By Emma Cueto

Law360 (September 3, 2020, 7:15 PM EDT) -- Next week, 120 students are scheduled to sit for the Hawaii bar exam in person, each wearing a mask and seated alone at an eight-foot table spaced 10 feet from its neighbor while the coronavirus pandemic rages outside the testing site — and, students and others fear, potentially inside it as well.

Despite a major spike in infection rates in Hawaii — with Oahu, where Honolulu is located, being the hardest hit of Hawaii's five islands — the state's Supreme Court has continued with its plan to hold the bar exam in-person at the Hawaii Convention Center in Honolulu on Sept. 9 and 10.

The move has drawn criticism from law professors, students and some in state government. It is also a decision that appears at odds with local orders that residents stay in their homes except for essential activities and that prohibit gatherings of people from multiple households.

"This is the most uncaring thing I've seen in our profession," said Kenneth Lawson, a professor at the University of Hawaii's William S. Richardson School of Law.


"No group of recent grads has had to face a situation like COVID," Lawson added. "The last time there was a pandemic, in 1918, there was no bar exam. So no attorney can sit back and say, 'Well, the bar exam is stressful, but it's a rite of passage.'"

States across the country have had to make difficult decisions about the bar exam this year. Some states, such as Virginia, have delayed in-person exams, while others, such as North Carolina, already conducted them earlier in the summer. Many others have opted for online exams or other alternatives, such as provisional licenses or diploma privilege.

The Hawaii bar exam was initially scheduled to be held in July, but on March 31, the Hawaii Supreme Court pushed the exam back to the fall. The court indicated that it would still opt to hold the exam in person.

However, in late July, cases in Hawaii — which had been low through most of the spring and summer — began to skyrocket. Since mid-August, the state has averaged more than 200 cases a day, according to data from Johns Hopkins University. Honolulu, where the bar exam is set to take place, has seen about two new infections per 10,000 residents per day for most of August, according to the Hawaii Department of Health.

The decision to move forward with an event projected to include 120 people despite rising COVID-19 cases has drawn criticism, including from Democratic Rep. John M. Mizuno, chair of the Health Committee in the Hawaii House of Representatives.

"I say this with sensitivity and sincerity," Mizuno said in a statement. "We are in the greatest pandemic since the 1918 Spanish Flu. ... The current surge in COVID-19 cases along with the strict stay-at-home order issued for the island of Oahu makes an in-person exam unreasonable."

"I don't know if I would have an adequate reply to a loved one of a husband, wife, partner, parent, or child who died because of COVID-19 and it could have been prevented by alternatives," he added.

Law school professors have also spoken out against Hawaii's decision.

"When it was postponed, we were having minimal cases," said Prof. Andrea Freeman of the William S. Richardson School of Law. "Now we're in a complete lockdown. You're not even supposed to visit your neighbor. … And yet now they think it's safe to put it on."

When the Hawaii Supreme Court postponed the exam, the state's three-day rolling average of new cases was 25; on Aug. 28, the date of its most recent order updating safety precautions for the test, it was 293, according to Johns Hopkins, the highest number in the state to date.

The state high court has made some accommodations in response to the pandemic, including extending the deadline by which prospective attorneys can opt for a provisional license, which would allow them to practice under the supervision of another attorney for up to two years.

But Freeman noted that a provisional license was not a valid alternative for all students.

"You need very specific circumstances, where you have a job situation where there is a person who can supervise you," she said. "It's not a perfect solution, and it doesn't work for everybody."

Lawson said he worries that any negative consequences of the exam — both in terms of health risks and mental health impacts — are likely to disproportionately affect low-income students and students of color. Such students are more likely to live in multigenerational households, he said, and they are less likely to be able to take time off work to study for the bar again in the future if they opt for a provisional license now.

"To those students who can afford to study [later] ... yeah, they can take a provisional license," he said. "And that goes back to the lack of diversity in our whole bar. [The pandemic] continues to have an uneven effect on ... those who do not have the same economic standing as others." 

Lawson said he has also written to the Hawaii Supreme Court and Hawaii Board of Bar Examiners with his concerns.

The Board of Bar Examiners did not immediately respond to Law360's request for comment.

The high court highlighted the safety precautions in its most recent order, but did not comment further. Those precautions include seating test-takers at individual eight-foot desks spaced 10 feet apart, requiring masks to stay on for the entire session, and a mandatory 14-day quarantine before taking the exam for those coming from out of state.

Both Lawson and Freeman said they have heard from students who are scared to take the exam, adding more anxiety around an already stressful event.

"I'm hearing from students who are terrified of going into that room," she said. "I think it is not safe, and I don't think it's right to put the lives of our future attorneys in jeopardy."

Lawson concurred. "I get calls every day," he said.

Students are worried about getting sick or infecting relatives if they take the exam, but don't know if they will be able to find employers willing to take on the risk of hiring someone with a provisional license, he said.

Student group Bar Students Seeking a Fair Exam Hui has pushed for alternatives to the in-person exam.

"I think that all stakeholders need to realize that there are realistic alternatives to an in-person exam," BSSAFE Hui spokesperson Aris Springs said in a statement. "So many of our residents have sacrificed months of closures, and to hold this mass gathering of people when our hospitals are bursting at the seams and businesses are going bankrupt is insensitive to those sacrifices."

There is also a question of whether the exam itself is permitted under the current lockdown orders.

In response to the rising infection rate, the mayor of Honolulu on Aug. 25 shut down nonessential businesses and ordered that all "social gatherings," defined as "a gathering or event that brings together persons from multiple households or living units at the same time" for "a discrete, shared or group experience" in any single space, are prohibited.

Though there are some exceptions for "professional services" such as law, the orders specify that these professional services exceptions only apply when supporting essential activities.

BSSAFE Hui provided Law360 with its correspondence with Hawaii Department of Health director Bruce Anderson, in which he said he was not able to evaluate possible alternatives to an in-person exam but that the exam as planned "would not be wise" and would be contrary to the orders in effect in Honolulu. He also agreed it was impractical to ask out-of-state test-takers to quarantine for 14 days prior to taking the exam, as is also required in Hawaii for those entering the state.

Anderson and the Hawaii Department of Health did not respond to a request for comment.

The American Bar Association's House of Delegates voted 256-146 in August to recommend states not hold in-person exams in 2020 after a Colorado test-taker tested positive for COVID-19.

Lawson, Freeman and BSSAFE Hui have all advocated for the state to adopt diploma privilege for this year's graduates, which would automatically admit recent graduates from Hawaii law schools to the bar. It's an option that has been adopted in Louisiana, Oregon, Utah and Washington State. The Pennsylvania Bar Association recommended in July that the state grant diploma privilege, though the courts rejected the idea.

Some states have opted to try holding the exam online. However, the first state to go ahead with the plan, Michigan, experienced technical issues reportedly due to a cyberattack on the software platform hosting the exam, causing concern in other states.

The situation has also brought renewed criticism of the exam from those who feel it is not an ideal licensing tool even at the best of times.

"What's the concern [when it comes to diploma privilege]?" Freeman said. "That we may give admission to the bar [to those] who wouldn't have otherwise passed. But that's not necessarily a bad thing, because the bar exam tests exam-taking skills. It doesn't test attorneys' skills particularly well."

"The question to the [Hawaii] Supreme Court is: What does justice look like in this situation?" Lawson added. "It's diploma privilege."

--Additional reporting by Khorri Atkinson, Nathan Hale, Matt Fair and Aebra Coe. Editing by Alanna Weissman and Kelly Duncan.

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