The American Bar Association would urge states to abandon plans for any future in-person bar exams during the COVID-19 pandemic under a last-minute resolution being proposed to the organization's House of Delegates.

In lieu of in-person exams, jurisdictions should consider alternatives including supervised practice programs, emergency diploma privileges and remote bar exams, according to the draft resolution, which was still being finalized Thursday. But states offering remote bar exams should ensure that their testing platforms are secure and reliable, and they should be up front about how the exams will be proctored and scored, and what data will be collected from applicants, it reads.

"No one should have to choose between their long-term health—or life—and a licensing examination," reads the report accompanying the draft resolution. "However, bar applicants in jurisdictions scheduled to administer an in-person bar examination are being required to do so."

The new resolution was submitted by the Virgin Islands Bar Association. The ABA's section of state and local government law and the ABA law student division are slated to vote Friday on whether to join as co-sponsors. Anthony Ciolli, who is one of the Virgin Islands' ABA delegates, said in an interview Thursday that the resolution is currently being reviewed by the committee of rules and calendar and could be modified before it comes up for debate when the House of Delegates meets virtually Aug. 3 and 4.

Even if the House of Delegates approves the resolution, it will come too late for test takers in the 23 jurisdictions that held in-person bar exams July 28 and 29. One test taker in Colorado has already tested positive for COVID-19 immediately after taking the exam. But 11 more jurisdictions still have plans to administer an in-person exam in September. A growing number of jurisdictions, including New York, California, Illinois, Ohio, Pennsylvania and Washington, D.C., have canceled their in-person tests and instead of giving an abbreviated online bar exam designed by the National Conference of Bar Examiners on Oct. 5 and 6.

Ciolli said the resolution came together quickly after Indiana and Nevada postponed their online bar exams mere days before they were to take place July 28.

"It went from idea to draft resolution in 12 hours," he said. "And then about 12 hours from then, it got submitted to rules and calendar. It has been a very quick process."

If adopted, the resolution would mark the second time that the ABA has weighed in on new lawyer licensing since the pandemic began. The organization's Board of Governors in April adopted a resolution urging jurisdictions to cancel the July bar and allow 2019 and 2020 law graduates to practice under supervision until they take and pass the bar exam in 2021.

Ciolli said that the resolution does not attempt to direct jurisdictions to any specific alternative to an in-person bar exam, and that attorney licensing entities need to think through the best solution for their individual circumstances. But an in-person exam should be off the table, he said.

"This is not a diploma privilege resolution," he said. "It's a resolution calling for state supreme courts and other licensing authorities to take common sense precautions that balance public health concerns with the needs to expeditiously license recent law graduates and other bar applicants. All this resolution does is say, 'This in-person bar exam is not safe and cannot be administered under these current conditions.' That is crystal clear."

Much of the resolution is devoted to remote bar exams and the steps jurisdictions should take to ensure they are successful. The report notes that both Indiana and Nevada postponed their online bar exams with just four days notice due to technical issues with the online exam platform. (Indiana has since abandoned that platform altogether and plans to give its Aug. 4 exam by email.) And some online test takers in Michigan ran into delays mid-exam.

Not only does the resolution urge jurisdictions to test remote exams to ensure they work properly, but it also calls on them to provide reasonable accommodations for disabled test takers, those who lack reliable Internet, and people who are caregivers for children and family members. And they should be up front and clear with test takers about how remote proctoring will work. A growing number of law graduates are publicly opposing online bar exams, citing concerns that the use of artificial intelligence in proctoring discriminates against nonwhite candidates. (Remote proctoring generally relies on computer cameras and microphones to detect potential cheating.)

"Tens of thousands of law school graduates have worked their entire lives towards the goal of becoming licensed attorneys, but have had the misfortune to graduate during the worst pandemic in a century," reads the resolution report. "Simply put, a once-in-a-century pandemic warrants a once-in-a century solution. We urge the highest courts or bar admissions authorities of each jurisdiction to take these modest but necessary steps to safeguard public health and safety without closing the doors to our shared profession."