Law Schools

As Omicron Spikes, States Roll Dice With In-Person Bar Exams

Leaning into the wave.

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bar-exam-LF-taking-the-barOn Monday, Governor Kathy Hochul told New Yorkers that “we are not in a good place,” when it comes to the coronavirus pandemic. Her state isn’t alone either. Daily new cases are skyrocketing everywhere, and while the death toll continues to weigh heavily in favor of the unvaccinated, mild cases do increase the risk that the virus spreads to someone who can’t get the vaccine. Law schools are moving back online and law firms are pushing reopenings, but bar exams — like the one in Hochul’s state of NY — are full-steam ahead on February in-person exams.

That seems… aggressive.

Make no mistake, online bar exams proved a complete disaster. While it’s easy to blame the ill-conceived technology, the problem ran much deeper. The online bar exam was always doomed to fail because bar examiners remained adamant that they “square-peg-round-hole” the existing closed-book, proctored bar exam experience into an online format. Instead of taking the online debacle as an opportunity to rethink the broken licensing process across the country, examiners took it as validation that the exam can only be administered in person. Which is probably true, but begs the question of why this examination process is necessary in the first place when every independent empirical study suggests it’s a failure as designed.

But with no fundamental reform on the horizon before the February test, bar examiners have to resolve whether or not to go forward in-person when schools and firms are waving red flags.

If there’s a theme to the story of America’s COVID response it’s undeniably “don’t be an asshole.” Scientifically, did we ever really need lockdowns? Maybe not. Did we need lockdowns because we couldn’t rely on people to not be selfish jerks? Absolutely. To that end, could we safely run an in-person bar exam right now? Sure… but we probably shouldn’t.

Like most vaccinated folks, I have no compunctions about going out in public with a mask right now. That said, would I be thrilled to sit for two days straight in a convention hall a few feet from thousands of potentially unvaccinated strangers? Not really.

I say “potentially unvaccinated strangers” because the NY bar exam isn’t limiting the exam to vaccinated applicants, but is letting unvaccinated folks take it as long as they have a 72-hour-old PCR test. It’s not like this virus spreads quickly or anything!

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And that’s NY, which is one of the more responsible examinations. Remember, Texas dropped its mask requirement during the Delta outbreak, so there are states out there willing to go all-in on the bar exam death cult.

Hopefully this outbreak will peak before the bar exam and the administrations — at least those in jurisdictions taking precautions — will go off without a hitch. But that shouldn’t distract us from the more important question of why we’re putting people in this position in the first place.

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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