The Legal Beat

After Running Risky Superspreader Event In July, Bar Examiners Move February Online
Posted on Monday November 23, 2020

I risked a superspreader event and NOW you’re moving online?!?!?

This one really comes down to the question of whether to cry over the hypocrisy or smile that it’s finally come to an end.

Back in July, when North Carolina boasted around 2,000 new COVID-19 cases every day, the North Carolina bar examiners eschewed the idea of putting off the test to join the ranks of the remote testing states. They’d take a stab at social distancing and maybe occasionally wear masks and call it good. The online exam was too risky they felt, assuming one defines risk as “unreliable results” and not “a state-sponsored superspreader event.”

But today, the North Carolina Board of Law Examiners has changed course and announced that the February bar exam will be held remotely. In their statement announcing the decision, the examiners note:

Current reports indicate COVID-19 cases in majority of states in U.S. are rising. While the future trajectory of pandemic is uncertain, it is predicted that cases may continue to increase, and that pandemic may worsen over the next several months. While it is possible that conditions might permit an in-person UBE in February 2021, with coronavirus cases continuing to increase in North Carolina at record levels and the unknowable path the pandemic may take here in the coming months, there is a substantial risk that an in-person administration may have to be canceled. The Board feels this risk creates an unacceptable level of uncertainty for applicants and could result in significant stress and anxiety.

Indeed. As noted above, back in July, North Carolina added about 2,000 new cases a day. Yesterday, they added 4,500. The current projection from Healthdata.org finds the state with between 9,500 to 16,400 new cases daily on February 14, 2021. Obviously the arrival of multiple vaccines could disrupt that path, but the examiners need to plan based on where we are right now.

Putting aside all the reasons why the remote exam format is also terrible — and they are legion — at least it’s not forcing people to sit in a convention center together. I’m even going to set aside how wildly unfair this was to all the people who risked their health and the health of their loved ones to take it in July because they were told then that a delay was irrelevant because the jurisdiction would never move online.

And let’s not forget the people who didn’t register for this exam before the deadline passed because they were told it was going to be in person and they were already too smart to put themselves at risk. Is there going to be some accommodation for them? One hopes that this could be extended at a bare minimum.

But even with all that, it’s not what has me miffed right now. No, what bugs me about this announcement is the implicit claim that the examiners have made this move because they’re “taking the virus seriously.”

That’s not how the virus works. It didn’t suddenly get bad in North Carolina. Viruses are exponential actors and today’s outbreak is the result of last week’s policies… and the ones before that… and the ones before that. The “future trajectory of [the] pandemic” isn’t so much “uncertain” as the direct and natural consequence of people’s actions. If one person got COVID from the July bar exam, that has almost certainly created hundreds of cases by now and is still spreading. Even if ZERO people spread the virus at the North Carolina bar exam, it was still a horrible decision that fed the current outbreak. Back in July, North Carolina lent its credibility to the myth that the virus wasn’t anything a little performative distancing and lackadaisical mask-wearing couldn’t fix — precautionary measures that, if done properly, greatly reduce the risk but are still not excuses to take foolhardy actions. If folks want to know why cases are running rampant in North Carolina right now, consider that the state officially acted as if COVID-19 had peaked back in July because they couldn’t envision a world where they didn’t force people to take a test that has next to nil value as a predictor of attorney competence.

But unfortunately there have been too many bad decisions made over the course of this pandemic to go around. So, fine, I’ll just smile that they’ve closed the book on their irresponsibility. Because I know I’m about 48 hours away from learning that some other state has opted to do it in-person in February with no mask mandate because “FREEDOM!”

(Full announcement on the next page.)

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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