Amid a raging COVID-19 pandemic, too many law school graduates across the country have found themselves in limbo this year, delayed from getting their licenses and facing medical and financial trials along the way.
The bar exam, which is administered state-by-state, is a law graduate’s next step to becoming a practicing lawyer. Those who pass are eligible to be admitted to a jurisdiction’s bar association, pending further clearance.
Six law graduates in different parts of the country spoke to ABC News about what they faced to take the exam under these unprecedented circumstances.
Caitlyn Tallarico, a graduate from Widener University Commonwealth Law School in Harrisburg, Pennsylvania, has type 1 diabetes. For her to take an exam that stretches three full days, she has to wear an insulin pump and a continuous glucose monitor — plus a manual blood sugar monitor, in case the others fail. At all times, to manage her blood sugar and prevent potentially deadly complications, she must also keep on hand and be able to eat easily-digestible sugary foods, like candy or a juice box.
The Pennsylvania Board of Law Examiners (PaBLE) approved these items for her when the exam was still being held in-person and over the course of two days. Because of COVID-19, the exam moved online and she learned the exam software might flag her for cheating if she moved to eat or if her monitors beeped.
“I can’t refrain from using these items,” she told ABC News. “These items keep me alive… The medications I take and the supplies I need with me are life-sustaining.”
When she asked the PaBLE about her accommodations, they wrote in part, “You may keep your approved diabetic supplies with you… [but] be aware that if you use any of your diabetic supplies while testing, your session will be flagged for review… We would ask that you refrain from using any of these items, if possible, unless it is medically necessary to do so.”
Tallarico said it would be “impossible” not to use these medical supplies and “ignorant” of the board to believe she could.
“I’ve dealt with a lot of stress because of my diabetes,” she said. “But I never thought so much of that stress would be from being asked by a board of attorneys familiar with ADA implications to take a few days off from my illness for its convenience.”
The PaBLE sent a message later to “apologize that the message caused concern,” they said. “We did not intend to suggest you should not use or have accessible for use any medical supplies you may need during the exam.”
Tallarico, however, said she found the apology fell short because it seemed to deny they ever explicitly asked her to “refrain from using” her medical supplies.
In a statement to ABC News, a spokesperson for the PaBLE said the organization “apologized” and explained that its “intent was to advise applicants about the flagging of sessions for review, which would have no consequence in cases of approved medication such as a diabetic’s use of insulin… The Board and its staff are and have been committed to ensuring that the exam is accessible to all applicants and that appropriate accommodations are provided.”
Many across the country faced various technological problems, and reported software bugs and other issues, including facial recognition technology that could not “identify” some faces with darker skin tones.
Areeb Been Khan, a New York bar applicant, told ABC News he tried to take two “mock exams” in September to test the software, made by the company ExamSoft, ahead of the exam in October. When the software first activated his computer’s camera and took a snapshot of his face, he “immediately received an error message stating, ‘Due to poor lighting, we were unable to identify you. Please ensure there is adequate lighting.’”
“I was confused, but I moved to sit more directly in front of a light source. I received the same message,” Khan said. “That evening, I emailed ExamSoft technical support to see if they had any recommendations. They responded… essentially telling me to shine a lamp directly at my face. Still, the program was unable to identify me.”
Eventually, Khan said he was able to contact technical support and they helped him get the program to work. When he took the exam in October, he did not have facial recognition issues.
“I ended up taking the exam in a conference room at my law school,” he said. “I even brought the lamp ExamSoft told me to shine directly in my face just in case there were any further lighting issues.”
ExamSoft told ABC News in a statement that its “exam identification solution does not disproportionately harm individuals of color” and that “all individual exam-takers set and approve the their own baseline image before taking a high-stakes exam.”
The software company also said that in cases where the system doesn’t match, it will “flag it for human review and comparison” and that the software has been successfully used by “hundreds of thousands of diverse exam takers” this year.
