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This article originally appeared in The Bar Examiner print edition, Fall 2020 (Vol. 89, No. 1), pp. 6–9. By Judith A. Gundersen2020: The Year of the Pandemic

When I wrote my last column, “2010–2020: A Look Back and a Preview of What’s Ahead,” little did I know what really lay in store for 2020. Where should I even begin this column, which is meant to succinctly summarize developments over the past several months and preview what’s next? It would take an entire issue of the Bar Examiner to recount everything we’ve done and learned in an effort to continue to meet the needs of Courts and admissions offices to license lawyers during the pandemic—and an entire other issue devoted to exploring the medium- and long-term changes to lawyer licensure in the age of COVID-19. So, this column will be a simple recounting of how NCBE, along with admission authorities, adapted to offer licensing opportunities for the class of 2020, who by all rights deserved better than to graduate during a pandemic.

To all the admissions staff, bar examiners, and judges and justices, we thank you for your support and collaboration. If we thought that our collective job of helping to license lawyers was at times challenging before the COVID-19 crisis, the current situation has certainly put any pre-COVID challenges in perspective. I am proud of our team, which continued to work through the chaos unleashed by the virus to put forth options that balance public protection and examinee safety.

Any reflection on 2020 would be incomplete without acknowledging the real struggles that Black people and other people of color have had and continue to have in all aspects of American life, from limited housing options and educational opportunities, to being subjected to violence—to name just a few. On behalf of NCBE and our Board of Trustees, and on my own personal behalf, I reiterate that we are committed to a diverse profession that serves society to better ensure justice, peace, and freedom for every American.

So, here begins the story of 2020 from a bar examining perspective.

Two Additional In-Person Exams

Beginning in March, when little was known about how COVID-19 would play out, how to curb its spread (remember when face masks were not universally endorsed by health authorities?), and what national strategy might emerge in fighting the virus, NCBE staff members mobilized to provide licensing opportunities for 2020 graduates in the event the traditional July bar exam date and manner of administration might not be possible.

We started with a basic principle: ask what your stakeholders need. We polled jurisdictions to find out what alternative dates might work to administer the bar exam in the fall. This proved to be the first (and in retrospect, the easiest!) of the many difficulties we’d collectively face going forward. It was not possible to settle on a single exam date. So our staff knew we would need to work even harder by offering two additional exam dates: September 9–10 and September 30–October 1.

When we announced in early April that we were making these two additional exam dates available, several jurisdictions began moving to one of these two administrations. (See this issue’s special section, “COVID-19 and the July 2020 Bar Exam,” for a progression of maps illustrating the shift from the July to the September/October exams over time.) Some jurisdictions, to comply with state and local health and safety orders and to allow as many candidates as possible to sit for an exam, offered two administrations—one in July and one in September/October.

An Emergency Remote Testing Option

Later in the spring, after consultation and study, NCBE offered a limited set of questions (MBE, MEE, and MPT) to jurisdictions for an emergency remote testing option for local admission in case an in-person bar exam would not be possible at all due to health and safety orders in place. Shortly after we publicly announced this development on June 1, jurisdictions began to select the October 5–6 remote option in lieu of an in-person exam.

As new coronavirus cases surged in some jurisdictions in late June and throughout July, several jurisdictions canceled their in-person September/October exams and moved to the remote option—20 altogether, 4 of which also decided to keep an in-person option.

The final tally on the “July” 2020 bar exam shows that the October remote option will have been the most used option, providing roughly 30,000 candidates with the ability to become licensed in 2020. There were also five jurisdictions that crafted and administered their own remote exams in July, August, or October.

Additional Emergency Measures Taken by Jurisdictions

The many difficult decisions jurisdictions faced during the pandemic extended beyond the administration of the exam itself, sometimes involving additional emergency measures. Five jurisdictions enacted emergency diploma privilege paths to licensure—all of them limiting diploma privilege to graduates of ABA-accredited law schools, with one tying qualification to schools that demonstrated an overall first-time passage rate of 86% or greater. Over the course of the pandemic, many courts received petitions for diploma privilege, whether from law school deans, graduates, or both, with some receiving multiple petitions. The response in these jurisdictions has overwhelmingly been to deny diploma privilege.

Additional measures revolved around expanding or adopting supervised practice rules in an effort to give the 2020 graduates who were unable to get their permanent licenses an opportunity to find employment in the meantime. Thirty-one jurisdictions took such measures to assist recent graduates during the pandemic (see the map).

Bar Exam and MPRE Results

As I write this, almost all of the 23 jurisdictions that administered the July exam, representing roughly 5,600 examinees (about 12% of the usual number of July examinees) have reported their pass/fail results. Most of these jurisdictions will see an increase in pass rates. (For a list of pass rates as they are announced by jurisdiction, visit our website at www.ncbex.org/statistics-and-research/bar-exam-results.) This cohort of examinees who took the exam in person scored a record high MBE mean. Because the cohort is so small, it’s hard to read too much into this high level of performance. But we do know that the July group had a higher percentage of first-time takers, who consistently achieve higher scores (as a group) than repeat test takers, so that was likely a factor.

Of the eight jurisdictions that administered an in-person bar exam on September 9–10, the results were more of a mixed bag. The MBE mean was up over the July 2019 mean, but again, this is not an apt comparison because the September group was even smaller than the July cohort—roughly 1,800 examinees.

MPRE results from August were way up too, for the 26% smaller group than the one that tested in August 2019. The August MPRE mean of 98.6 was the highest mean score for an August administration since 2000. Because of the pandemic, NCBE permitted any examinee who wished to cancel to do so, at no cost, which we are continuing to allow for the October MPRE administration.

