Recent law graduates must have diploma privilege during the coronavirus pandemic, panelists said Tuesday, as candidates face inequities and security risks to digitally take the state Bar examination after the test was postponed a second time last month.
State lawmakers heard testimony late Tuesday morning in the Senate’s Judiciary Committee about the impact of the COVID-19 pandemic on recent law school graduates, the New York Bar exam, which graduates must pass to practice law, and alternate pathways to attorney admission.
“This exam is almost a charade,” professor Deborah Jones Merritt at Ohio State University’s Moritz College of Law said Tuesday. “It’s a pretend exam because there’s no way to score it even if we get through the other problems.”
The digital Bar exam will not accurately assess applicants, Merritt said, as candidates will pass or fail based on their raw score. Digital Bar exam scores will not be scaled, according to the National Conference of Bar Examiners.
New York’s passing score is based on scaled scores, which are higher than the raw points.
“A 124 raw is equal to a 133 scale — that would be a passing score in New York, but you’ll have no way of knowing,” Merritt said. “They [NCBE] said it’s up to the states. They know this is a problem, but they’re not being sufficiently candid about it.”
The state Bar exam, which had been rescheduled for early September, will instead be administered remotely in the beginning of October, state Chief Judge Janet DiFiore announced July 28.
Candidates who signed up for the in-person exam on Sept. 9 and Sept. 10 will automatically be registered to take the online bar exam on Oct. 5 and 6, according to the New York State Board of Law Examiners web site.
Registrants for the September exam who don’t want to take the remote test can withdraw from it, the website said.
The test was originally slated for July 28 and July 29.
Judiciary Committee Chairman Sen. Brad Hoylman, D-New York, and Assemblywoman Jo Anne Simon, D-Brooklyn, sponsor S8682a/A10794 in the state Legislature to grant diploma privilege for law school graduates from an American Bar Association accredited institution seeking to practice law in the state during the COVID-19 state of emergency.
“It seems to me there are validity issues in the giving of an online exam,” Simon said. “I feel like there’s no plan B, and I’d like to address that issue.”
The measure sits in the Senate Rules and Assembly Judiciary committees.
Other proposed bills in the Legislature would grant law graduates diploma privilege with a suggested 100 hours of supervision.
Merritt advocated for diploma privilege Tuesday, as law school graduates have completed clinics, internships and hundreds of hours of supervised experiences practicing law.
“They have the qualifications — it doesn’t make sense to put more stress on them and a charade of the exam that will end up failing people who would have passed a normal exam,” she said.
Bar exam candidates are concerned the nearly 20,000 projected applicants slated to take the test in October will flood and crash an unprepared server. Applicants must submit video and audio recordings as part of the exam.
Others are worried the group’s private information will be vulnerable to a data breach.
“When we let any exam software into our computer, we’re letting them into the most intimate areas of our lives,” CUNY law graduate Leslie Ann Caraballo said.
Simon expressed concern the three digital bar exam software vendors, ExamSoft, ILG Technologies or Extegrity Exam4, have not disclosed the waivers test takers must accept to use the program.
“These are complicated waivers,” Simon said. “You could be waiving all sorts of rights if you just click on it, and obviously, that information could be misused. ... There has been no disclosure about what the data collection will be in New York.”
The available software has already proven to be flawed, Penn Law graduate Mike Machado said, recounting a distributed service attack while 800 Bar exam applicants in Michigan digitally took the test with ExamSoft.
“It suggests some vulnerability on the part of ExamSoft,” Machado said. “It’s an indication their server lacks capacity. This was only with 800 or so examinees logging in. We have no reason to believe that it has the capacity to handle 20,000.
“We don’t think we could necessarily trust their software.”
Two states emailed candidates the Bar exam in an open-book format, Machado said.
Graduates and law school administrators Tuesday also highlighted the risk of compromised examination results without adequate proctoring, which is most effectively done in person.
Legal professionals, including professors and graduates, are pushing for an alternative way for attorneys to get their license and practice law because legal representation is needed more than ever during the pandemic, Caraballo said.
“Medical students could hit the road running and meet the needs of the most vulnerable at the height of the pandemic,” the CUNY graduate said, going on to speak about injustices to tenants wrongfully evicted during COVID-19.
“We are not medical personnel, but ... we are going to be meeting the needs of the public that needs us,” Caraballo said. “That’s what we’re seeking to do.”
Recent graduates spoke of concerns about having physical scratch paper — a necessary tool for many people in the multiple choice section of the exam, Brooklyn law graduate Kayla Smith said.
“The best way to focus on the question is to annotate, highlight, using process of elimination... we don’t know if we’ll be able to do that,” she said. “We haven’t been given information about what we will really have access to.”
The abnormal circumstances will negatively impact candidates’ scores, she said.
“Even if the online exam does work, it’s still not going to be an adequate representation,” Smith said.
Bar exam applicants in multi-member households or with children will struggle to take the exam in an uninterrupted space. Some law schools are offering candidates an opportunity to take the exam on campus, but the congregate groups of people pose an increased risk of spreading the coronavirus.
“This online exam and everything everyone is experiencing — it may not lay racial lines, but this is an economic class issue,” Caraballo said. “How it’s financially and medically affecting people ... this is going to fall harder on students and graduates in communities of color.
“...If they want their lawyers to look like them, what are we doing to facilitate that?”
Smith and Caraballo pleaded for lawmakers to pass the bill granting law school graduates diploma privilege through the COVID-19 pandemic, citing equity issues that cannot be solved by the October test date.
Hoylman and Simon called on the state Court of Appeals and the National Conference of Bar Examiners to further address the issues surrounding the exam.
“The current situation is untenable for our recent law grads,” Hoylman said. “It’s going to undermine our ability to help low-income clients survive and thrive post-COVID-19. That’s our mission today.”
Tribune News Service contributed to this report.
*Editor's note: This story corrects an earlier version that misspelled Leslie Ann Caraballo's name.