Legal Education

Cash-strapped California bar weighs cutting ties with NCBE, teaming with Kaplan on test-writing

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State bar of california seal on a concrete wall

Driven by money problems, the State Bar of California will decide this week if it will shift test-writing duties from the National Conference of Bar Examiners to Kaplan Test Prep for a Multistate Bar Exam replacement starting in February 2025. (Image from Shutterstock)

Updated: Driven by money problems, the State Bar of California had planned to decide this week if it would shift test-writing duties from the National Conference of Bar Examiners to Kaplan Test Prep for a Multistate Bar Exam replacement starting in February 2025.

However, on the morning of May 16, the State Bar of California board of trustees pulled the proposal from that day’s agenda. No further details on when the discussion would be picked up are yet available.

“Our surveys of exam takers indicate a preference for remote and small test center administration, and we hope to move forward in the future with a test that allows us to offer the exam in those modalities,” said Leah Wilson, executive director of the State Bar of California.

The proposal, which had been posted on the state board’s website as part of the agenda for its May 16 and 17 board of trustees meeting, would seek to rein in the costs of in-person, site-specific bar administration by allowing for “a fully remote online exam, utilizing small vendor-owned test centers or a combination of the two.”

The MBE is provided by the NCBE. Although remote testing was briefly available during the early part of the COVID-19 pandemic, the paper-and-pencil test is now administered in person.

Administering the new exam that the state bar says would closely mimic the MBE as fully remote would save an estimated $4.2 million annually, while holding it at vendor-owned test centers would save an estimated $2.8 million and $4 million if conducted hybridly, the memo states.

However, exam development costs would increase. The NCBE is paid about $1 million for the multiple-choice questions and exam development each year, but Kaplan would receive up to $1.475 million annually for five years, the memo says.

The state’s admissions fund faces insolvency in 2026, with its 2024 budget forecasting a $3.8 million deficit and ending this year with $3.3 million in reserves, according to the memo.

“It almost looks like a desperate move,” says Sean Silverman, owner of Silverman Bar Exam and LSAT Tutoring. “There’s a lot of talk about protecting the public and the validity of the test and how important it is. But the incentive here has nothing to do with that. The incentive has to do with saving money.”

Since the MBE will be sunsetting in 2028, state bars must replace it. Many jurisdictions will use the NextGen bar exam, created by the NCBE and administered in person beginning in 2026.

Additionally, if California’s plan is adopted, Kaplan would stop providing bar exam prep courses in California, according to the memo.

‘Underlying question’

In early April, the state bar met with deans and faculty members from California law schools to receive feedback about the new test, the memo states. The deans of the state’s accredited law schools expressed their reservations in an April 12 letter to the state bar, stating, “This proposal does not appear to be practical or realistic.”

“Whether the state bar can make the changes on such a quick timeline, of course, raises questions,” Austen L. Parrish, dean of University of California, Irvine School of Law, said in an email to the ABA Journal about the state moving to a Kaplan-created test. “We have limited information and will not be able to assess until we see what is prepared (e.g., the content map, study guide, faculty guide etc.).”

In contrast, the NCBE’s MBE question-development process takes approximately three years and includes multiple rounds of drafting, review and editing, and pre-testing occurs before use on an exam, Sophie Martin, NCBE director of communications, wrote to the ABA Journal.

Along with field testing multiple-choice questions with 3Ls and 4Ls in October, psychometricians contracted by the state bar will meet with subject matter experts, recently barred attorneys and their supervisors to ensure questions are “equal to and up to par with the current NCBE questions,” wrote Bridget Gramme, special counsel to the California bar.

Parrish, who did not attend the April meeting, added there are other concerns, such as whether the test will be sufficiently reliable or negatively impact pass rates.

And according to Silverman, “[Kaplan] is not in the business of making tests. They’re in the business of helping people to take them. So this is new for them as well,” he says. “The underlying question is whether actually they’re going to be able to create the questions in a way that is identical [to the MBE].”

But Greg Sarab, CEO of Extegrity, an exam software company, believes the timeline is “definitely doable. Kaplan will clearly have amassed a huge repository of questions used over many years, and many millions of clicks from applicants taking practice exams.”

Russell Schaffer, communications director of Kaplan, said the test prep company “has nothing to share at this time.”

Nevada partnership

The Nevada Board of Examiners has “indicated a desire” to use California’s proposed Kaplan-developed test, according to the memo, and an agreement has been reached that Nevada will work with the California Bar to analyze the feasibility of using newly developed questions. If the Nevada Supreme Court approves the plan, the neighboring states would administer their multiple-choice exams concurrently to keep exam materials secure, the memo states, and Nevada would compensate California for the costs of its examinees, offsetting administration costs.

“The State Bar of Nevada is not facing the same sort of financial strains that California is facing,” Kimberly Farmer, executive director of the Nevada State Bar, wrote in an email.

If the test becomes fully remote, it would be financially advantageous for bar candidates. “As sort of a side benefit, there are cost savings for the students,” Silverman says. “They’re not going to have to travel to test centers, which can be expensive. They’re not going to have to get hotels.”

However, administering remote exams creates challenges for exam security and uniformity, NCBE’s Martin wrote, and can create fairness issues when candidates don’t have access to the necessary technology or a quiet testing place.

“A hallmark of assessment by exam integrity is validity,” Greg Bordelon, a professor at Suffolk University and former executive director of the Louisiana Committee on Bar Admissions, wrote in an email to the ABA Journal. If security levels of student laptops can’t be assured, using dedicated laptops might be required, he added.

Twelve jurisdictions currently accept transferred MBE scores from California candidates, NCBE’s Martin wrote. “This score portability would be lost if California stopped offering the MBE.”

The venerated-yet-dreaded bar exam is being reconsidered in several ways. The California proposal comes as the council of the ABA section of Legal Education and Admissions to the Bar will consider alternate pathways to licensure on Friday; in addition, several jurisdictions have dropped cut scores in the past year; and the new NextGen exam is set to debut in July 2026.

While the ABA controls accreditation of law schools, lawyer licensing is handled by individual jurisdictions via state courts or other entities.

Updated on May 16 to say that the State Bar of California’s board of trustees had withdrawn the proposal from their agenda. Updated on May 17 to add comment from Leah Wilson.

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