Bar Exam

California law deans ask for open-book bar exam, citing fires, racism and tech issues

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A group of deans from ABA-accredited law schools in California have asked the California Supreme Court to change its online October bar exam to an open-book format with no remote proctoring.

The Sept. 14 letter was signed by 15 deans, including Paul Caron, the dean of the Pepperdine University Caruso School of Law, who posted the communication on TaxProfBlog, and Erwin Chemerinsky, the dean of the University of California at Berkeley School of Law and a frequent ABA Journal contributor.

Reasons given for the requested change include proctoring rules creating a hardship for test-takers living in small spaces, racism, the COVID-19 pandemic and California fires, which have dislocated many test-takers, according to the letter.

“Administering the exam without remote proctoring and in an open-book manner would decrease the stress for many taking the bar. In addition, there is a nontrivial risk of significant technical issues or snafus in the planned administration that would be substantially alleviated by this alternative approach,” the deans wrote.

The October exam includes 100 multistate bar examination questions provided by the National Conference of Bar Examiners, as well as essay questions and a performance test written by California bar examiners, according to Mike Sims, the president of BarBri, a bar exam prep course company.

“The only issue I would see with the open-book request is whether the NCBE would object,” Sims told the Journal in an email.

The deans’ letter notes that Indiana and Nevada already administered open-book bar exams, but those tests did not use NCBE content, according to Sims.

In August, the NCBE told the Journal that it has a remote proctoring requirement for states using its testing materials in October online bar exams.

The “NBCE supports the California Supreme Court and its decisions regarding administration of the October exam. This is consistent with NCBE’s interest in jurisdictions administering a secure exam,” the organization wrote in a Sept. 14 email to the Journal.

Three companies provide bar exam software, and one of them, Extegrity, pulled out of the online tests this summer, partially due to concerns about remote proctoring. Reliable internet connections are needed for live remote proctored exams, and there hadn’t been sufficient development time or product testing for the technology, Greg Sarab, the founder and CEO of Extegrity, told the Journal in August.

If the California Supreme Court adopts the deans’ suggestion, Extegrity would be happy to help organize a full-scale stress test to validate the system, Sarab told the Journal in an email.

“Extegrity is relieved to see the deans reach the same conclusion we did back in July,” he wrote. “While it is too late to spare applicants the dramatic uncertainty of the past six weeks, it is not too late to remove the undue risk of remote proctored exams.”

United for Diploma Privilege, a coalition founded by recent law school graduates, filed a petition for emergency order last week, asking the California Supreme Court to consider alternatives to a remotely proctored exam. Arguments include an assertion that the October online exam relies on untested technology, intrudes on test-takers’ privacy, and will disproportionately impact test-takers from marginalized communities.

“We thank the California ABA law deans for echoing our call to action and hope the California Supreme Court takes seriously the countless reports of privacy breaches and documented failures in delivering an online exam,” wrote Pilar Margarita Hernández Escontrías, one of the coalition’s founders and a recent graduate of the University of California at Irvine School of Law, to the Journal in an email. “Although an open-book exam would relieve technical concerns, it still does not address all equity issues we have been highlighting as a coalition for the past six months.”

Updated Sept. 14 at 5:08 p.m. to clarify a quote from Greg Sarab. Updated Sept. 15 at 8 a.m. to add the comment from the NCBE.

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