Law School Grads Demand Retroactivity for New California Bar Exam Passing Score

Several recent law school graduates protest the California Supreme Court’s refusal to make the state bar exam’s new lower passing score retroactive. (Courthouse News photo / Maria Dinzeo)

SAN FRANCISCO (CN) — With a problematic online bar exam looming less than a month away, a contingent of law school graduates carrying handmade signs gathered Thursday morning on the steps of the California Supreme Court to advocate for admission to the bar based on their past scores.

For these graduates, October will mark their second, third, or fourth crack at the exam. But for all of them, it will be their first time sitting for the test remotely under pandemic-induced constraints. California’s bar exam is notoriously difficult to pass and an online, A.I.-proctored test poses unprecedented challenges. 

With Covid-19 upending plans for mass in-person testing in July, the California Supreme Court, which oversees the state bar, initially decided to delay the exam until Sept. 9. The court also ordered the bar to administer the test online, and later pushed the exam dates to Oct. 5-6 when September began to look unrealistic. 

The high court also settled in one fell swoop the thorny and long-running debate over lowering the bar exam’s minimum passing score, once the second highest in the nation after Delaware, by permanently lowering it from 1440 to 1390.

This triggered the problem now facing repeat takers whose past scores fell within the passing range.

The decision whether to apply the lowered minimum score retroactively rests with the Supreme Court, which declined to do so in August. 

But the court is currently weighing the idea amid calls from law school deans, bar applicants and lawmakers. The cause drew the attention of the California Assembly, which passed House Resolution 103 in late August, urging the court to retroactively apply the lowered passing score as far back as 2015. 

“We feel we’re not asking for any changes,” UC Hastings graduate Viktoriia Pirumova said Thursday, adding that the rules allow admission to the bar up to five years after taking the exam. “It’s not a favor, it’s our right.” 

She took the bar exam in July 2019 and her score meets the new threshold for passage.

Taishi Duchicela, a Loyola University of New Orleans College of Law graduate, said preparing for the October test has been acutely hard with the added stress of single-motherhood and a full time job. 

“I have a son who is doing distance learning. I work. It’s difficult,” she said. “And it’s not just me, there are a lot of other mothers who are dealing with this.”

 A good internet connection is another concern, as well as a quiet, empty space to take the exam. 

“You have to have an empty room and that’s not possible if you live with other people,” Duchicela said.

For Gabriel Buelna, who took the exam in February and scored 1435, just five points short of passing under the old standard, the Supreme Court’s decision to lower the standard in August seemed arbitrary. 

“You’re asking people to jump twice. We’ve already passed, now you want us to take it again, and for what?” he said, holding a sign that read “Retroactive Admission = Justice.” 

When Buelna took the exam in Oakland in February, all the staff were wearing masks. It seems odd to him now that the court would lower the passing score when Covid-19 seemed like an issue far earlier in the year. 

“The decision was just so random,” he said. “Now I have to redo it under completely different circumstances.”

Buelna suffers from a vision disorder — congenital nystagmus — that makes it difficult for his eyes to focus on screen-based texts. He’s been given an accommodation to take the test in-person, but worries about the 90-minute “performance” portion of the test that requires applicants to quickly digest pages of material and write a brief or legal memo. 

Under regular circumstances, Buelna would be able to flip through a multi-page packet. Now he’ll have to scroll through those materials on a screen, something his eyes just cannot handle.

“After a few minutes, my vision becomes blurry,” he said. “If you don’t have good vision, going back and forth is very difficult. They’ve made it physically impossible to take the test.”

Buelna isn’t the only applicant with a disability who believes they’ve been left in the cold. On Monday, three law graduates with underlying medical conditions sued the state bar, claiming it failed to accommodate disabled test-takers with its remote exam by limiting bathroom breaks and requiring long periods of sitting in front of a webcam.

Buelna is not a part of the lawsuit but said more attention should be paid to those facing unique physical challenges. 

Julian Sarkar, a practicing attorney licensed in California and New York, also joined Thursday’s protest. His support for the cause stems from a friend’s suicide in 2016. 

“He was on his way to becoming a great lawyer,” Sarkar said. 

He’s been working “day and night” on a petition to the Supreme Court that argues, among other things, that the bar exam has no rational basis and is designed to exclude minorities and women from the legal profession. It also challenges the state bar’s myriad fees. 

“It’s not about public protection, and it’s not about minimum competence,” he said.

So far, the court has not responded.

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