The Testing Column: Cheating on the Bar Exam: Consequences, Challenges, and Responses

This article originally appeared in The Bar Examiner print edition, Winter 2022–2023 (Vol. 91, No. 4), pp. 24–27.By Susan Baek

A recent Reddit post titled, “I cheated on the bar exam, will they find out?” attracted significant attention on social media (and led to an article on Law.com).1 Who would make such an admission, and why would they leave so many breadcrumbs leading back to their identity? “I went to UIC John Marshall for law school and I cheated on the Illinois bar exam which I took in Chicago,” they wrote, before adding: “I did pass the exam (after failing the last two times).”

Maybe the post was a hoax or a ham-handed attempt to expose a colleague, or maybe this person did indeed cheat, and guilt led them to admit to doing so. Whatever prompted the post, the incident is a useful reminder that people do attempt to cheat on the bar exam. Fortunately, jurisdictions and NCBE have tools in place to thwart this behavior and support the jurisdictions after the fact.

Cheating and Its Consequences

In a 2017 study of 300 college students, researchers found that cheating is endemic in higher education: 86% of students surveyed admitted to cheating in some way in school, 54% stated that cheating was okay; and 97% of those who admitted to cheating claim never to have been caught.2 And though research indicates that the older the student, the less likely they are to cheat,3 a 2006 study found that 45% of law students admitted to academic dishonesty.4

It is thus perhaps unsurprising that examinees also attempt to cheat on the bar exam despite the severe consequences when caught—consequences that also reflect on the integrity of the profession. The District Court of the Southern District of Ohio, for example, stated that “law students who cheat on examinations are both academically and morally unfit for the practice of law.”5 Law professors Lori A. Roberts and Monica M. Todd highlight the broader impact of cheating by law students, writing: “While problematic in all educational contexts, the implications of [the] erosion of academic integrity have particularly profound consequences in law school, given that law schools prepare students for a profession regulated by high ethical standards via a code of professional conduct.”6 And as a Twitter user commented in response to the aforementioned Reddit post, “You are not fit to practice law and you should absolutely inform them [the board of admissions to the bar] of this conduct and suffer the consequences of deceit. You shame our entire profession and I am embarrassed you went to my school.”7

Given the high moral standards expected of the legal profession, it is especially important for bar admission authorities to adhere to strong protocols and procedures for thwarting cheating behavior. According to James A. Wollack, PhD, and Mark A. Albanese, PhD, “Cheating is not a victimless crime. It gives an unfair advantage to the examinees who cheat and undermines the legitimacy of all examinees’ scores.”8 

Beyond Cheating for Individual Benefit

Cheating extends beyond an examinee doing so for their own benefit. Cheating also occurs on a broader level where an examinee harvests, whether by recording or memorizing, exam content to share with others, sometimes for money. Ethics aside, this type of cheating also undermines exam integrity and the legitimacy of examinees’ scores. A recent case illustrates the severity of such an infraction.

In 2022, owners of a Florida teacher certification exam preparation company were sentenced to 10 months and 4 months in federal prison, respectively, plus 6 months of home confinement, after pleading guilty in 2021 for stealing test content from the Florida Teacher Certification Exams and the Florida Educational Leadership Exam and including the stolen content in the test preparation materials their business sold. The owners, both certified Florida teachers, had stolen test content by repeatedly taking the exams to harvest questions, and then directed their employees and others do the same. They had been doing so from 2016 until their arrest in December 2020.9

According to a statement by the US Attorney for the Northern District of Florida,

The defendants’ profiteering scheme is an insult to the dedicated public school teachers and administrators of Florida, who studied and worked hard to become certified in their professions. Floridians expect and deserve to know that the public schools to which they entrust their children to learn are being led by teachers and administrators who properly earned their certifications. Today’s sentence reiterates a valuable, but basic lesson. Notably, that hard work and diligence are rewarded, but acts of theft and dishonesty, as demonstrated by these defendants, are to be punished.10