Ryan Smith, a graduate from Temple Law School in Philadelphia, is another bar applicant from Pennsylvania. As COVID-19 cases started rising across the country in March, Smith launched into action to advocate for himself and other law students in their final semester.
He realized the July exam they planned on taking would be delayed into the fall, if not longer, and would cause extreme disruption to the lives of his fellow bar applicants.
It became a full-time job for him. He began to contact students from every law school throughout the state, licensed attorneys, professors “just to get people to hear us,” he said.
“Some of the stories were just heartbreaking,” he said. “Hearing about people who experienced gaps in their health care coverage, people who had loved ones pass away, people who lost job offers. There were people who wrote to me individually, really just because they wanted someone to respond, just for someone to listen.”
Pennsylvania’s July bar exam was moved to September in April. Then, in July, it was postponed again until October.
The test moved online. On top of concerns about software and logistics, there were questions raised by applicants about whether a novel testing environment could produce the same results as the in-person testing that had been used decades — in terms of whether an online test would be equal in difficulty, reliability, and its effectiveness in measuring minimum competency.
“It’s an exam that had never been held before,” Smith said. “The only reason the exam is measured as the minimum level of competency is because they’re tested… The reliability of future exams depend on how people did on prior exams. This was unprecedented.”
In June, Smith started writing a petition seeking a form of diploma privilege, which would give graduates emergency law licensure, and asked the Pennsylvania’s Supreme Court to decide on additional requirements to protect the public interest, like supervised practice and continuing legal education. He said he worked on the petition for 10 hours a day for five weeks straight.
Ultimately, Smith and the other petitioners decided “we needed to file this so we could move on and study.”
Smith gained support from two professors at his law school, Louis M. Natali Jr. and Michael J. Engle, who helped him file the petition.
“Our challenge to the Pennsylvania Supreme Court was designed to shed light on what we perceived to be the inherent flaws in the on-line testing and was based in part on the fact that the test could not be properly scaled,” Engle told ABC News. “It also challenged a testing scenario that appeared to be both discriminatory and fraught with the potential for false allegations of cheating.”
Out of the hundreds of bar applicants Smith reached out to, only 14 others put their names on the petition.
Some bar applicants believe it is risky speak up about the difficulties they’ve been facing. Many of them have gone hundreds of thousands of dollars into debt to complete their law education, and worry that speaking out could endanger their admission to the bar, thereby wasting so much of their time, money and hard work.
In August, Judith Gundersen, the president and CEO of the National Conference of Bar Examiners (NCBE), said at a panel that “character and fitness issues are arising in the way examinees are communicating with Board Staff and Board volunteers.”
Many believed she implied that applicants who spoke out would have that recorded on their character and fitness reports, which are crucial to have in good standing for an applicant to be admitted into the bar.
“There was no threat,” the NCBE said in a statement to ABC News. “NCBE provides investigation services for some jurisdictions, but it does not make any decisions about the character and fitness of applicants. Those decisions are all made by courts, by boards of bar admission, or by character and fitness boards in some states.”
The NCBE added that there was “extensive acrimony” about the decision in some jurisdictions to hold in person exams, and that “some of the remarks by applicants, made primarily on social media, were considered unprofessional and caught the attention of bar administrators in several jurisdictions.”
In Pennsylvania, Smith’s tireless efforts reached Karli Study, a recent grad from Widener Law School. She said she understood other applicants’ reluctance to speak out and that she felt a responsibility to speak out in their stead by joining Smith’s petition.
“You’re going to have people who are afraid, so they’re going to roll with the punches,” she said. “I saw many [of] my classmates say ‘What are we going to do? We really don’t have a voice.’ For some of us, we felt that that is not the case… We might have a good chance. Well, let’s do something about it.”
Smith’s group of 15 called themselves the Law Students for Equitable Responses to COVID-19 (LSERC). Ultimately the petition was more than 70 pages long, plus 217 pages of exhibits.
