The California Supreme Court decided on July 16 to move ahead with the California Bar Exam, rejecting the pleas of law school graduates, practicing attorneys and advocacy groups to adopt diploma privilege and waive this year’s examination in view of the hardships caused by the coronavirus pandemic.
Instead, the California Supreme Court gave graduates two options: opt for a two-year temporary provisional license or take an online bar exam on Oct. 5-6, 2020. According to a letter released by the California Supreme Court, a provisional license is “a limited license to practice specified areas of law under the supervision of a licensed attorney.”
The decision presents a tough choice for graduates as they decide which option to pick.
Recent Stanford Law graduate Alex Wu J.D. ’20 said in an interview with The Daily that while he appreciates that the court seemed to recognize the challenges recent graduates face, “I don’t think that the solution meets the moment. I don’t think the solution that they proposed actually addresses those issues that they themselves bring up.”
“I think it’s a bit of a Hobson’s choice,” said Marika O’Connor Grant J.D. ’20, a Stanford Law graduate who helped write a diploma privilege advocacy letter to the California Supreme Court. “A two-year provisional license means you’re going to have to take the exam in two years.” O’Connor Grant believes that the Supreme Court just “kicked the can down the road.”
“People don’t know what will happen to them in two years, especially given this pandemic,” O’Connor Grant added. “A lot of people don’t know what’s going to happen and so to say, just wait two years and then you could take it isn’t really a fix.”
Provisional licensing
Many graduates see no option but to take the online test in October, because they fear that possible employers will rescind offers if they obtain a limited license that will expire in two years.
Wu said that the provisional license “is an inadequate solution because it requires direct supervision by an experienced attorney and there are State Bar rules about who’s allowed to supervise them . . . the reason that [law firms] are hiring you is that you can handle your own caseload from day one.”
“I think a lot of folks are going to lose job offers if they haven’t lost them already,” said Stanford alumna and Harvard Law graduate Donna Saadati-Soto ’15. “And I think this could just push back some of the start dates. I know there are some firms that have been waiting on these decisions, they haven’t given people a start date because they don’t know what’s going to work with the licensing scheme.”
Saadati-Soto is also the co-founder of the national organization United For Diploma Privilege, which advocates that law school graduates be granted “diploma privilege” in states across the nation.
Without employment, graduates are accruing interest on student loan debt that needs to be paid.
“Once September hits, those loan payments don’t stop for us,” Saadati-Soto said. “So we have to figure out how we make those payments. We’re going to need to have employment at the time . . . from now until our start date, we have to figure out how to pay our loans, our rent, our bills.”
Jackie Aguirre, a graduate who wishes to keep her law school private, is planning on taking the October bar exam and told The Daily that employers might not see a reason to pay graduates with a provisional license as much as they usually would.
“It sounds really nice, but it’s really no different than when we were interning in law school,” Aguirre said. “It’s no different than a summer internship, because, why would anyone pay you like an attorney if you’re not [officially] licensed and they have to oversee everything that you do anyways?”
And even if graduates can find employment with the provisional license, they will still need to study for and take the bar exam within two years. Most students agree that it is near impossible to work and study for the bar, a test which requires a couple of months of intense and focused study at minimum.
“If you’re clerking for a judge, working in a law firm as a public defender or a district attorney, your employer is relying on you to do a ton of work … I can’t imagine that at some point, they’re going to give you two months off to study for the bar exam,” Saadati-Soto. “I can’t imagine my law firm giving me two months off in the middle of my employment to study for the bar exam.”
Online bar examination
Due to the issues besetting provisional licensing, many graduates see the online test in October as their only option. However, just like with provisional licensing, there are serious problems with the online exam.
To avoid the need for continuous high speed internet access, the online test will only require users to log into each session. Once logged in, test takers do not need an internet connection. However, reliable internet access is still required. “Before the next session starts, you have a 10-minute window in which you must log on,” Wu said. If a test taker’s internet goes out for 20 minutes they will miss the 10 minute window to log in. The exam is formatted so that if test takers miss the 10 minute window, they will be unable to get into the session and will not be able to complete the exam.
In a survey sent to more than 1,400 members of the national organization United For Diploma Privilege, “72.3% of respondents answered that they will either not have, or are unsure of whether they will have, access to reliable and consistent internet to take the Bar examination if administered online.” There is also concern about the efficacy of administering an online test for the first time. Tom McMasters, a technology and data privacy lawyer, told The Daily he is worried that ExamSoft, the company that will be administering the online bar exam, has a “compressed time frame” to create a test that will be administered to thousands of students at the same time.
The Detroit Free Press reported on Jul. 28 that Michigan’s online bar exam — built by ExamSoft — crashed with only 733 people taking the test. While all test takers were able to complete the exam and a spokesperson of the Michigan State Bar and Supreme Court stated that a cyberattack caused the crash, many California test takers are worried because California is also using ExamSoft and will have far more students taking the exam than Michigan did.
Another issue at hand is the exam’s security system: an AI software that will flag test-takers for cheating if they are seen having a prohibited item in the exam room, leaving the view of the webcam, not having the webcam centered on their face completely and using an unauthorized electronic device during the exam, according to the California State Bar October 2020 Bar Exam FAQ. Exiting the exam room outside of scheduled breaks/lunch or having others (including pets) in the exam room while they are testing will also flag the test taker as cheating.
These regulations have graduates worried that the AI will flag test-takers who are not cheating.
“So it reads your eye movements,” Saadati-Soto said, “and at some point in the exam, if you have a different, weird disruption in the pattern of your eye movement … it’ll flag you as cheating [if] it thinks that you’re looking at something. If you’re standing up or moving it’ll flag you for cheating.”
Aguirre told The Daily that a family member accidentally walking into the room might qualify you as cheating. According to United For Diploma Privilege’s previously mentioned survey, “76.9% of respondents answered that they did not have, or are unsure of whether they will have, a quiet space without interruptions to take an online bar exam.”
McMasters argues that this process for disqualifying cheaters simply does not make sense. If a graduate is constantly looking to the side and not at the camera, the AI will flag this behavior as possible cheating. Though two human proctors will examine the video after the test to determine whether the test-taker cheated, it will be impossible for the proctors to truly know what the test taker was looking at without being able to ask the test-taker to rotate their camera around their desk to prove they were not cheating.
“[Bringing] disciplinary proceedings against somebody and permanently ruining their legal career on the basis of just watching their face while they took a test when you didn’t go check it out at the time seems very strange to me,” McMasters added.
Aguirre also argued that those taking the bar exam know that cheating is almost impossible. “It’s a timed exam,” Aguirre said. “There’s no cheat sheet for a bar exam, you would need to have a 50 page outline minimum because you don’t even know what subject they’re testing.”
Despite the myriad issues plaguing both options, Wu said that he believes the California Supreme Court still has room to alter their decision and help out graduates. He would like the Supreme Court to give a provisional license where graduates do not have to be supervised, and with enough hours could eventually earn their official license without taking the bar exam.
“Provisional licensing with a pathway to licensure that doesn’t include the bar exam,” Wu said, is a viable option for the California Supreme Court to ensure that newly practicing attorneys demonstrate their competence while avoiding the problems in the options currently provided.
This article has been corrected to reflect that Marika O’Connor Grant’s last name is O’Connor Grant. The Daily regrets this error.
Contact Sahil Venkatesan at sahiljv15 ‘at’ gmail.com.