Posted by Post Authored By: Stephanie Nikitenko
Due to the dynamic situation and rapid adjustments needed in order to make the October bar exam feasible for examinees, there have been numerous changes since the writing of this article. Please read the linked “further reading” articles and sources to stay up to date with the fast-past changes to this exam. Thank you very much for your understanding.
Earlier during the pandemic, I discussed the impact of COVID-19 on law students regarding classes and graduation, and I briefly touched on the topic of the bar exam. However, since the bar exam has been so immensely impacted, I believed it merited additional attention. I am only sitting for the bar exam in Illinois, but every state and every bar examinee has been impacted by this in some way, and I think it’s necessary to shed light on what has been going on.
This article is meant to serve as a snapshot of the current situation. It is by no-means exhaustive or all-encompassing. I will list some additional reading on the subject at the bottom, and I encourage you to take a look at those sources as well as the sources I list in my citations.
An Extended Timeline
Let’s start with the most obvious effect that COVID-19 has had on the Illinois bar exam – the timeline. The original bar exam was scheduled for the end of July 2020. Thereafter, it was pushed to September 2020, and now the plan is for an abbreviated exam in October 2020. The extra time to study may sound like a gift, but in reality, examinees are suffering from this deferred timeline in a multitude of ways. They have had their study schedules interrupted twice now and have had to reconfigure those study schedules accordingly; some have had to return to work because they realistically never imagined having to take such an extended leave of absence; some have had job offers rescinded, and much more. Amid all this chaos, many examinees have voiced their understandable discontent with the situation and have been met with the same resounding response of “just keep your head down and study.”
Studying for the bar exam for two months is ordinarily a lot to handle. But now, by the time the exam rolls around this October, examinees will have been studying for the bar exam for five months straight dragging out the inevitable period of stress and anxiety that runs alongside this process. Not to mention in the middle of a pandemic.
The Method: In-Person vs. Remote vs. Open Book
Up until early July, examinees were under the impression that the Illinois bar exam would be held in-person in September. Later in July, examinees were informed that the exam would be held remotely in October. Several other jurisdictions have adopted a remote format. An alternative solution, adopted by Indiana for example, is an open book method, where the exam questions are emailed to the jurisdiction’s examinees and returned via email.
Illinois examinees were initially concerned about an in-person exam due to issues with capacity at testing locations, sanitization procedures, appropriate distancing measures, and having to make the decision to potentially jeopardize their personal health in pursuit of licensure. Illinois solved this problem by adopting a remote exam. However, there are, of course, a slew of issues surrounding a remote administration of the bar exam.
What is Illinois Doing, and Why are so many Illinois Bar Examinees Concerned?
Illinois is using ILG Technologies’ ILG Exam 360 software, which was being used for the essay and MPT portion of the exam during the in-person exams. When Illinois shifted to a remote exam, the state chose to stay with the ILG Technologies software.
As stipulated by the NCBE, for jurisdictions to gain access to their testing materials, specifically for the abbreviated test being administered in October, jurisdictions had to sign a Memorandum of Understanding (“MOU”) with the NCBE. [1] The NCBE does not give Illinois the testing materials directly, but instead gives the materials to the software vendor. The vendors then load the materials into the exam software, where it will appear for examinees. Only the states that have created their own exams would be able to modify the exam materials or dictate an alternate testing date.
The only way Illinois has access to the materials is if they agree to the MOU, which has been found to be fairly restrictive. The MOU dictates that the bar exam will be administered on October 5-6, meaning that even if Illinois wanted to postpone or change the date the state is not able to do so. The agreement sets out the date as well as the synchronous nature of the exam across all jurisdictions participating in the MOU agreement. The MOU also prohibits Illinois from holding an open note exam and disallows examinees from using physical scratch paper. There is an additional provision that prohibits any recording devices, which raises the concern that should there be a technical issue with the software, examinees would not have access to their cell phones.
Ultimately, the software companies, including ILG Technologies, have been asked to do a lot in a short amount of time. They need to be able to verify IDs before exam sessions begin (another requirement by the NCBE MOU), they need to have a live proctoring session with either real people or AI (the concerns here being bias and discriminatory impact), and they also had to add multiple choice functionality with the ability to physically display those questions on screen during the exam instead of utilizing the usual physical paper booklet. These software add-ons have understandably led to issues with lag and loading questions, problems with readability, and there have even been reports of overheating laptops.
There are an estimated 30,000 people taking the remote bar exam this October. [2] One software provider, Extegrity, dropped out and issued a statement on Twitter stating that they do not think a remote bar exam is possible and carries undue risk. [3] Therefore, only two providers, ILG Technologies and Examsoft, are carrying the weight to administer an exam to those 30,000 examinees.
As a result, it is no surprise that there have been concerns about alleged privacy and data breach claims, as well as concerns regarding the overall functionality of a remote exam (i.e. technical difficulties). Additional concerns involve inequities for those taking it. For instance, Illinois just recently experienced an intense storm with powerful winds that left many people without power for several days, and not every household has perfectly reliable internet all the time. Consequently, many examinees are concerned about the stability of their home networks. Some alternate locations, including UIC John Marshall Law School in Chicago, have been offered as potential test-taking sites for examinees, but that raises the question of travel, public transit, and potential usage of ride-share services in the middle of the pandemic.
