The Legal Beat
The Bar Exam-Industrial Complex Wages War In Washington State
Posted on Tuesday February 23, 2021
Last June, the state of Washington decided to extend emergency diploma privilege to graduates of ABA-accredited law schools. Those without such degrees, and those who wanted the flexibility of a UBE score, were free to take a later administration of the exam. The extension of diploma privilege allowed graduates to begin their careers serving the public immediately, while vastly reducing the number of expected examinees, making future administrations — either in-person or remote — much less taxing. With in-person exams still a risky proposition in the early days of vaccination and remote exams boasting imposing grading obstacles (along with being generally terrible), it was an all around win. It also functioned as a trial balloon, allowing the state to evaluate whether or not it really needed a costly, anachronistic bar exam for ABA-accredited graduates in the first place.
That’s what appears to have terrified the folks in Wisconsin — ironically a diploma privilege state — who make millions of dollars off the existence of the bar exam and their colleagues in the state licensing apparatus.
So Washington found itself a battleground for the professional necessity of an additional expensive test after an already expensive degree from schools that have gone through an already extensive accreditation process. And, at the moment, entrenched monied interests appear to have the upper hand.
The Washington Supreme Court decided to go forward with the February bar exam through ExamSoft, bringing it back in line with the rest of the national licensing consortium. One cycle of diploma privilege licensure risks exposing that the emperor has no clothes when the waived cohort proves no less competent than attorneys who passed the bar, but two cycles becomes a trend that could unravel the whole self-justifying ball game. The data demonstrating that the bar exam has no public protection value can be downplayed based on the small sample size — adding more states to the diploma privilege pool would obliterate a key examiner talking point.
The court received letters from many sources including at least three letters from Washington law student coalitions, two letters each from two of Washington’s three law school deans, and an ACLU-WA letter. Unfortunately, these entreaties didn’t receive any direct engagement from the court.
The earlier opinion provided no details as to the reasoning behind the grant of emergency privilege, but, Chief Justice Steven Gonzalez says that he felt the earlier diploma privilege grant was limited to a world where remote exams could not be effectively administered, something that the court feels — despite the letters from experts and the actual lived experience of the October exam — is possible now. Because the NCBE and ExamSoft say it’s possible now and would very much like their money promptly.
It doesn’t even make sense. Whatever the reasoning in June, the court decided that diploma privilege did not jeopardize the public. That a half-measure exam is now possible doesn’t change that. To paraphrase the Winston Churchill anecdote, we’ve already established that the bar exam doesn’t protect the public, we’re just haggling now.
Chief Justice Gonzalez said the Washington State Bar has assured the court some of the problems associated with the software have been addressed.
“For example, the last iteration had problems with people being flagged during the test and knowing they were being flagged and people being disproportionately flagged if they had darker skin,” Gonzalez said.
He said it no longer flags test takers in the middle of the exam.
While informing examinees that they have been flagged put an unacceptable additional burden upon them, somehow I think the bigger problem was that it marked people of color for cheating based on the color of their skin in the first place. A shorter translation of the Chief’s reasoning: “Look, we get that it’s still racist, but we’re assured that it’s that polite, country club racism now.”
A recent “Bar Exam Q&A” further extends upon the state’s reasoning:
Q. How will WSBA address the bias inherent even in human review, especially when we know we can expect people of color and people with disabilities to be subjected to more flags and, hence, more human review?
A. We acknowledge no process is free from bias—we are cognizant of those biases and working to mitigate them. We are prepared to review many flags, and we are not going to look at anything beyond the very specific behavior flagged by the software. In most cases, the flags should be easily cleared (for example, as in the case of a dog barking in the background).
And by “extends,” I mean they found a way to make the shrug emoji 66 words long.
California flagged one-third of all examinees for cheating! The volume of false positives was so high that California then improperly compounded the harm by shifting the onus to the examinees to show cause that they shouldn’t be failed. Washington seems committed to avoiding the latter problem, but everyone has a plan before they get punched in the face. When half of the exams come back flagged — which empirics suggest is more than possible — what are they going to do then? “Easily cleared” flags may exist, but what happens when the test flags someone repeatedly for just a complexion too dark for the inherent bias of the algorithm? That’s not an isolated incident, it’s going to be flagged repeatedly. Are they watching the whole exam? That’s the sort of scrutiny that can gin up imagined violations that would never even be seen in other exams. These are all problems that no one has addressed that the court is just waving away.
Gonzalez did say the court has set up a working group, co-chaired by Justice Raquel Montoya-Lewis, to discuss the broader issue of using the bar exam as a way of measuring someone’s ability to practice law.
“Anyone can submit input to that,” Gonzalez said.
That’s a great idea. Unfortunately, anyone could submit input to this decision too and it just ended up in the trash heap.
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.