The Legal Beat
California Bar Examiners Breached State Policy With Disastrous Online Bar Exam
Posted on Monday May 03, 2021
Online bar exams were, admittedly, a good idea in theory.
The alternative — which the more reckless of state bar examiners embraced — was forcing graduates to take the exam at an in-person superspreader event.
Well, that’s not entirely fair. States could have followed the mounds of evidence including decades of practical results out of Wisconsin that diploma privilege has nil effect when it comes to protecting the public. Even good faith arguments in defense of the bar exam ultimately rely on unwarranted conjecture, gut feeling, and hand-waving away of empirical data. The only good argument for the exam is that it may disadvantage admittedly practice-ready graduates, but is a price worth paying to weed out graduates from substandard law schools — an argument that begs the question: why are law schools getting accredited if they aren’t educating capable lawyers?
But instead, a number of states flocked to online exam providers in a mad dash to fuel their addiction to this exam (or, more accurately, to help their “non-profit” NCBE cronies continue to turn $5-8 million in profits every year running a baseless exam with the blessing of state agencies). So in addition to pouring cash into the NCBE coffers, states threw cash at online platforms with mostly disastrous, cruel, and racist effect. The state bar examiners, however, assured us that they took extraordinary care in developing this exam.
So, guess what happened when a state auditing agency dug into bar examiner decisions.
Color me entirely shocked!
You mean California — the state that simply gave up on responding to support requests from examinees and decided to just blindly accept that one-third of the examinees were cheating (fewer than 50 cases were ultimately deemed problematic, a conclusion reached after placing the burden on examinees to prove they weren’t cheating) instead of considering that their boondoggle might be fatally flawed — might have carelessly rushed into this process in violation of explicit policy? How could that be?
California already had a deal with ExamSoft to administer the standard in-person exam. When asked by the state supreme court to evaluate an online exam, the state bar just threw $830K at the company to provide the test online. But see, the regulations governing the California bar exam per the California State Auditor’s report:
The State Bar’s ExamSoft contract manager stated that she did not document how she determined that ExamSoft provided the best value before submitting the April 2020 contract or the August 2020 amendment. She also stated that she did not perform a best‑value analysis, in part because the State Bar was not sure whether any other vendor could meet its technical needs. However, she could not provide any documentary support for this conclusion either. The chief administrative officer (administrative officer) confirmed that for the ExamSoft agreements, the State Bar did not enforce its procurement policies related to documenting the best value because of its knowledge about and history of contracting with ExamSoft. In response to our concerns, he stated that the State Bar developed policies requiring that contract managers submit to its procurement unit descriptions of their justification for using a competitive bidding exemption and of their best‑value analysis. Until it enforces these policies, the State Bar risks engaging in the kinds of practices that its general procurement manual is meant to prevent, such as failing to determine whether more cost‑effective alternatives exist.
As it turned out, ExamSoft was the only “successful” online exam provider, though the air quotes are carrying a lot of water there. But the problem is this state was almost certainly not alone. California’s experience in pushing past its own rules to square peg-round hole a solution that testing software experts warned would be fraught with disaster pulls back the curtain on how these decisions were made throughout the country. At every turn, state bar examiners proved themselves to be exactly the sort of people that would see an internal combustion engine and built mechanical horses rather than a car.
Yet here we are. Coming out of the pandemic having learned… pretty much nothing.
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.