California Chief Justice Denies Bid for Open-Book Bar Exam

The California Supreme Court building in San Francisco. (Courthouse News photo / Maria Dinzeo)

SAN FRANCISCO (CN) — With the California bar exam just days away, California Supreme Court Justice Tani Cantil-Sakauye rejected a bid from more than a dozen law school deans to drop remote proctoring and make the test open-book. 

“There is great concern over whether and how the remote proctoring will work. Also, in order to administer a closed book exam, the California bar has developed detailed rules for students, such as not allowing food or books to be visible. This creates serious hardship for students who live in small apartments,” the 15 law school deans wrote in a letter to the California Supreme Court last month.

“Administering the exam without remote proctoring and in an open book manner would decrease the stress for many taking the bar. In addition, there is a nontrivial risk of significant technical issues or snafus in the planned administration that would be substantially alleviated by this alternative approach.” 

The deans said Indiana and Nevada shifted to an open-book format for their July exams.

The California bar exam is set to be given online Oct. 5-6, after the state Supreme Court delayed it from its original July dates because of the Covid-19 pandemic. The court also lowered the exam’s minimum passing score from 1440 to 1390, but refused to apply it retroactively.

Paul Caron, the dean of the Pepperdine University Caruso School of Law, posted Cantil-Sakauye’s reply Friday on TaxProfBlog in which she said “none of the jurisdictions administering the online exam next week have switched to an open-book format.” 

Cantil-Sakauye also said an open-book test would violate the National Conference of Bar Examiners’ policy, which bans books and notes for the multiple choice part of the test.

“To date, the NCBE has not changed that policy,” she wrote. 

In July, Georgia announced an open-book format for its bar exam scheduled for next week, but only for the essay portion. Its bar admissions site notes the NCBE requires the multiple choice and performance test portions to be closed-book.

The deans’ last-ditch effort comes amidst criticism from civil rights and privacy groups over the State Bar’s use of ExamSoft, a remote proctoring tool that employs facial recognition technology.

The American Civil Liberties Union expressed continued concern over the racial bias inherent in facial recognition software in a second letter to the court sent late Thursday.

“Reports from examinees of color who have completed practice versions of the California Bar Exam illustrate these concerns. One bar examinee, who is Arab-American, reports that he has attempted to verify his identity using ExamSoft’s facial recognition system at least 75 times in several different rooms and with various lighting arrays, but has been unsuccessful,” the ACLU’s technology and civil liberties director Nicole Ozer wrote. “Another bar examinee, who is a Black woman, reports that she plans to keep a light shining directly on her face for the duration of the two-day exam to prevent her skin tone from raising red flags.”

She continued, “Although the State Bar asserts that these barriers to identity verification will not preclude an exam taker of color from continuing with an exam session, it is likely they will trigger additional human review based on race. Accordingly, the racial biases embedded in facial recognition technology create a substantial likelihood that human reviewers will be watching exam takers of color with a closer eye.”

The State Bar responded to the ACLU’s first letter with an email saying, “At no point will the technology determine that any applicant has violated exam rules or conditions. Any issues flagged by the software will trigger a minimum of four independent layers of human review (two by human proctors through ExamSoft’s proctoring partners and at least two by the State Bar reviewers) before we make any final determination that an applicant has violated the identity or integrity standards.”

Cantil-Sakauye quoted the State Bar and attached its response in her reply to the deans.

“As the attached letter from the State Bar explains, proctoring software will not determine any examinee’s identity, integrity, eligibility or passing grade, nor will the software be used to prevent any applicant from completing their exam. Instead, multiple layers of human review of the exam videos will permit human proctors to make those determinations,” she wrote.

“In addition, to alleviate any privacy concerns involving the use of the proctoring software, the court has just recently expressed agreement with the State Bar’s decision to exercise its contractual authority to request that ExamSoft, and its third-party providers, destroy all of the personally identifiable information collected by the proctoring software,” the chief justice wrote.

Caron said the deans were not surprised by the chief justice’s response.

“Frankly we were expecting this,” he said. “We understand it, but we’re the ones that are dealing with our students on a daily basis. We know the impact all of this has had on our students and this whole situation is sort of unprecedented. We just think it isn’t right to put them through this really difficult process with all of the uncertainty.”

The deans had hoped California would be amenable to adopting some of the accommodations other states have granted. “It’s hard enough to pass the bar exam. We’re asking them to do so much more than graduates in other years,” he said. “We hope the court got this right and it will be able to be pulled off without a hitch.”

Given that 10,000-plus applicants have registered to take the bar exam and will do so remotely Monday, he still has his doubts. “That’s a large number to go through this unprecedented approach.”

%d bloggers like this: