SAN FRANCISCO (CN) — The California Supreme Court has finally weighed in on the question of whether the State Bar should still administer a remote bar exam this year in light of the Covid-19 pandemic.
Their short answer is yes, though it pushed the exam dates to Oct. 5-6. The high court initially delayed the exam until September, ordering the bar to “make every effort possible” to administer the test online. With the additional delay, it seems clear that California will forge ahead with a remote test over objections from students and law school deans.
The justices took a sympathetic tone in a letter to the bar’s board of trustees Thursday, saying they understand that many law school graduates have seen their post-law school plans upended by the pandemic; losing job offers, health insurance and a means to pay off their student loans.
“With these considerations in mind, the court has sought the safest, most humane and practical options for licensing law graduates by encouraging and working with the State Bar to pursue the option of administering the California Bar Examination online as a remote test, to avoid the need for, and dangers posed by, mass in-person testing,” their letter says. California joins Arizona, Washington D.C., Kentucky, New Jersey, Maine, Maryland, Oregon, Pennsylvania, Tennessee, and Texas in holding an online exam in October.
The court urged law schools to help graduates lacking internet access or a quiet space to take the exam by allowing them to use school facilities and equipment.
The high court also settled in one fell swoop the thorny and long-running debate over lowering the bar exam’s minimum passing score, currently the second highest in the nation after Delaware, by announcing that the score will be permanently lowered from 1440 to 1390.
But one issue on which the court refused to budge was diploma privilege. Several states, like Oregon, Utah, and Washington, have granted graduates of all American Bar Association (ABA)-accredited law schools automatic admission to the bar without having first passed the bar exam. But California won’t be among them.
The justices said that unlike other states, law schools in California represent an array of different accreditations, not all by the ABA.
“If California were to adopt diploma-privilege criteria used by other states, graduates of nearly four dozen California law schools would not meet those criteria and would be excluded,” their letter says.
The State Bar’s board of trustees have been discussing since March whether to postpone the exam originally scheduled for July, opening up phone lines to dozens of anxious students who said they feared losing jobs contingent on passing the bar, or that they simply didn’t have a strong internet connection or test-taking space.
As students voiced their concerns during another public comment session in July, at least one board member appeared to fall asleep.
For many law school graduates, diploma privilege is the only option they can support.
“Diploma privilege is the most equitable solution,” said Ryan, a 2019 graduate who spoke with Courthouse News by phone late Thursday. He was not comfortable giving his last name as it could jeopardize his current employment with a law firm.
Ryan, who took the bar exam in February and failed by just six points, was particularly galled by the court’s sudden decision to permanently lower the cut score but not apply it retroactively to February’s test takers.
“When I see the cut score got reduced it makes no sense to me. Am I not competent?” he said.
Ryan said it felt like a last-minute concession.
“It’s almost like they felt it was necessary in order to save face,” he said. “They have never disclosed how the pandemic affected their grading procedure for the February exam. We don’t even know how they are grading or how the graders were affected by the pandemic. There’s so much unknown that’s going on at the State Bar and there’s a lack of transparency.”
In another compromise, the court also directed the State Bar to implement a temporary provisional licensure program, under which graduates can practice specified areas of law under the supervision of a licensed attorney. More details are supposedly forthcoming, but for now, it will apply to all 2020 graduates of California-based law schools or for law school graduates outside of California who are permitted to sit for the California bar exam.
“At a minimum, this provisional licensure program shall remain in effect until at least June 1, 2022 to permit 2020 graduates maximum flexibility,” the court’s letter says. “This timeframe will afford the 2020 graduates several opportunities to take the exam of their choosing through February 2022 and await the exam results.”
Graduates looking to take the bar this year now have until July 24 to register.