There is no doubt about it. Covid-19 has made the need for an alternative to the in-person bar exam a problem that needs a solution now. But states are scrambling. The result is a patchwork of solutions that seem ill-prepared and ill-equipped to meet the present need.

Bar Exam History

For hundreds of years, the legal profession has administered testing to ensure that barristers are qualified. In the U.S., the National Conference of Bar Examiners’ (NCBE) stated mission has been to promote fairness, integrity, and best practices in the admission to the legal profession in order to benefit and protect the public. That mission and how it has played out in practice, has led to a system that has had the effect of creating and reinforcing racial barriers to admittance to licensure according to critics.

Online Bar Exams May Only Serve to Exacerbate the Problem

On the face of it, it is tempting to believe that an online bar exam will be more than fair in its application. After all, all examinees will be facing the same exam and exam process. Removing the in-person component during a pandemic should make the process safer while still meeting the standardization requirement.

But while we are all on the same ocean, we are not all in the same boat. Removing the in-person component and moving the exam online exacerbates other issues for examinees. Issues such as having a reliable computer, reliable internet, a quiet place to take the exam, all become additional hurdles that an examinee may or may not be able to overcome. Many of these issues fall out over socio-economic and racial lines.

Technical Glitches and Ill-Prepared Exams Can Lead to Erroneous and Unfair Results

Adding to the problem, states have had little or no time to prepare for online bar exams. Some states are continuing with in-person testing using temperature checks. Other states have had to postpone exams and may do so again. Others are preparing for online testing in the fall.

Software by ILG used in Florida’s August 7 bar exam and Indiana’s July bar exam, caused computers to crash. It also failed to accurately record answers when it was up and running. Indiana’s July bar was ultimately given via email using open-notes by the examinees.

Proctoring Problems

Proctoring the online bar also has its share of difficulties. The software begins recording when an examinee logs in. It measures the body and its movement, over the course of the exam. If it identifies movements associated with cheating, it alerts the proctoring officials. This sounds straightforward.

The problem is in the state of the technology itself. The software uses a combination of machine learning, AI, and biometrics such as facial recognition, facial detection, and eye tracking.  This software often proves inaccurate, especially for people of color and for females. In both categories the facial recognition software has difficulty with identification of the examinee, causing misidentification. While identification can sometimes be rectified on the day of the exam, it can increase anxiety, lead to a loss of composure, and the ability to think clearly.

In addition, remote bar examinee’s must be careful not to look away from their computer’s camera for more than a few seconds. Doing so may be misconstrued as cheating. There should be no fidgeting, stretching, touching your face, or other large movements that might be misconstrued. All of this may have a negative impact on the examinee.

Concerns Over Biometrics Being Misused

In addition to all of this, remote bar examinees have begun to express their concern over the collection, and other use of their biometrics. In addition to facial recognition, these programs are able to pick up quite a bit of information about a person from their background in the camera. Other people, furniture, and the like can come into view of the camera. Bar examinees would like more clarification about the tools being used and what happens to their information once the bar exam is completed.

Learning As We Go

All of this paints a picture of a work in progress. There is no doubt that in-person bar exams are not safe in many areas at present. This leaves online bar exams as the natural default tool for many states. An online bar exam is safer by far. However, these exams so far have not been problem free.

Some states are delaying their bar exams. Colorado recently decided to delay the next bar exam until 2021, allowing law school graduates to work in a limited capacity until they are able to take the bar.

The situation continues to evolve. For bar candidates, it is best to keep checking their state’s bar requirements and plans.  Candidates should prepare themselves for a fluid situation.