Less than a month after filing their petition against the Pennsylvania Board of Law Examiners, the Pennsylvania Supreme Court came back with a single-page decision.
“We were denied. I don’t know why,” Smith said. “I don’t know if they denied the petition because they denied the legal theory, or the legal argument. I don’t know if they disagreed with our request for diploma privilege.”
“Sadly, our Supreme Court refused to review the merits of the matter and took the position that many other appellate courts in other jurisdictions took in the months and weeks leading up to the Bar Exam,” Engle said. “While a disappointing and frustrating result in the end, it was nevertheless a fight worth fighting.”
“It was heartbreaking, honestly,” Study said. “We put in all our efforts, took time out of studying.”
Following an ABC News request for comment, both the Pennsylvania State Supreme Court and the Pennsylvania Board of Law Examiners sent one statement from the same spokesperson.
The spokesperson said that the PaBLE “is a board of the Supreme Court of Pennsylvania,” and that petitions like Smith’s are resolved by either “granting or denying a request.” The decision does not need to “specify the basis for the Court’s discretionary determination.”
The statement did not address how the petition against the PaBLE could be given a fair examination by the Supreme Court, when the court and the PaBLE are inextricably tied together.
Study said she’s worried about whether she’ll pass the bar exam.
“I’ve got about $300 in my account. I’m $200K in debt,” she said. “If I don’t pass this year, I will pass in another year, I assure you. We are the future of the legal profession. Just because we might not have made change now, we set the wave for it. The class of 2020 understands the difference between … gatekeeping versus what the best thing is for the legal profession and the future.”
A thousand miles south, Sarah Barber had her own exam troubles this year. She’s a graduate of the Mississippi College School of Law in Jackson and the mom of two kids, Jason and Natalie.
When COVID-19 hit, she found herself stuck at home in her final year of law school, caring for her 4-year-old son, who has special needs, and 2-year-old daughter. She also began studying for the bar in Tennessee.
Many applicants like Barber go to Tennessee for the bar exam because the state conducts what’s called a uniform bar exam (UBE), which allows those who pass to apply for a license in 38 jurisdictions.
Three weeks before the bar was scheduled to start, Hurricane Laura swept through her city, and she lost a week of studying due to power outages, which caused her to have no internet.
In mid-September, she had been dealing with other roadblocks to licensure as well. The other part of her bar application, the essential character and fitness interview, still hadn’t been scheduled. When she reached out to the Tennessee Board of Law Examiners, the board responded, “Please be patient with the attorneys as they are responsible for completing the interviews outside of their regular work day.”
“They told me to have compassion even though they had no compassion for us,” she said. “I had been polite, respectful, nice and compassionate. I was just scared about something that affects my life and livelihood.”
The Tennessee BLE declined to comment to ABC News, saying it does “not provide specific information about individual applicants.”
Speaking out, she says, is “still a major danger to me,” and all other applicants who haven’t yet been admitted to the bar.
“We’re very much rocking the boat, but maybe it’s time that feathers get ruffled,” she said. “My story is far from the worst… This was not right for us and not right for future generations.”
Chelsea, who asked to be called by her first name only, was another out-of-state bar applicant from Mississippi.
As the July bar was pushed later and later, ultimately to October, she lived entirely on a student loan that was only supposed to get her through August.
“That was rent and groceries,” she said, adding that her family helped her significantly with food.
“Both of my parents are extremely generous but they don’t have the funds to be generous,” she said. “I graduated undergrad in three years and then I went straight to law school. It’s because I wanted a better life for my family.”
Chelsea said it feels like so many in charge of law licensure were never in her shoes and never “had to live off of what they could, contemplate moving back home, and starting over and not being able to find a job,” she said. “They make these arbitrary rules that have a real-time, real-life effect for myself and my family.”
Chelsea is a survivor of sexual assault and hopes to help others who’ve had the same experience.
