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NCBE Offers Online Bar Exam... Sort Of... Not Really

This isn't really all that productive.

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The National Conference of Bar Examiners has spent most of the COVID-19 crisis on the defensive, pushing back against any challenge to its near-monopoly over the attorney licensing exam process. Up until now, that’s included casting aspersions on states considering an online exam option — something the NCBE was unwilling to consider itself. But as of yesterday afternoon, the NCBE will support online exams. But not really.

With large, in-person gatherings discouraged, the annual July bar exam became a dangerous and, in most places, impossible proposition. Necessity being the mother of invention, the crisis got a lot of the country wondering, “why do we even have this test anyway?” and proposals for common sense reform started percolating and even taking hold in some jurisdictions. But common sense reform is not what an entrenched institution likes to see. After releasing a distressingly offensive report to trash diploma privilege advocates, the NCBE turned its ire toward states considering online bar exams — Massachusetts, Indiana, and Michigan — offering passive-aggressive statements of support while trying to intimidate other states by playing up that online exams would never get the NCBE seal of approval and therefore doom applicants to a career with no portability. States could, of course, just pass reciprocity agreements on their own, but that’s neither here nor there. The message was: step outside our process of forcing students into a bar exam during a pandemic or you’re doing a profound disservice to graduates.

But the NCBE has now updated its policy and will support these online exam states… with their table scrap questions:

NCBE will provide a limited set of questions (MBE, MEE, MPT) to jurisdictions for an emergency remote testing option for local admission during the COVID-19 crisis. The materials will be offered for a remote administration on October 5–6, after all three administrations of the bar exam/Uniform Bar Exam (UBE) have occurred, and will provide jurisdictions an emergency option should administering the in-person bar exam not be possible.

This remote testing option will not constitute the full bar exam or the UBE. Scores earned on the remotely administered test will be used for local admission decisions only, and will not qualify as UBE scores. The scores will not be eligible to be transferred as UBE or MBE scores to other jurisdictions or released to candidates via NCBE Score Services.

So, thanks for absolutely nothing.

The value of nationalizing bar exam authorship is the ability to frame questions that offer transferability between jurisdictions. If these exams will have no value outside of the home state, then the home state can draft questions just as good as the NCBE rejects. This is beyond an empty gesture from a test-administration agency that could devote itself to modernizing but simply sees no reason to while it’s holding monopoly power.

“NCBE continues to strongly advocate that a full-length, standard, in-person administration of the bar exam/UBE is best for a number of reasons, including psychometric issues, exam security, and the testing environment of candidates, who may not have access to comparable testing conditions or equipment,” said NCBE President and CEO Judith Gundersen, who didn’t take a bar exam herself having been admitted via diploma privilege. The crocodile tears over disparities in testing equipment nod toward genuine income inequality concerns before you remember that all of these students just did a semester over Zoom followed by online exams making this worry specious at best. There are a lot of issues to be resolved when it comes to reliably administering exams online… but this is the time to resolve them rather than ignore them.

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And if the organization we rely on for bar examination isn’t up to the task of moving into the 21st century, then don’t use them. In an ideal world, the NCBE would use its market power here to be an innovator because everyone is actually better off with a standardized test allowing maximum portability. But in the absence of any vision coming from them, write your own exams and form your own agreements on portability and reciprocity. There’s nothing magical about the NCBE other than their ability to scare officials into imagining change.

NCBE Trashes Diploma Privilege, Sprinkles In Some Racist And Sexist Conclusions
With NCBE Quibbling Over Online Bar Exams, Massachusetts Says They’ll Just Write Their Own
Indiana Orders Remote Bar Exam In Fit Of Reasonableness
Michigan Joins Indiana In Administering Online Bar Exam

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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