Law Schools

The Online Bar Exam Amounted To Two Days Of Cruel Vindictiveness

The online bar exam may be over, but the damage it wreaked remains.

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(Image via Getty)

The first day of the online bar exam held simultaneously in 19 jurisdictions across the country was an avoidable disaster that highlighted the failures in planning and contempt for the applicants that should — but probably won’t — raise the hackles of state legislatures around the country. With the second day behind us, now we have an opportunity to focus even more on the human toll exacted upon those who did successfully log into the exam.

And in many ways these are the cruelest jabs, because the technical meltdowns were the product of a company trying to honestly perform a task that was beyond the capability of anyone to pull off without serious hitches. What happened after that was intentional.

That is not acceptable. We’d previewed this back in July, when we were calling out in-person exams for their complete disregard of women, and bar examiners huffed and puffed about how unfair we were for calling attention to the anti-woman crucible they’d constructed in convention halls across America. But it turns out you can take the bar exam out of the stadia of misogyny but you can’t take the misogyny out of the bar exam. The people who don’t think hygiene products should be permitted in-person don’t magically improve their worldview when they design online testing experiences. Cecelia took her story public, but statistically she wasn’t the only one impacted this week. Being a woman shouldn’t be an additional hurdle to receiving your license and yet here we are.

Another tipster detailed having to urinate in the middle of the exam with nowhere to go. Earlier this year, we brought you the story of a plucky UK examinee who stared down the proctor while peeing in a bottle. This tipster, contending with fickle facial recognition software rather than a human being, couldn’t afford the luxury of using a bottle. After 20 minutes uncomfortably trying to hold it back, they ultimately decided to give in and then sit in urine for the last 30 minutes of the session.

First of all, this is hardcore. Second of all, this is basically torture. We read about forcing inmates to do this at Abu Gharib with shock and horror, but when it happens to a recent law school graduate because bar examiners can’t envision a licensing process that doesn’t involve petty acts of bodily control, there are people who shrug it off. Remember, when there was credible risk that people could decrypt the exam, bar examiners cited the honor system as the deterrent. If it’s good enough to stop that, it’s probably good enough to protect the integrity of the exam from someone walking out of frame for two minutes in the middle of a session.

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One might have thought that the racial discrimination visited upon applicants — with facial recognition software consistently refusing to verify people of color — had already done all of its damage on the first day, but you’d be wrong. While many applicants discriminated against by bar exams insisting on a proctoring system with well-known problems were already forced to withdraw, others pushed on hoping that their flagged exams will be counted by the backend audit:

Honestly, I supported the online bar exam as a concept. While diploma privilege for this class is the most prudent response, I saw the online exam as at least superior to trying to kill everyone with a superspreader event. But I also naively thought that bar examiners would pull the plug on the idea if they ran into insurmountable roadblocks. Instead, they just pushed on and seemingly patted themselves on the back that their actions only derailed the careers of some applicants.

Nowhere is this mindset more evident than in Florida where they have yet to take the exam, but watched as this week’s exam descended into horror for so many and responded:

Though the board is aware of reports on social media discussing technical issues with ExamSoft in the 20 jurisdictions that utilized Examplify software for testing yesterday, ExamSoft has shared that 98% of all applicants that had downloaded an exam file started their exams as planned. Each jurisdiction testing on October 5-6 will have to reconcile how many of that overall 2% were no-shows (applicants who did not log-in to take the exam on exam day) and how to address those remaining who experienced technical issues.

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In other words:

Two percent is… hundreds of people. It also cherry-picks people who started the exam as opposed to those who encountered trouble later. As we explained yesterday, there are always problems with an endeavor the size of the bar exam, but this process ensured that anyone who encountered a problem suffered catastrophic consequences instead of mere inconvenience. But Florida’s feeling good, y’all!

Finally, we have the questions themselves. Normally we’re reticent to indulge complaints about bar exam questions. Of course they’re irrelevant to the practice of law and constructed to be unnecessarily confusing — that’s the whole point of a generalist exam designed to ensure a set failure rate. But the outpouring of complaints over the exam questions is too great to overlook. The questions on this test — cobbled together by the NCBE and graciously provided to state bars for the online exam even while the NCBE hoarded the “good” questions for jurisdictions that agree to pushing applicants into COVID hotboxes — left many with the impression that the NCBE went out of its way to punish jurisdictions that spurned its in-person exam demands.

Reddit is overflowing with complaints about the questions. And, yes, many focus on the unnecessary hair-splitting — that feeling that at least two of the options are entirely correct answers and boggling at what the distinction might be — but that’s always the case. But this time around, examinees didn’t even recognize subject matter they were studying in these questions.

That’s the thing, it’s not unusally. Yeah, the specific subjects vary but it’s reasonably predictable which is why the bar prep industry exists. Thinking back to my bar exam, I don’t recall feeling confused about a single question. There were definitely questions that seemed poorly written, and designed to produce misleading answers and I might have tripped up on some of those but they were a subset of the exam as a whole and I figured I’d go 50-50 on those and be fine. That doesn’t seem to be the case at all here.

Thankfully, we have a way of verifying that this test was demonstrably more difficult:

But what about the theory that the NCBE intentionally gave the online bar exam worse questions in order to bolster their interest in in-person exams?

It sounds mildly conspiratorial until you remember how ferociously they pushed back against online exams in the first place, going so far as to promise to put out a blog explaining why online exams can never work. Then they just happened to swoop in and offer questions with the understanding that these questions could not be granted the same respect as their UBE? While commissioning polls to lobby state governments to go back to in-person exams? You’re not exactly in QAnon territory to think the NCBE’s heart wasn’t in providing the best experience for examinees.

The only way this gets better though is to hang onto the anger you feel right now. Don’t walk away from this and say, “Well, I passed so I guess I can put that behind me.” Enter this profession prepared to keep advocating for an end to this lunacy. Become the bar association leaders who push back. Become the legislators and state judges who push back. There does need to be a bar to protect the public from unqualified lawyers but keep defiantly declaring that this exam, run by this monopolistic cabal, isn’t the way to do it. Tighten accreditation procedures for law schools, adopt practice area certifications, make demonstrating competence more than a one-time hurdle — there are so many better options out there.

But this thing is dumb and cruel.

Earlier: Like COVID-19, Online Bar Exam Is A Disaster And Was Entirely Preventable
If You’re Menstruating Or Lactating During The Bar Exam You’re Screwed
Law Students Forced To Urinate While Being Watched By Proctors During Remote Ethics Exam
NCBE Touts Poll, ‘See, People Who Don’t Know What A Bar Exam Is Think We Need Bar Exams!!!’

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