“You really cannot understand until you’ve been there,” she said. “People who’ve been there will fight the hardest because they know what it’s like to be at that lowest point. Truly, the experience of not being heard, not being seen, [being] told by people who you relied on that you don’t matter and they don’t believe you, [it] puts fire into you.”
Graduates’ struggles with the 2020 exam brings spotlight back on decades of complaints about the process of licensure
The bar exam is designed to measure minimal competency and protect the public from incompetent attorneys. But the “competency” has not been clearly defined, according to Kyle McEntee, executive director of the nonprofit Law School Transparency. McEntee was involved in a study from the Institute for the Advancement of the American Legal System (IAALS) that he believes comes closest to defining the term.
In the study, they found that closed-book exams offer a “poor measure of minimum competence to practice law,” that “time constraints on exams similarly distort assessment” of competency and that “multiple choice questions bear little resemblance to the cognitive skills lawyers use.”
The bar exam has all three features.
Instead, the IAALS found practice-based assessments, such as being allowed to interact with clients and negotiate and being given written performance tests that might involve interpreting legal materials and conducting research, were good indicators of what makes a competent lawyer.
The NCBE argues that the bar’s “ability to measure minimum competence has been confirmed numerous times,” including in a three-year study of empirically based practice analysis done by the NCBE’s Testing Task Force, which it says complements the findings from the IAALS focus groups.
“Their recommendations (insights) for assessment do not appear to be based on data or any research set out in the assessment literature, but rather appear to be based on opinions of the researchers that probably existed before the study was conducted,” the NCBE said of the IAALS study.
Students in 35 states have advocated for emergency diploma privilege, which would allow admission to the bar upon graduation from law school without taking the exam. Wisconsin has had diploma privilege in place for years, but this year, four states – Washington, Oregon, Utah and Louisiana — were also successful in implementing it. 31 states are still in the process of considering diploma privilege.
Gundersen, the head of the National Conference of Bar Examiners, is a law graduate from Wisconsin who has never taken the bar because she was granted diploma privilege.
“Ms. Gundersen is a proud graduate of the University of Wisconsin Law School who chose UW Law for its affordability and for the quality legal education it offered,” the NCBE said in a statement. “Whether the jurisdictions want to pursue diploma privilege will be up to the high court in each jurisdiction, not NCBE.”
This year’s push for diploma privilege has highlighted decades-old questions about its reliability and validity going forward.
Michael Hunter Schwartz, dean of the McGeorge School of Law at the University of the Pacific, says moving away from tests like the bar is “part of a larger conversation in higher education.”
He says many undergraduate universities have started to move away from using the SAT and ACT for admissions because the tests “have a tendency to measure family wealth and parental education as much as they measure anything else.”
“The same kinds of concerns apply to the bar exam,” he said. “If you come from wealth, you can actually not work while you’re studying for the bar exam. You can make that a full-time job. In contrast, if you need to work to live, you are working full time and studying for the bar exam. That’s a huge disadvantage.”
He named the Daniel Webster Scholar Honors Program in New Hampshire as a possible alternative to taking the bar. Students in the program have a combination of training and assessment over two years and are assigned bar examiners. Successful students are admitted to the state bar as they graduate, without having to take the traditional two-day bar exam.
NCBE said that “diploma privilege in effect removes the public protection function vested in the courts and places it with the law schools, but with no independent, vetted, objective or consistent final check on whether graduates are in fact competent to provide legal services to the public. The public and legal employers rely on passage of the bar examination as a reliable indicator of whether graduates are ready to begin practice.”
McEntee says it’s a good thing, in the long term, that people are advocating for diploma privilege. If they fall short, he hopes legal education will at least be better.
“That’s a great thing if we can improve legal education in that way,” McEntee said. “Legal educators … let tradition stand in the way of reform and people need to let go of their preconceptions about what is good and what is bad in terms of legal pedagogy. It needs to be empirically supported.”