Law Schools

NCBE President Gives Trainwreck Of An Interview

The plan for the October bar exam is... no plan at all.

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NCBE President and CEO Judith Gundersen sat down for an interview with Karen Sloan from Law.com and opened up about COVID, diploma privilege, and where we go from here. And let me tell you, folks, it was a mess! But for everyone watching as online exams have been fraught with disaster so far, here’s Gundersen’s take on the NCBE’s plan for the October administration where multiple jurisdictions are trying to simultaneously deploy a system that immediately crashed when one mid-sized state tried it:

What’s the alternative if the online Oct. 5 and 6 exam is a disaster? Where do we go from there?

That’s a good question. I would be very surprised if that happened, given all the good and thoughtful professionals who are working on this. Why don’t you interview me Oct. 6.

Ahem.

“The plan is no plan at all” should be engraved upon the NCBE seal. These are obviously tough times and everyone’s struggling. For all the faults with the plan, an online bar exam was a noble attempt to make the test safer — and one that Gundersen and the NCBE immediately shit all over before realizing they were losing that public relations battle — but at this point the possibility of a complete failure in October has to be taken seriously. One of the nation’s leading testing software providers has already weighed in that it’s completely infeasible. And yet there’s no contingency plan for October other than hope and good wishes?!?

It just underscores the overarching problem with the NCBE. Later in the interview, Gundersen has occasion to say, “Our interest—as it always has been—is to consistently and professionally serve courts and boards of admission,” and that’s the whole problem because it absolutely isn’t. There’s a fundamental disconnect between how the NCBE markets itself to states as some kind of attorney licensing process thinktank when in reality the NCBE is a testing company whose only interest is in selling more tests. The sooner all parties to the licensing question recognize this the better.

Nowhere is this more pronounced than in the NCBE’s role in attempting to squelch emergency diploma privilege efforts across the country. Sloan asked about this head on:

There has been a lot of criticism directed at the NCBE and you personally for how things are playing out this cycle—particularly that the NCBE is opposing the adoption of diploma privileges. Do you think that criticism is fair?

There has been a lot criticism leveled at NCBE and me, and it probably is part of the territory working at the organization that produces the bar exam. I think some of the anger and criticism about diploma privilege is misguided at NCBE. NCBE isn’t making the decisions in any of these states, as far as whether to proceed with the bar exam, when to do it, and whether to do it at all. That’s a state-by-state decision.

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It’s bizarre that Gundersen expects this level of naïveté from an audience of attorneys and soon-to-be attorneys. Yes, it’s a state-by-state decision… informed by a multimillion-dollar lobbying group that provides all the half-baked data that informs those decisions. The NCBE sits on over $111 million in net assets and turns an additional $5-8 million in profit every year and works very hard to assure states that the only defense against anarchy is keeping that gravy train going. Online exams themselves were a well-meaning effort and when first proposed, the NCBE swiftly told states that they were doing a disservice to young attorneys for questioning in-person exams in a pandemic arguing that there would be no portable licenses without the NCBE’s blessing. Thankfully some states have dusted off some old books and realized that, in the before time… the long long ago, states used to be capable of negotiating their own reciprocity deals.

Does the NCBE have a conflict of interest on the diploma privilege issue given that the whole purpose of the organization is to create and perpetuate the bar exam? Should you stay out of the discussion?

We’re certainly not in the discussion right now.

Wait for it…

We put the white paper out to provide important background information and context.

The “white paper” described here was eight pages of diploma privilege advocates eat babies rhetoric that the NCBE threw together and stuck under the noses of state bar examiners and supreme courts in the interest of setting the narrative early on as COVID started to manifest across the country. To the extent Gundersen says she’s “not in the discussion right now,” she’s leaning heavily into “right now” as in “not while I’m speaking this specific sentence.”

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This whole thing is a slow-motion trainwreck. There aren’t any flashy gotcha moments, just straightforward questions followed by nakedly debunked buzzspeak. Some people on social media are dragging Karen Sloan for this being a softball interview but I think she knows her audience is reading these answers with enough savvy to not take these answers at surface-level.

Some diploma privilege advocates are concerned that the character and fitness review process is being used by states to try to silence them. They heard the comment you made last week on that online symposium as a threat. What did you mean?

NCBE has no role in character and fitness.

But…

We do provide the investigations for some states, but we make no decisions, we just provide information, like school transcripts. Those decisions are all made by courts, boards of bar admission, or by character and fitness boards in some states. I had just come off a conference call where [jurisdiction] administrators were noting the change in the kinds of back-and-forth communications they’ve had with examinees forever, and how different it was this year. Whether and what these staff members for these boards will do with that—it’s not up to me.

We report, state officials decide. There’s certainly no reason someone might construe the agency that provides investigative reports to Character & Fitness of being able to influence the outcome of that inquiry based on the report… nope, no siree!

I went back and rewatched that symposium panel. It really does sound like you were saying not that NCBE would take actions against people, but that you were hearing states tell you that they would bring those examinee communications into their character and fitness reviews.

The conversation that I was listening to was just a recognition that this has been more of an issue. What they are going to do with it probably varies among states. More than anything, it was how the conversation has really shifted from prior years. It’s the volume and the tenor that has been different.

Alright, let’s talk about this. You can listen for yourself at the 3:50:10 mark of this video. This characterization is technically accurate in the same way Trump’s fondness for “some people are saying” is accurate. Maybe this is a reflection, uninfluenced by anything she said on this call, of how some state bar examiner felt. But it was Gundersen hyping it to a broader audience and weaponizing it as “all y’all better watch your mouths.” Cautioning that “criticism” will be rebranded as “a lack of civility” is an effort to silence that criticism. We will never know what the bar examiners on that call really said, but that’s not really the point — as I put it at the time:

Did the president of the NCBE really threaten to keep bar exam critics from getting licenses? Well, it depends. If you’re the sort of person who thinks a mobster saying “nice little shop you have here, it’d be a shame if something happened to it” is just expressing well wishes on your business endeavors, then no. But if you’re one of the people residing in a reality-based society, then she absolutely did.

The whole interview is amazing and reads like an embattled Prime Minister explaining how reports of the coup are overblown and it’s jaw-dropping. Try reading the whole thing in the Mr. Burns voice. Just take “Remember a shiny new donkey to whoever brings me the head of Colonel Montoya” and replace “Colonel Montoya” with “whoever runs @BarExamTracker.”

‘I Understand the Anxiety and the Anger,’ Says Top Bar Exam Official [Law.com]

Earlier: NCBE Prez Issues Threat To Tie Up Licenses Of Bar Exam Critics
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
Bar Exams In The Time Of COVID: Crashes, Hacks, And (A Few) Masks

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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