Another relevant issue pertains to reciprocity for this year’s bar exam. The Illinois Board of Admissions to the Bar (“IBAB”) recently announced reciprocity agreements with the following states: Connecticut, District of Columbia, Kentucky, Maryland, Massachusetts, New Hampshire, New Jersey, Ohio, Oregon, Tennessee, and Vermont. [4] While this is more than examinees initially expected, it is still a distinct downgrade from the larger reciprocity agreement across the usual 33 UBE states.
The Push for Diploma Privilege
Due to the multitude of concerns regarding the remote testing option, there has been a collective push in jurisdictions across the nation to advocate for the option of diploma privilege. There was an initial petition for diploma privilege in Illinois that was denied by the Illinois Supreme Court (see Further Reading), but the movement has continued with additional petitions and advocacy because many examinees view diploma privilege as one of the only practical solutions at this point. [I encourage you to read the initial diploma privilege petition in light of current circumstances to understand the position of current examinees who are advocating for diploma privilege]
Conclusion
In addition to the above, examinees sitting for the Illinois bar in October are also battling the COVID-19 job market. There are very few entry-level positions listed on sites like LinkedIn and LawCrossing and local governments are attempting to handle budget crises while many firms are dealing with financial instability. I have had several attorneys tell me that this is the worst job market for the legal industry that they have seen since 2008.
For graduates, the period between graduation and passing the bar exam is financially challenging in years that are not fraught with economic depressions or pandemics. With the current economic situation looking so dire, it is understandable that examinees want to take the exam as soon as possible or pursue some other avenue to advance the licensing process so that they can secure income for themselves and their families.
Examinees were perfectly content with taking the bar exam back in July, and they are perfectly content with taking the bar exam now. What examinees are demanding, however, is a reasonable administration of the exam with reliable software, or an alternative path to expedited licensure. Either way, examinees simply want to obtain their licenses to practice.
Further Reading
A Google Drive link to a folder containing the original petition for diploma privilege to the Illinois Supreme Court, IBAB’s response to the petition, the Illinois Supreme Court’s response to the petition, and the letter from the nine Illinois law school deans to the Illinois Supreme Court asking for a remote exam: https://drive.google.com/file/d/1thdGGtCyWNz91tnxosOkyNMYibHPcPFS/view?usp=sharing
August 16, 2020 Florida bar exam postponement announcement: https://www.floridabarexam.org/static/20200816PressRelease.pdf
Account of software failure – Michigan Bar Exam: https://today.westlaw.com/Document/Ie9c716a0d10211eaa3a28f042ed703c3/View/FullText.html?transitionType=SearchItem&contextData=(sc.Default)
Account of software failure – Indiana Bar Exam: https://abovethelaw.com/2020/07/online-bar-exam-software-still-not-working-on-friday-test-on-tuesday-indiana/
An article explaining why the delay of the bar exam is particularly detrimental to recent graduates: https://abaforlawstudents.com/2020/04/10/why-a-delayed-bar-exam-is-a-financial-and-legal-disaster/
NCBE bar exam information (table form, broken out by date of exam): https://www.ncbex.org/ncbe-covid-19-updates/july-2020-bar-exam-jurisdiction-information/status-table/
NCBE bar exam information (map and chart, broken out by jurisdiction): https://www.ncbex.org/ncbe-covid-19-updates/july-2020-bar-exam-jurisdiction-information/
Sources
[1] @BarExamTracker, Twitter (July 2020), https://twitter.com/BarExamTracker/status/1284582065036496896?s=20 (NCBE MOU Information).
[2] Karen Sloan, ‘I Understand the Anxiety and the Anger,’ Says Top Bar Exam Official, Law.com (Aug. 13, 2020), https://www.law.com/2020/08/13/i-understand-the-anxiety-and-the-anger-says-top-bar-exam-official/?fbclid=IwAR2qMslJ19Db_k6fnORR_nRYt-eq4HXkhuAm006G1pEoR5xN0z8SltbriUA
[3] @BarExamTracker, Twitter (Aug. 2020), https://twitter.com/BarExamTracker/status/1291478960916791296?s=20 (Extegrity Twitter Announcement); Thomas DeLorenzo, Bar exam proctoring company pulls out of remote bar exam administrations scheduled for October, Jurist (Aug. 7, 2020), https://www.jurist.org/news/2020/08/bar-exam-proctoring-company-pulls-out-of-remote-bar-exam-administrations-scheduled-for-october/
[4] Reciprocity Announcement, Illinois Board of Admissions to the Bar (Aug. 2020), https://www.ilbaradmissions.org/allnews.action#:~:text=RECIPROCITY%20ANNOUNCEMENT&text=Note%20that%20if%20you%20choose,score%20or%20any%20other%20exam.
About the Author:
Stephanie Nikitenko recently graduated from UIC John Marshall Law School in Chicago. At UIC John Marshall, she served as the President of the Intellectual Property Law Society (IPLS) and primarily concentrates her studies on the subject of Intellectual Property. She also spent a semester working in the JMLS Trademark Clinic where she assisted clients with the Trademark Registration process with the USPTO. Additionally, under the supervision of an attorney, she currently assists a law firm with both their trademark and patent matters.