Bar Exam

With criticisms of the NCBE, New York bar group suggests state create its own bar exam

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A task force of the New York State Bar Association has recommended that the jurisdiction adopt its own bar exam and stop using the uniform bar exam, which is developed by the National Conference of Bar Examiners.

The recommendations were approved by the bar association’s house of delegates June 12, according to a news release. The voluntary bar organization asked the New York State Court of Appeals, which governs attorney admissions, to appoint a working group to develop a bar exam.

Also, the June task force report recommended two alternative means to admissions: a pathway through study while in law school and supervised practice combined with law school achievements.

The report claims that the NCBE scoring process renders the bar exam “arbitrary and unfair” because it may result in licensure determinations “on grounds other than a determination of individual competency.”

According to an NCBE spokesperson, the organization stands by the efficiency of the uniform bar exam, and it continues in its mission to support all jurisdictions in “building a competent, ethical and diverse legal profession.” The organization is also committed to working with the New York State Court of Appeals and the state board of law examiners on issues related to the uniform bar exam, the spokesperson wrote in an email.

The New York State Bar Association task force was created in 2019 and released its first bar exam report in March 2020. It suggested performing an independent psychometric analysis of the uniform bar exam and adding a requirement that people seeking to practice law in New York take the multistate bar exam, the Multistate Performance Test and a “rigorous New York-based examination.”

Later that month, the task force issued a second report, centered on the COVID-19 pandemic, with the recommendation that the July 2020 bar be postponed to sometime around Labor Day and not use a remote bar exam. That didn’t work out because of the pandemic, and New York used the NCBE’s remote exam, first administered in October.

Unlike pre-pandemic bar exams, the NCBE did not scale the exam, and uniform bar exam scores were not portable. Some jurisdictions agreed to accept each other’s scores, and test-takers took exams in jurisdictions that they thought would have the best testing opportunities, even if they didn’t plan to practice there, according to the June task force report. It also claims that some jurisdictions would not let New York residents take their bar exams.

“These breakdowns make it clear that portability and reliance on the NCBE—the main reasons for adopting the UBE—are not guaranteed under the current bar exam format. New York, as a leading state which tests some 20% of all bar applicants, is particularly vulnerable,” according to the report.

Also, the task force criticized software issues with the October remote exam, including facial imaging technology that had problems recognizing test-takers of color and inaccurately flagged tests for potential cheating. Bar exam accommodation issues and strict bathroom break rules were also cited by the task force as problems with the remote bar exam.

Additionally, the report claims that the NCBE falsely said the task force did not understand advanced psychometric practices used in testing.

“As Shakespeare famously said: ‘the lady doth protest too much, methinks,’” according to the report.

The NCBE announced plans in January for a revised exam, which is expected to be implemented in four to five years. Changes could include replacing the Multistate Bar Examination, the Multistate Essay Examination and the Multistate Performance Test with an integrated test and replacing the paper exam with a computer-administered exam given at testing centers or jurisdiction-managed sites. Both options would have in-person proctoring, the NCBE said in January.

The New York bar association’s task force report found fault with the announced changes.

“Rather than leave New York in the lurch by not planning for the day, which is coming, when the NCBE abandons the UBE, we call upon the court of appeals to appoint a working group of law school faculty and practitioners, aided by a professional psychometrician, to work with [the board of law examiners] to develop the new test,” according to the report.

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