Adapting to Change

Many questioned if the bar exam — so difficult that former California Gov. Jerry Brown failed it the first time he tried — should have been held during a pandemic, one that health experts say tends to spread most quickly among people in large gatherings . . . such as the bar exam.

Some of the considered alternatives, such as holding it online, were met with concern, given the test had never been presented that way. Some students were concerned about an online exam for number of reasons. Software glitches were one. So was whether lower-income students had the necessary tools and quiet, private environments to take an online test. 

But one of the more pressing worries was this: The bar is stressful even under optimal conditions; imagine the toll it would take on test-takers during a pandemic. 

Graduates expressed that concern and repeatedly called for diploma privilege. While there was a nationwide movement to allow diploma privilege, only Utah, Louisiana, Washington and Oregon took such a step. 
Wisconsin, on the other hand, has had diploma privilege for more than a century. 

“Students are suffering educational, familial and financial disruptions,” wrote petitioners in Illinois. “Graduates were suddenly booted from college campuses, forcing them to scramble for housing for the summer and potentially the fall. Many have lost full- or part-time jobs needed to support themselves and their families. Still others have been directly infected with COVID-19 or are caring for those infected or at risk. Now, law graduates must grapple with the reality that they may become lawyers much later than anticipated, not because of their own actions, but because of a global pandemic that is spiraling out of control.”

Illinois did not grant diploma privilege. It held the bar online in October 2019. 

Petitioners throughout the nation said lawyers were needed more than ever, given the pandemic’s wrath. So it made little sense to delay the bar, they argued. 

This from the Florida petition: “The times are precarious indeed, requiring more and not fewer legal advocates. Residents across the state have already begun to experience the toll of COVID-19 in numerous ways. According to The Brookings Institution, small businesses are experiencing the brunt of COVID-19. Individuals are losing their jobs and associated benefits at a rapid rate. Lost income and savings coupled with new expenses for child and elder care will especially hit the working class.”

Florida did not grant diploma privilege either. It also held the bar online in October.

It wasn’t just students who had to pivot. So did bar prep companies, such as Kaplan. Normally, these companies prepare students for two bar exam dates a year — July and February. This time, they had students taking the exam on multiple dates.

“We adapted,” said Amit Schlesinger, Kaplan's executive director of legal programs. “Our students were stressed, to say the least, but we were with them every step of the way.”

Prep is something of a science. Students normally study for eight to nine weeks leading up to the bar. When the bar was postponed in most states, students found themselves in uncharted territory. Yes, they had more time to study, but that was not necessarily an advantage, Schlesinger said. They were in danger of forgetting what they had already studied and needed to re-review their prep.

Moving the test online did not affect prep significantly, Schlesinger said. There had been talk of offering the test online before the pandemic, he said, so it was not an entirely surprise twist. Some students complained of software failures, but he said the online test was successful overall.

He expects that after the pandemic, an online option may become part of the mix.

However, the bar is a rite of passage that has much history and tradition. For instance, if you take the bar exam in Virginia, you must dress in “court appropriate attire,” according to the Virginia Board of Bar Examiners. 

Even certain shoes are required: “Due to the nature of the floors at the testing site, and as a courtesy to the other applicants, court-appropriate soft- or rubber-soled shoes are preferred, as are flat or low heels. No sandals, flip-flops, athletic shoes, etc. are allowed.” 

When it came to this year’s bar, Kaplan made sure not just to communicate with clients but to “over-communicate.” Schlesinger said. Not only were they preparing for the most important test of their lives but also they had to handle day-to-day obligations during a pandemic. A simple trip to the grocery store was not simple. Jobs were delayed. Family members may have been sick. 

And the situation is not exactly easing. For instance, the results of those who took the test in October weren’t expected until around Thanksgiving. If a person failed, he or she had to make a quick  decision whether to take the February test and begin prepping almost immediately. That’s a lot of pressure, considering how recently they took the first test.

Schlesinger said Kaplan advised students who failed the October test to take it again in February. Kaplan offers free prep if a client isn’t successful, he noted. 

That so many accomplished people have failed the bar — a test so difficult that Kathleen Sullivan, the former dean of Stanford Law School failed it the first time around — is a sign of its flaws, said Berman, the AccessLex bar expert.  

Why do they fail and then pass?

“People don’t miraculously get smarter; their IQs don’t change,” she said. “They just change their approach of studying.” 

Take former California Governor Pete Wilson: He failed the bar . . . three times . . . before finally succeeding. 

Editor's note: this full story is available in the January-February issue of The National Jurist. You may subscribe to the digital magazine, for free, here.