It’s become clear that the COVID-19 pandemic isn’t going anywhere – and until there is a vaccine or herd immunity, it will continue to influence all aspects of our lives, including how we teach, test, and learn.
This semester, law schools have adapted their curriculum to be fully online or hybrid (a combination of in-person and online classes) to reduce the risk of spreading the virus. This includes using web conferencing platforms and creating new digital course content. Schools have migrated to digital testing platforms to assess students, while the bar exam has been rescheduled from the summer to the fall and is being offered online in some jurisdictions. Technology is enabling us to move forward as we figure out our new normal.
But which of these adaptations will stick post-COVID? And which changes will benefit legal education? A close look at the changes California has implemented may provide insight. As Jimmy Carter said, “Whatever starts in California unfortunately has an inclination to spread.”
First, let’s explore the migration from in-person to online classes. The ABA temporarily suspended limits on online learning due to the coronavirus pandemic, which generally restricted law schools to being no more than one-third online. Many ABA-accredited schools got a taste of online learning in the spring, but that abrupt transition was not the best first impression. When those schools realized they would have to deliver their 2020/2021 academic year online, they tried to figure out how to train their faculty to encourage the use of educational design theory in developing online courses and promoting active learning – which is very different from recording a three-hour lecture and posting it on a learning management system.
California has been allowing fully online law schools to operate as registered unaccredited schools, and letting their grads sit for the bar, for more than 20 years. That’s because it is one of the only states that provides for non-ABA approved accreditation. For example, Concord Law School at Purdue University Global, which was the nation’s first fully online law school was granted full accreditation by the State Bar of California this summer. While it might not be directly related to COVID-19 (the accreditation process started in July of 2019), they were the first school to have the inspection site visit conducted entirely remotely in March 2020 during the height of the pandemic. Regardless of the motivation, it makes a powerful statement about online learning, that a law school accrediting body would accredit a fully online school. As law schools adjust to the changes imposed by the pandemic, lessons can be learned from law schools that were already delivering successful online education.
One of the key benefits of online education is its accessibility and affordability. Students can access their classes from anywhere, at more convenient times for people who are juggling jobs and families, and from a variety of devices (laptop, tablet, or phone). About 75 percent of ABA law grads go directly into private practice whereas the bulk of CA Accredited law grads are working professionals looking to switch careers or enhance their existing careers. They are spending 40-50 hours per week on work and dependent care in addition to their studies which sets them apart even from many part-time students at traditional ABA law schools. ABA Accredited schools feature full-time tenure-track professors who do not need a law license to teach.. Law professors at CA Accredited law schools are typically local attorneys and judges and while they are not tenured, may also be full-time faculty. One year at an ABA Accredited law school costs about the same as two or three years at a CA Accredited law school. Since the economics are different, the expectation is that we will start to close the access to justice gap. That is the aim for Concord Law School, whose mission is to make high-quality legal education affordable and accessible by delivering it fully online. Martin Pritikin, Dean of Concord Law School, believes that technology is essential to scale access to justice innovations. If students don’t have the financial burden of paying back massive student loans, they will be able to choose mission-driven employment.
Lower costs are great but only if the quality remains high. Today, the main measure we use for whether a law school education was successful is whether a student can pass the bar exam. In California there is no minimum bar passage requirement for the Registered Unaccredited law schools but students must pass the First Year Law Student Exam. CA Accredited schools must maintain a minimum 5-year cumulative bar passage rate of 40 percent or more. ABA Accredited law schools have the strictest requirement set at 75 percent of all students passing within 2 years of graduation.
California’s bar exam has been considered the hardest in the nation with the highest cut score. An unintended consequence of this rigor was a large proportion of California bar applicants failing the exam with scores that would qualify them to practice in other states like New York, Texas, Pennsylvania, and Illinois. Test-takers who fail the bar exam often lose job offers and go deeper in debt waiting to take the test again. This has been shown to have a discriminatory impact on aspiring lawyers of color. A higher percentage of minority test-takers would benefit if the cut score were lowered to be more in line with other states. Forty percent of California’s population is white, 60 percent are people of color. But 68 percent of California lawyers are white, and only 32 percent are people of color, according to a new report by the State Bar of California. This summer, the state finally lowered the cut score from 1440 to 1390, making it still one of the nation’s toughest exams to pass.
The pandemic also called into question the safety of thousands of graduates sitting together in a building the size of an airplane hangar to take the two-day test. Consequently, the California Bar cancelled its in-person July bar exam and announced planning for a remote bar exam to be delivered on October 5th and 6th. California also agreed to a provisional licensing program for 2020 for law school graduates who had yet to sit for the exam. The program would allow them a limited right to practice law under the supervision of a licensed attorney. It will serve as a stopgap measure for law school graduates who haven’t yet passed a bar exam but who wish to practice until the program ends in June 2022. They must refer to themselves as a provisionally licensed attorney, and in order to remain licensed, participants will need to pass the bar once the program ends. California declined to adopt a diploma privilege – the ability to be admitted to the bar without having taken the bar exam. For now, Washington DC, Oregon, Washington State, Utah and Louisiana are the only jurisdictions offering a diploma privilege.
The pandemic has accelerated legal professionals’ adoption of technology in the classroom and courtroom. It has driven us to experiment with new pedagogies and business models. Some of these are working well, some have flopped, and others need tweaking to maximize their effectiveness. Regardless, we are wiser as a result of these experiences. As we think about which of these modifications will continue, we can compare online education to telehealth. Telehealth was rarely used before COVID-19. But, during the global pandemic, it was the best solution to provide safe medical advice and treatment to patients. It is not the best solution in all situations, but has been highly effective for behavioral health, medication management, and minor urgent care to name a few. Like online learning, the economics of telehealth are different than in-person care and expected to result in lower overall costs to patients. If there is any silver lining to this epidemic, it is that we are questioning the effectiveness and economics of the traditional legal education model and driving change that will result in better outcomes and lower costs.
