Calif. Supreme Court Says February Bar Exam Will Be Online

By Hailey Konnath
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Law360 (November 20, 2020, 7:49 PM EST) -- The California Supreme Court on Thursday unveiled plans for the February 2021 exam to be administered online, saying the COVID-19 pandemic continues to make an in-person examination difficult.

"The changing circumstances surrounding the ongoing COVID-19 pandemic in California continue to severely limit the state bar's ability to administer the general bar examination in the traditional mass, in-person format," the court said in an administrative order.

The upcoming exam is scheduled for Feb. 23-24. The high court said the exam will still be administered in-person at the discretion of the California State Bar to applicants "granted testing accommodations that cannot be effectively provided and securely administered in a remote environment."

Individuals with other extenuating circumstances can also take the test in-person, the high court added.

The state held its first-ever online exam last month. The exam was initially slated for July, but in April, the high court postponed it to Sept. 9-10, citing "enormous challenges" stemming from the coronavirus pandemic. In June, the Supreme Court said it was mulling pushing the exam back again so it could see how the online first-year law students' exam went.

Also in October, the state Supreme Court and bar announced the launch of a commission to study the future of California's bar exam, in particular looking at whether alternative or additional testing should be implemented.

The Joint Supreme Court/State Bar Blue Ribbon Commission on the Future of the California Bar Exam will mull changes to the exam "and whether to adopt alternative or additional testing or tools to ensure minimum competence to practice law," according to the commission's charter. Notably, the group considered whether the bar exam should be administered online or in person, in the wake of the October exam.

The 2020 February exam garnered its lowest-ever pass rate. Of more than 4,200 test-takers, only 26.8% — about 1,100 people — passed, according to California Bar data released in May.

In July, the court permanently lowered the state's passing score from 1440 to 1390. A slew of lawyers, law professors, law school deans, students and state lawmakers had asked the court to apply the new score to past exams, in particular the February 2020 exam, but the court refused.

The California Assembly has backed retroactively lowering the score and passed a nonbinding resolution on Sept. 1 urging the high court to reconsider its refusal.

In September, California's Supreme Court rejected a petition from diploma privilege advocates who had pushed for the state to scrap its online exam altogether. The court shot down the petition in a two-sentence docket entry.

The state Supreme Court recently greenlighted a program that will allow law school graduates to practice law even if they haven't taken the bar exam or passed the February bar exam, the latest measure intended to support recent graduates whose plans have been disrupted during the COVID-19 pandemic.

In late October, a California federal judge tossed a law school graduate's Americans with Disabilities Act lawsuit alleging the bar discriminated against him by failing to provide adequate accommodations for his disabilities for the October online bar exam.

In her order permanently dismissing the case, U.S. District Judge Phyllis Hamilton said the state bar provided some accommodations and responded to Benjamin Kohn's requests. Kohn sued the bar in July after he was denied certain accommodations requested because of conditions including autism, neurological and attention disorders, and visual impairments, according to the judge's order.

Passing the exam, which is administered twice a year, is required to practice law in the state. The second test date, typically in July, draws more applicants, mostly law school graduates taking the exam for the first time. The February exam has historically seen a lower pass rate in California.

--Additional reporting by Mike LaSusa and Emily Sides. Editing by Philip Shea.

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

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