Jurisdictions hope safety plans curb COVID-19 fears for in-person bar exam
In addition to JD certificates and character and fitness responses, many February bar exam candidates preparing for the in-person test are also submitting proof of COVID-19 vaccines or a negative test—and in some cases both.
The National Conference of Bar Examiners in June 2021 announced the February bar would be in person, with no option for a remote exam, following various problems candidates reported with remote tests. In January 2022, the organization confirmed the decision and added that if jurisdictions had restrictions prohibiting large, in-person gatherings, the exam would be moved back to late March. ‣ “This really is a huge deja vu. It looks like July 2020 all over again, just a different day on the calendar,” says Marsha Griggs, a law professor and director of academic enrichment and bar passage at Washburn University School of Law.
Bar administrators can find ways to safely administer in-person exams, but it will take a great deal of space and human resources. Griggs also sees problems with the previous online bar exams.
“Even with the problems we had with an online exam, at some point it was reasonable for us to expect them to find a solution to the problems. I’m not seeing where there’s been any resolution,” Griggs says.
As of Jan. 24, all jurisdictions using NCBE testing materials are going forward with an in-person February exam, according to a spokesperson for the organization. The NCBE does not keep track of jurisdictions’ COVID-19 safety plans, which often depend on state and municipal laws.
Bradley Skolnik, who chairs the Council of Bar Admission Administrators.
“I think bar administrators are working very hard to ensure the testing environment is as safe as possible,” says Bradley Skolnik, who chairs the Council of Bar Admission Administrators, and serves as executive director of the Indiana Supreme Court’s Office of Admissions and Continuing Education.
In his jurisdiction, bar candidates are not required to be vaccinated, or have proof of a negative COVID-19 test. Skolnik adds that Indiana passed legislation prohibiting the state or a local unit from issuing or requiring a COVID-19 “immunization passport.”
“I do not know whether that would apply to a bar examination; however, because we are not requiring proof of vaccination, it is not an issue,” Skolnik told the ABA Journal.
“Based on the fact many of these applicants have recently completed law school, it’s likely they attended colleges and universities that did require vaccination. I assume the overwhelming majority of applicants will be vaccinated,” he adds. The state is expecting approximately 200 test-takers. Each will be seated by themselves at a six-foot table and required to wear a disposable mask.
For other jurisdictions, accepting negative COVID-19 tests as an alternative to a vaccine could be a good solution, says Jeffrey Jackson, a constitutional law professor at Washburn University.
“Not just from a standpoint of avoiding messy litigation, but it also gives you the right level of protection in a manner that doesn’t infringe on anybody’s rights,” he adds, mentioning religious objections and Americans with Disabilities Act accommodations. Jackson has not heard of any case law on professional licensing exams and vaccine requirements for test-takers.
“The basic reasoning is we haven’t seen this situation come up before. The last big vaccination case was in 1905,” says Jackson, referring to Jacobson v. Massachusetts, the U.S. Supreme Court opinion that found a state could have a mandatory vaccine law to prevent smallpox and protect public health.
That is also the plan for New York, but unvaccinated test-takers must sit for the bar in Albany or Buffalo, according to the New York State Board of Law Examiners’ website. In New York City, where the bar will also be administered, an executive order restricts unvaccinated individuals from entering general population test sites, and there’s a similar prohibition for the Westchester testing site.
Massachusetts requires all test-takers to be vaccinated. The exam will be administered in Boston and Springfield at Western New England University. The city of Boston has indoor vaccines mandates in place, and WNE has a similar requirement, according to Marilyn Wellington, executive director at the state board of bar examiners.
Bar exam administrators say there are few reported cases of people contracting COVID-19 during the exam, but they admit there’s a small pool, as many jurisdictions have been using remote testing during the pandemic.
Colorado, which had an in-person bar exam in July 2020, followed by remote exams in February and July 2021, did have one 2020 applicant report testing positive for COVID-19; she received the test result after finishing the exam. Jessica Yates, the Colorado Supreme Court’s attorney regulation counsel, says she reached out to other candidates who were in the testing room with the 2020 applicant, and none reported COVID symptoms or a positive test.
Masks are required at Colorado’s February 2022 bar exam, and candidates must demonstrate they are vaccinated or submit a negative COVID-19 test, Yates says.
“We’ve learned that masking and social distancing are very effective tools to prevent the spread of COVID, so we have a mask requirement,” she adds. Her jurisdiction is using more space for testing, so they can spread people out, and test-takers who have not confirmed they are vaccinated will be separated from those who have. According to Yates, 264 test-takers are fully vaccinated, 20 have said they are not, six did not fill out the form and three say they will be fully vaccinated in time for the test.
In Vermont, proof of a negative COVID-19 test is required for all bar candidates, regardless of their vaccine status, according to the state judiciary site. That could be the safest way to administer an in-person bar exam and help catch breakthrough cases, provided there are exemptions when needed, says Dorit Rubinstein Reiss, a professor at University of California’s Hastings College of the Law in San Francisco, whose research focuses on legal and policy issues related to vaccines. The plan, however, may not be feasible for many jurisdictions.
“First, we still have a testing shortage, and that might get in the way. It might just not be realistic for candidates to get tested in time,” she explains, adding that for testing to work, they would need to be done very closely to when the bar exam begins.
“You don’t have a great choice right now. The question is, which choice is the less severe,” Reiss says.