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Law360 (October 22, 2020, 7:00 PM EDT) -- The New York bar exam will remain online when it's offered in February 2021, the state's Court of Appeals announced Thursday, saying the COVID-19 pandemic has "not abated sufficiently" to guarantee a safe in-person test.
The move comes amid growing scrutiny nationwide over remote exams and whether they place damaging barriers to success for certain groups. Some exam takers have voiced frustrations over the technology used for the tests, leading to calls for recent grads to be allowed to practice law without completing them.
The New York State Court of Appeals, however, said in a statement that a preliminary review of the state's early October bar exam showed its administration was "very successful." Of the 5,167 state bar applicants who downloaded the software for the test, just 17 failed to complete it, the court said.
"Although the court originally anticipated that a remote exam would be administered on a one-time basis, the threat posed by the pandemic has not abated sufficiently to permit the board to safely conduct in-person testing of large numbers of bar applicants in New York, and it is therefore necessary to again consider a remote option," the court said, noting that a final decision was reached in consultation with the Board of Law Examiners and at the urging of state law schools.
The court added that the move followed a National Conference of Bar Examiners announcement requiring states to select either an in-person or remote exam format for February. The Board of Law Examiners is expected to release eligibility criteria and registration processes for the February exam soon, the court said.
Connecticut and Maryland have also announced their intention to hold the February exam remotely.
Bar exams are normally administered to thousands of law school graduates in February and July each year. However, the coronavirus pandemic upended plans for the summer test. New York initially postponed the test to September, before delaying it again and holding it virtually in October along with several other states. A total of 38,000 people took the bar exam between July and October, according to NCBE, the organization overseeing test administration.
Opinions appear to be divided on how smoothly the exams went. Two New York state legislators last week released results from a "snapshot" survey they said showed an alternate pathway for attorney admission is warranted. Of the 471 New York test-takers polled, about 75% described their exam experience as negative and 40% said they ran into internet or software disruptions.
"Law school grads deserve better, and that starts with alternative pathways to licensure" during the pandemic, Democratic Assembly Member Jo Anne Simon, who performed the survey with Democratic state Sen. Brad Hoylman, said in a statement.
The New York Court of Appeals earlier this year enacted rules allowing recent law school grads to participate in so-called temporary authorization programs in which they may practice law under the supervision of a New York-licensed attorney.
Hoylman, the state Senate's judiciary chair, in July introduced legislation that would provide 2020 graduates with temporary diploma privilege. He co-introduced another bill allowing New York public defender and government law graduates who have failed the bar exam twice to practice under supervision during the health crisis. Both bills are currently at the committee level.
"The New York Court of Appeals ought to implement diploma privilege in New York until it's safe to have an in-person bar exam again," Hoylman said in a statement to Law360. "That would be the most equitable solution. The [October] exam was a mess for many and a disaster for disabled and immunocompromised students."
Some worry that the online bar exam will have a disproportionate impact on racial minorities and persons with disabilities. Those concerns prompted a band of civil rights and disability groups to send a letter to the Conference of Chief Justices urging them to endorse temporary diploma privilege amid the pandemic. In California, persons with disabilities have taken their fight to court.
"At a time when our country is dealing with an economic recession disproportionately impacting communities of color and other underrepresented groups, the legal profession must consider how bar examination processes during the pandemic may exacerbate existing and long-standing inequities in our legal profession," the letter says.
Louisiana, Oregon, Utah and Washington are among the states to institute emergency diploma privilege this year.
--Additional reporting by Aebra Coe, Emma Whitford and Rachel Stone. Editing by Stephen Berg.
Update: This story has been updated to reflect new comments from Hoylman.
For a reprint of this article, please contact reprints@law360.com.