The final in-person bar exam, administered by five jurisdictions on September 30–October 1 to roughly 400 examinees, showed a decrease in the MBE mean over the July 2019 mean; again, this is not an apt comparison because of the very small size of the October group. Results of the remote exam administered on October 5–6 by 20 jurisdictions to roughly 30,000 examinees—by far the biggest exam administered during the pandemic—are still to come as of the writing of this column. Although we will not be reporting MBE mean score data for the October remote exam, since that exam will be scored by the individual jurisdictions that administered it, we will report pass rates on our website at www.ncbex.org/statistics-and-research/bar-exam-results/ as they are announced by the jurisdictions.

Working Together and Looking to the Future

Together, Courts, admission boards, and NCBE offered examinees multiple options to be licensed during the pandemic while allowing for flexibility to take into account local health conditions. All along the way, NCBE has tried to be proactive, service-oriented, responsive, and true to our mission and vision. NCBE staff members have maintained open and frequent communication with admissions offices, as well as with law school deans and examinees. Behind the scenes, our staff members worked hard to provide educational opportunities and facilitate coordination and communication among admissions offices, as well as to create and produce the test materials needed for three additional exam dates. The volunteer members of our drafting committees also put in considerable effort to ensure that high-quality test content was ready for these additional administrations.

In mid-October, in anticipation of continued challenges posed by the pandemic in the coming months, NCBE announced initial plans that will allow jurisdictions the option to provide the bar exam remotely in February 2021. We will make a full set of bar exam materials available for a remote administration in February 2021 to be held on the same dates as the in-person administration, with scores earned on the remote exam qualifying as UBE scores. NCBE plans to equate the MBE, calculate scaled scores for the written components, and provide UBE and MBE score transfer services for both the in-person and the remote administrations. Each jurisdiction will select which mode it will use for its administration. In this way, NCBE is providing flexibility to jurisdictions and candidates as we all continue to navigate the challenges of the COVID-19 pandemic. Within days of our announcement, seven jurisdictions announced that they would administer the remote exam in February.

But does the public even think its would-be lawyers should pass a licensing exam during a pandemic? We sincerely wanted to know, as there was a lot of press surrounding diploma privilege petitions and the very difficult position that law grads found themselves in due to the pandemic. We worked with a national polling firm to find out.

The results of the poll showed that four in five Americans want lawyers to have passed a licensing exam, whether it be in person (60%) or allowing for online or other remote testing (19%). (The poll is briefly covered in this news item; full details are available on our website at www.ncbex.org/news/national-survey-bar-exam.)

The law is in step with other US professions, which all require a licensing exam. And law is not the only profession experiencing disruption in the path to licensure as a result of the pandemic. Nursing, medical, and engineering exams were all delayed. Law is, however, the only profession in the United States of which we are aware that has offered a remote testing option for examinees. Most professional licensure exams are conducted at professional test centers, such as Pearson VUE (where we administer the MPRE) and Prometric centers, which were initially closed by the pandemic. Some professional licensure programs are slowly getting back on track as test centers re-open, albeit at reduced capacity.

There are other options for test delivery, which we have been exploring and continue to explore as part of the work of our Testing Task Force. (An update on the Task Force’s work can be found here.) Of course, the Testing Task Force is doing more than looking at test delivery. In June and July, the Test Blueprint Committee met to discuss exam content, and the Test Development Committee met to discuss how to test that content. These committees—composed of volunteer bar admissions staff members, law school faculty, newly licensed lawyers, and judges and justices—have put forth good ideas and options based in large part upon our stakeholder surveys conducted in 2018 and our 2019 practice analysis. The work of our Testing Task Force is forging ahead, and it will be informed by the experiences of the past few months. To those who have argued for alternative licensure paths, I encourage you to better understand NCBE’s role and the history of licensure, and how that supports what is best for the public. And to those bar admissions staff members, law school faculty, newly licensed lawyers, and judges and justices, we thank you very much for participating in the work of our Task Force and contributing to the bar exam of the future. Your input and insight are critical.

As we look to the future, NCBE remains committed to a diverse profession and fair testing as part of our mission. We will continue to use the Bar Examiner as a forum for education and outreach. For example, with this issue, we are launching the first in a series of articles on diversity. The inaugural article is written by Judge Phyllis Thompson of the District of Columbia Court of Appeals, who also serves on NCBE’s Board of Trustees. We have also recommitted to working with the Council on Legal Education Opportunity to increase diversity and inclusion in the legal profession (see the news item).

Finally, I wish to offer my heartfelt thank-you to our outgoing NCBE Board chair, Hon. Cindy Martin of the Missouri Court of Appeals. Without her leadership and hard work, especially on the Testing Task Force, I don’t know where we would be. And for me personally, she has been and continues to be a dear and trusted colleague and friend. We also warmly welcome our new chair, Hulett (Bucky) Askew, who has worn more hats in legal education and admissions than anyone I know. To list just a few over his decades-long career: Consultant on Legal Education of the American Bar Association (2006–2012); director of the Office of Bar Admissions of the Supreme Court of Georgia (1990–2006), during which he concurrently served as executive director of the Chief Justice’s Commission on Professionalism (1990–1996); and former member of the Council of the ABA Section of Legal Education and Admissions to the Bar and six years of service on the Section’s Accreditation Committee.

To the Courts and admission boards that NCBE serves: we look forward to working with you in 2021 toward licensure paths that maintain public confidence in the profession we all serve.

Until the next issue,
Signature of Judith A. Gundersen