exam students

California's Supreme Court on Thursday evening rewrote plans for the state's fall bar exam, canceling the in-person test set for September, setting a two-day online test in October and authorizing a provisional licensing plan that will allow law school graduates to temporarily practice law without passing the test.

Additionally, the court ordered that the score needed to pass the test—a figure known as the cut score—be permanently reduced from 145 to 139. The previous cut score was the second highest in the nation and regularly resulted in thousands of law school graduates failing a test that they would have passed under other states' scoring rules.

The whirlwind of COVID-19-inspired changes, announced by the court on its website and in a letter to the state bar, does not grant diploma privilege, which would have allowed recent graduates to practice permanently in California without taking the exam. Law school deans and alumni had lobbied for the exemption due to COVID-19-related hardships.

"The court recognizes that postponement of the bar examination may impact employment prospects, delay incomes, and otherwise impair the livelihoods of persons who recently have graduated from law school," Supreme Court Clerk Jorge Navarrete wrote in a letter to Alan Steinbrecher, chairman of the bar's board of trustees. "Moreover, the court recognizes 2020 graduates may not be in a position to study and prepare for a fall bar 2020 examination."

The provisional licensing program will be available to all 2020 graduates of California law schools and qualified out-of-state schools.

"At a minimum, this provisional licensure program shall remain in effect until at least June 1, 2022 to permit 2020 graduates maximum flexibility," Navarette wrote. "This timeframe will afford the 2020 graduates several opportunities to take the exam of their choosing through February 2022 and await the exam results."

Additional details on the temporary licensing program will be worked out by the state bar, he said.

"The decision was rather more than I thought that I could hope for, and certainly more than I expected," UC Hastings School of Law Dean David Faigman said in an email. "I am deeply grateful to the Supreme Court for this decision, which takes into account the needs of the candidates for the bar and ensures protection for the public. It is a sensible and fair outcome."

California's decision adds to the patchwork of responses to the bar exam dilemma by states, who have chosen a range of options, from plowing ahead with an in-person exam to opting for online testing to canceling the second sitting of the year altogether. New York's Court of Appeals on Thursday nixed that state's planned Sept. 9 and 10 in-person exam, which typically attracts 10,000 test-takers. The court is still weighing next steps, which could include an online exam or diploma privilege.

More than 12,000 applicants have registered to take the fall bar exam, a state bar executive said Thursday.

Potential test-takers have criticized plans for an online exam, questioning privacy protections and potential technical difficulties.

In a letter sent to the California Supreme Court on Thursday, the ACLU raised concerns about online exam software's use of facial recognition technology to proctor the test.

"Race, gender, disability, and other biases built into facial recognition algorithms all but guarantee test-takers from marginalized groups will also be disproportionately impacted by erroneous identifications during the exam and the ongoing surveillance risks that stem from having their biometric information enrolled in a facial recognition database," four ACLU attorneys wrote.

"The State Bar must find a solution to the administration of the bar exam that will meaningfully address inequities, not perpetuate them," the letter said.

 

 

Read the letter from the California Supreme Court to the bar:

 

Read more:

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Law School Deans Lobby California Court for Diploma Privilege in Virus Era

How Law Schools Fared on the February 2020 Bar Exam

UCLA's Mnookin on Bar Exam's Future and Virus-Era Challenges for New Grads

California Bar Exam Pass Rates Drop to All-Time Low 26.8% on February Test