ABA Urges States To Halt In-Person Exams During Pandemic

By Aebra Coe
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Law360 (August 4, 2020, 5:28 PM EDT) -- State bar admission authorities should cancel all in-person bar exams until the coronavirus pandemic subsides and instead consider other options like online tests or diploma privilege, the American Bar Association said in a resolution passed on Tuesday that met with some opposition.

"Our graduates are in a crisis, and they need us now more than ever before," said Patricia Salkin, a member of the ABA House of Delegates. (iStock.com/smolaw11)

In a 256-146 vote, the ABA's House of Delegates adopted the resolution calling on state bar admission authorities to cancel and not administer "any in-person bar exam during the COVID-19 pandemic." The resolution comes shortly after at least one exam taker in Colorado tested positive following an in-person administration of the bar exam there at the end of July.

Colorado was one of 23 jurisdictions to conduct in-person exams in July, and several others have in-person tests scheduled for September and October.

Under the resolution, the ABA urges authorities to not administer in-person exams "until and unless public health authorities determine that the examination can be administered in a manner that ensures the health and safety of bar applicants, proctors, other staff, and local communities."

Additionally, it urges them to consider alternative options like diploma privilege, remote exams, the creation or expansion of certified legal intern programs, supervised practice programs leading to licensure, or provisional admission that is subject to participants passing an in-person bar exam at a later date.

The resolution came up against some opposition on Tuesday, with opponents moving to postpone voting on it indefinitely.

Hulett Askew, the National Conference of Bar Examiners representative to the ABA House of Delegates, said that he opposed the resolution for a few reasons, including because it was made public just a few days before voting and because the writers did not collaborate with the NCBE when drafting it.

Also, he said he disagreed with the wording, which does not specify whether non-accredited law schools and their students or those who have failed the bar exam multiple times are included in the recommendation that jurisdictions consider diploma privilege as one option.

Finally, he said, a suggestion to consider diploma privilege runs counter to ABA policy, which supports a bar examination for admission into the profession.

Several supporters of the resolution spoke at the meeting Tuesday as well.

Patricia Salkin, a member of the ABA House of Delegates, said that law school graduates are being forced to risk their lives and long-term health in order to become licensed in the profession at in-person bar exams during the pandemic.

If they choose to not sit for an in-person exam, they face the prospect of not being licensed and not finding employment that allows them to pay off their student loans, she said.

"Our graduates are in a crisis, and they need us now more than ever before," Salkin said.

Daniel Rodriguez, dean emeritus of Northwestern Pritzker School of Law, said he had heard from numerous students with concerns, including one who has had panic attacks over her concern that she could expose her immunocompromised spouse to COVID-19 by taking the exam in person.

"They are asking and pleading for our help. They are asking the ABA to speak up, and loudly, on their behalf," Rodriguez said of recent law graduates.

--Editing by Brian Baresch.

For a reprint of this article, please contact reprints@law360.com.

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