Remote Exams Pose Added Challenges

Remote exams, which gained significant traction during the early months of the COVID-19 pandemic, bring unique challenges, including the perception that it is easier or more acceptable to cheat on a remote exam than on one given in person. As Kwame Anthony Appiah posits in the title of his April 2020 New York Times Magazine article, “If My Classmates Are Going to Cheat on an Online Exam, Why Can’t I?”11

A few months ago, the Financial Industry Regulatory Authority (FINRA), which develops and administers a range of licensing exams for the financial services sector, including the Series 6 and Series 7 exams, announced it had barred two individuals from the securities industry who it had caught cheating during its online examinations.12 This was FINRA’s first enforcement action due to cheating on a remote exam, but experience suggests that it will not be the last—multiple reports of cheating have cropped up since many organizations took their exams remote in the COVID-19 pandemic’s early stages.13

Even though remote exams are typically recorded for later review and/or remotely monitored by proctors, determined examinees have sought to find ways around these safeguards. In August 2020, relatively early in the pandemic-driven move to remote testing, the Washington Post reported that Proctor U, one of several remote proctoring services, found an approximately eight-point jump in detected cheating incidents between January to March and April to June of that year, coinciding with the large-scale move to remote testing at the start of the pandemic.14 And privacy issues can arise with remote proctoring; a 2022 federal district court decision in Ogletree v. Cleveland State University raises concerns about whether remote recording or proctoring violates examinees’ Fourth Amendment rights against unreasonable search.15

Cheating Prevention and Detection

Given everything we know about the problems of cheating on the bar exam, how can we prevent cheating in the first place or detect it if it nevertheless occurs?

In-person proctoring provides the best opportunity to deter and, if necessary, detect cheating as it happens. According to Wollack and Albanese, “Examinees are discouraged from cheating if they are aware that proctors are actively monitoring them for signs of cheating and that the penalties for cheating are severe.”16 In particular, they note, “It is the ability of proctors to detect unusual examinee behavior that is both the best deterrent to cheating and the best method of detection. Examinees who feel that they are being carefully watched are less likely to risk being caught…. It is very important to have enough proctors available to adequately monitor the testing room(s) and restrooms.”17 Bar exam proctors should be familiar with test security and administration procedures, and they should be trained to look for suspicious behavior and for prohibited items that may have made it past check-in.

In addition to arranging for an adequate number of proctors, test supervisors play a critical role in thwarting cheating behavior. They do so by securing test materials before, during, and after administration, and following procedures such as ensuring that testing rooms are set up appropriately and that seat assignments are randomized; conducting a complete check-in for all examinees that includes verification of photo IDs and confiscation of any prohibited items; and ensuring that no test content, whether original or reconstructed, is removed from the testing room.18

Following the exam, jurisdictions evaluate their own reports of cheating and communicate with NCBE about any issues they’ve encountered. In the event of suspected cheating, and upon the jurisdiction’s request, NCBE can conduct a statistical answer sheet comparison for the MBE portion of the administration. The degree of similarity between responses is then provided along with some benchmark data. This statistical analysis may become particularly useful when there are reasons to question the validity of a score. NCBE will also assist with the embargo process to prevent scores from being transferred to other jurisdictions or released to examinees when cheating incidents have been suspected or observed, or when validity of individual scores has been questioned.

Conclusion

NCBE is committed to protecting the integrity of the bar examination and providing ongoing support to ensure that the exam is administered securely, fairly, and consistently by each participating jurisdiction. We also continue to provide relevant, up-to-date resources to jurisdictions to help ensure each exam administration’s security.

Some examinees are likely to continue to attempt to cheat on the bar exam. It is jurisdictions’ diligent continued efforts, however, that thwart such behavior. For a successful bar exam administration, all staff and proctors must be well trained in test security and administration procedures. Doing so protects the integrity of the examination, thereby ensuring fairness to all examinees.

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