Would you want to crowd into a room with hundreds of other people to sit for a two-day exam in the middle of a pandemic? How would you feel if after spending weeks of time and thousands of dollars studying for the next step in your career, an important step was suddenly cancelled – and you had no concrete pathway to move forward with your next job?
For the thousands of recent law school graduates in New York state, that’s been the story of the pandemic – and they’re currently in limbo as officials weigh the safest option to administer the bar exam. Here’s what you need to know.
WHAT IS THE BAR EXAM?
Twice a year, law graduates are allowed to sit for the bar exam, the qualifying test for hopeful lawyers. The exam varies by state. To date, 35 states and jurisdictions use the Uniform Bar Exam, which allows those who pass to practice in other states. Other states, however, have their own individual exam, which allows test-takers to practice law in only one specific state.
Studying for the bar exam is no small feat – and heaps significant extra costs on top of those law school loans. Graduates generally pay for a full study course to help them prepare – which can cost thousands even with discounts – that requires them to study for at least four hours per day, limiting any jobs they might take to support themselves during this period. While many private, high-powered law firms provide stipends for their incoming new employees for bar expenses, grads going into public interest law – which pays much lower than a career in private firms – often have to foot the bill themselves.
And, notably, not every state requires graduates to pass an exam at all. Wisconsin allows law school graduates to become lawyers using something called diploma privilege, which allows anyone with a law school degree to practice law.
WHAT’S GOING ON WITH THE TEST?
The pandemic has shaken up bar exam schedules across the country as law boards struggle to find a safe way to administer the test to thousands of recent graduates.
New York has been a particular rollercoaster for this years’ class of hopeful lawyers. In March, the state’s Board of Law Examiners (BOLE) announced that the summer test – traditionally scheduled in July for the Javits Center, which at the time was being converted to a field hospital – would be pushed back to September, throwing a wrench in the plans of the roughly 10,000 people who sit for the exam each year. (We’ve reached out to the BOLE with several questions about their decision for this piece, and will update if they get back to us.)
As the pandemic dragged on and New York slowly reopened – and the pandemic worsened in other states – law students and grads preparing for the exam began to voice their concerns. Many wondered if keeping an in-person exam in place for September was a good idea, and expressed discomfort as they began spending time and money studying for an exam that may not take place. In April, a group of New York law school deans sent a letter to the BOLE asking for temporary authorization for graduates to practice law without the exam; a group of New York law students sent a similar letter days later.
Last Thursday, a day after the deadline for students to submit an application to take the exam – and a day after the refund deadline for exam fees passed – the BOLE cancelled the September exam. The BOLE says it is currently weighing options, including an online exam in October as well as an option for diploma privilege.
Organizers point out that the BOLE has had months to change the September exam, and say the last-minute nature of the decision is worrisome. “At least from a public perspective, it doesn’t seem like [the BOLE has] any kind of backup plan at this point,” Alex Petkanas, a lawyer and organizer in New York, said.
A recent law graduate explained that if the exam is rescheduled for a later date – even online – she’ll have to take additional months off of her upcoming job to study again and take the test. She said she has spent $1,700 in a prep course – which includes her public interest discount – and $250 on flashcards for the exam, and has been studying for four hours each day since May. She estimates that the BOLE is sitting on hundreds of thousands of dollars in exam fees, including the $250 she and the thousands of other hopeful test-takers paid for this year’s exam. (Exam fees can range as high as $1500 in other states.)
“I’m just reeling,” the graduate said. “Currently, I have no way to become a lawyer in 2020.”
WHAT ARE THE SOLUTIONS?
While many think of the bar exam as a no-brainer in making sure lawyers are qualified to practice, critics say that it’s actually an unneeded step. In New York, for instance, 85 percent of test-takers pass the exam the first time, while nearly all takers pass on the second try; the state also requires new lawyers to take other steps, including a responsibility exam and references from supervisors, to be able to practice.
New York is currently the only state to have postponed its exam without announcing what happens next. A variety of other states have either postponed exams, allowed for an online test, scheduled exams for early or late in the fall “only if needed,” and/or allowed for a diploma privilege option. This complex map lays out the exam status in each state.
If the bar exam is eliminated or postponed this year, “it’s not like all these random people are going to become lawyers,” Petkanas said. “It’s just, you don’t have to take this one exam. Most people pass and it doesn’t actually measure like any new fitness to be a lawyer.”
Petkanas passed the bar in February and is now working to set up his own practice working on civil rights and legal services for trans and queer people. “I spent the time to study for this thing and I didn’t learn anything that is relevant or useful to any of the legal work that I have actually done with clients,” he said.
Critics of the exam also say that its formation was actually founded in exclusionary and racist motives meant to gatekeep who gets to be a lawyer, regardless of ability or talent. A 2014 research paper details how the American Bar Association has historically worked to exclude Black people and other minorities from practicing law using the bar exam and other tactics; statistics show that minorities have a lower rate of passing on their first try than white test-takers.
And an online test, Petkanas said, can still be a barrier for lower-income applicants.
“A lot of people’s accessibility needs can’t be met through an online exam,” he said. “And having an online exam is about having a quiet space to take an exam and technology that works and good internet access. It’s not so much about your ability as a lawyer.” (A footnote in materials from the National Conference of Bar Examiners seems to suggest that testers with disabilities may need to take the exam in-person anyway, given the “nonstandard materials” needed to administer the test.)
Diploma privilege – allowing graduates to become lawyers without an exam – is the route that makes the most sense, Petkanas and other organizers say, both in the pandemic and as a whole. “It’s important to note that there are legal scholars who have been writing about diploma privilege for a long time,” Petkanas said. “Diploma privilege already exists in Wisconsin normally. This isn’t a brand new idea.”
Ultimately, organizers say that the pandemic is disrupting a system that deserves to be questioned.
“The bar exam didn’t always exist,” Petkanas said. “It is something that was designed to limit who’s in the profession. And now, we’re saying, why are we doing this at all?”
