Due to the ongoing pandemic, many jurisdictions—except those plunging ahead with superspreader events—are opting to hold a remote bar examination. Passing the bar exam is currently required for a law school graduate to practice law in most cases. But it is extremely unlikely that jurisdictions have the ability to build out the infrastructure to securely administer a remote bar exam, especially on only a few months’ notice.
Just last week, the American Board of Surgery had to cancel the remote administration of a qualifying exam part of the way through after issues in presenting the questions. There have since been so many reports that examinees' credit card information and personal data were compromised during the exam that the ABS is launching an investigation into the breach. Because it is standard for remote proctoring software to require a high level of access to the examinee’s computer, potential lawyers will be forced to make themselves and their data extremely vulnerable in order to take the exam.
Beyond just the possibility of hacking, some remote exams are proctored using facial recognition software, raising serious concerns about the privacy of examinees biometric information, algorithmic bias, and misidentification. And when human proctors have been used, there have been isolated reports of stalking and harassment of examinees. For a huge cohort of would-be attorneys, including the entire class of 2020, exposure to these dangers is not optional if they wish to practice law.
Remotely proctored bar exams are not the solution to the current crisis. Rather, jurisdictions should adopt an emergency diploma privilege allowing at least all 2020 graduates of ABA-accredited law schools to become licensed. This country is facing a massive access to justice crisis, and preventing new law school graduates from serving their communities unless they have exposed themselves and their data to danger is unjustifiable.
Amanda Pescovitz is a recent graduate of the George Washington University Law School and served as an editor on the George Washington International Law Review, as a Dean’s Fellow in the Fundamentals of Lawyering Program, and as President of the GW Law American Constitution Society.