Law school graduates worried about security, privacy of online bar exam

Thousands of law school graduates are gearing up to take the bar exam online this year as the COVID-19 pandemic hinders plans to hold the test in person.

But with states allowing recent graduates to take the exam remotely in large numbers for the first time, test-takers are increasingly worried that security and technical glitches could create unnecessary headaches around their last major obstacle to practicing law.

“What the state bar is essentially asking the class of 2020 is to be guinea pigs of software that has never been tested on this important of a test and leaving everything up to chance,” Emily Davis, a recent graduate of Rutgers Law School in Newark, N.J., told The Hill.

The bar exam is typically administered annually at the end of July, with law school graduates unable to practice law until they pass it. This year, many states have decided to offer the multiday test through one of three online vendors in early October in hopes of helping halt the spread of the coronavirus by avoiding the in-person testing but also leaving graduates unemployed for at least two extra months.

The National Conference of Bar Examiners (NCBE), which drafts the Multistate Bar Examination portion of the test, announced earlier this month that it would provide an “emergency remote testing option” for jurisdictions struggling to safely offer the exam in person.

States and jurisdictions will be allowed to select a vendor to administer the test, with individuals monitored remotely while taking the exam. According to a spokesperson for the NCBE, the three vendors are ExamSoft, Extegrity and ILG Technologies, all of which have previously been used for online testing in classrooms.

“Each technology vendor has systems in place to help maintain the security of the remote exam and ensure a smooth testing experience for candidates,” the spokesperson said. “Jurisdictions that decide to administer the emergency remote exam will work with their selected vendor to address any security and technical issues that arise.”

Some privacy advocates are concerned about the off-site monitoring of test-takers.

John Davisson, counsel for the Electronic Privacy Information Center, told The Hill that this type of surveillance raises “alarms.”

“There are just so many questions when you have testing surveillance software that is going to allow proctors to peer into the homes and in many cases the bedrooms and intimate spaces of test takers,” Davisson said. “What data is it collecting? Is it only collecting what data is necessary for proctoring purposes?”

Davisson added that other questions include “how the data is being stored,” “whether it is going to be kept secured” and “who has access to it.”

Beyond surveillance, graduates are concerned about an unlevel playing field that includes varying internet connections and home environments that prove more challenging than others.

Josh Blackman, a constitutional law professor at the South Texas College of Law Houston, said he’s skeptical that the online vendors are prepared to handle the number of individuals taking the exam simultaneously. He compared it to the Iowa caucuses earlier this year, when the voting results were thrown into chaos through the use of a new app by the Iowa Democratic Party.

“I am skeptical the bars can do it with the requisite quality in such a short period of time,” Blackman said of remote testing, adding that officials should “proceed with caution and not simply anticipate an online exam that is easy.”

Law school graduates are starting to band together to push for states to waive the requirement to pass the bar this year and instead extend its benefits to students with a law degree. Critics, however, argue that would lead to unqualified attorneys.

In New York, more than 1,500 law school graduates, lawyers and legal academics set to take the bar exam this year signed on to a letter sent to the New York Court of Appeals on Monday asking the court to give them a hearing to discuss alternatives to taking the bar exam during the COVID-19 pandemic.

A similar letter was sent to the New Jersey Supreme Court by bar exam candidates in the state late last week, while the Maricopa County Bar Association sent a letter to the Arizona Supreme Court also pushing for a waiver that would extend the bar benefits to law students who received a diploma.

Davis and Catie MacDuff, a fellow graduate of Rutgers Law School in Newark, are among the leaders of the effort in New Jersey.

“If it’s going to be an online-only exam, you are essentially forcing people to download software,” MacDuff said. “During this age of digital privacy issues, we don’t really know what we are agreeing to.”

MacDuff noted that if individuals taking the bar remotely in October cannot complete the exam, they will likely not have another opportunity until February, further complicating job options.

Davis, whose start date at a large accounting firm has been delayed until January due to the bar exam being pushed back, emphasized that if there were problems with the online version, she could be unemployed and without health insurance during a pandemic for several months.

“Having diploma privilege would mean I could go into a small firm and make some money and support myself and maintain my life until January,” said Davis, who has already spent $4,000 in bar exam preparation fees.

Some states are forging ahead with offering the bar exam in person, but they’ve faced outcry from test-takers and other officials over the potential to spread COVID-19. Oregon, Utah and Washington, by contrast, have granted a waiver to law school graduates scheduled to take the bar exam this year.

Graduates are not alone in facing challenges related to standardized testing. Recent medical school graduates, students applying to law school or graduate school, and even high school students have been forced to take exams online this year, in some cases facing frustrating technical challenges.

The Washington Post reported that during high school AP credit exams held online in May, thousands of students may have faced difficulties in taking and submitting their tests.

For now, with months to go before October, law school graduates are in a holding pattern.

“We are the guinea pig generation that had the bad luck of taking the bar exam during a pandemic,” MacDuff said.