations to see if logistics like multiple, smaller testing sites and more test proctors should become the norm. Adapting changes in how to administer an exam in February will get us ready for when this pandemic possibly becomes just something we have to live with.

If examinee fairness and testing security are optimal and protected through in-person, given the very high stakes of the bar exam, shouldn’t bar admissions offices be looking at every logistic on how to administer the exam in person? If cost and resources are the problem, shouldn’t the state judiciaries under which these offices operate take every measure to ensure the integrity of the exam and how it’s administered?

If the July remote exam taught us anything, we bother with these things because they are what is required and responsible for a test as important as the bar exam. More resources should be put in place now to strive for some semblance of the exam’s cost-benefit relationship to entry into the legal profession.

This column does not necessarily reflect the opinion of The Bureau of National Affairs,Inc. or its owners.

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Greg Bordelon is an associate professor at the University of Maine School of Law. He teaches legal methods & reasoning and the legal environment of business.