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Harvard Law School students joined peers from law schools across the state in a letter urging the Massachusetts Supreme Judicial Court to replace the 2020 bar exam with an automatic admission option — a request the court subsequently denied.
The students’ July 10 letter asked the court to consider an “emergency diploma privilege plus” strategy, which would license law school graduates without requiring the bar examination. Currently, the court plans to administer a delayed online exam on October 5 and 6 due to the ongoing coronavirus pandemic.
The letter received over 650 signatures from students and members of the legal community, including Suffolk County District Attorney Rachael Rollins and the deans of all accredited law schools in Massachusetts except Harvard. Two retired Associate Justices of the Massachusetts Supreme Judicial Court also signed the letter in support.
Law School Dean John F. Manning ’82 previously wrote to the court alongside eight other law school deans in a series of letters dating from April 15 to July 8. Those letters requested the adoption of a temporary practice authority that would allow graduates to begin working in the legal field despite testing delays.
The court also rebuffed that proposal, citing concerns about allowing graduates to practice law only for them to fail the exam in the future.
“Not only would this raise justifiable concerns about their competence to practice law when they were doing so, but it also would create the problem of nascent law practices having suddenly to close shop, potentially leaving clients in the lurch,” Chief Justice Ralph D. Gants wrote in a July 13 response.
The authors of the July 10 letter instead advocate for permanent bar admission.
“Some employers might be willing to hire law school graduates understanding that they need to take time off from work a year or two down the road, but lots of other employers probably don't have the flexibility to make that sort of accommodation,” Samuel B. Feigenbaum, a recent Law School graduate who helped write the letter, said in an interview.
The recent letter also includes the results of a survey of more than 190 law school graduates. It claims the COVID-19 pandemic has created obstacles preventing 2020 examinees from adequately preparing for the upcoming bar exam.
“As a result of these and additional hardships, 75% of respondents report financial insecurity, 29% report housing insecurity, and 79% report that they are currently struggling with their emotional and mental health,” the letter reads.
The survey also includes data on remote testing conditions, finding that less than 46 percent of respondents have reliable Internet access, less than 31 percent have access to a quiet testing space, and more than 75 percent feel that they have been unable to prepare for the exam due to the pandemic.
“It is a basic premise of standardized testing that a test is fair and equitable only if all examinees prepare for the test under similar circumstances and take the test under similar conditions,” the letter reads. “The data from the impact survey confirms what has been clear from the start---it is impossible to achieve this during the COVID-19 pandemic.”
Recent Law School graduate Hannah N. Perls — another author of the letter — claimed the current system would also advantage “students of privilege” due to the online exam’s monitoring.
“One thing they said about the online exam is that we will be monitored using machine learning or AI software where interruptions and abrupt noises and distractions could trigger a red flag,” she said. “And so, the students who pass this online exam will probably have access to the quietest spaces and the most reliable internet.”
Perls also raised concerns about the court’s announcement that the new online exam will be non-transferable, meaning examinees cannot use their scores outside the state except in Maryland, Tennessee, and the District of Columbia, which have reached individual agreements with the Board of Bar Examiners.
The letter also discussed a 2017 study on bar exam pass rates in New York, which uses the same Uniform Bar Exam typically offered in Massachusetts. The study found that a white test-taker is 39 percent more likely to pass the bar exam than a Latinx exam-taker and 64 percent more likely to pass than a Black exam-taker.
“Coronavirus, in our expectation, will simply make those disparities worse because coronavirus also has racial and socio-economic disparate outcomes,” Feigenbaum said. “Black and brown folks are far more likely to know folks who've gotten seriously ill or died from coronavirus.”
Perls said the differences in pass rates across ethnicities reflects the origin of the bar exam, which she said aimed to reduce the number of Black legal practitioners.
“When we fight to uphold the institution of the bar exam, we are fighting to uphold an exam that has traditionally been used to exclude Black lawyers and also Hispanic and Latinx lawyers,” she said.
“We have an opportunity to address the long-standing disparities in the legal profession, and the compounding disparities that COVID-19 presents, and the only solution at this point is emergency diploma privilege,” Perls added.
Marilyn J. Wellington — the executive director of the Board of Bar Examiners — responded to the letter in a July 14 email to the authors, rejecting the proposed strategy.
“We will explore longer-term solutions to respond to the concerns you have shared. Diploma privilege, however, is not a solution that will be provided at this time,” the email reads.
Wellington wrote that the Justices recognize the challenges faced by examinees and thanked the signatories for sharing their perspectives — in reference to the 93 testimonials included in the July 10 letter on behalf of 2020 Massachusetts Bar applicants.
The testimonials shared obstacles brought on by the pandemic that currently prevent examinees from preparing for the bar exam, such as losing loved ones, caring for young and sick children, and working as essential employees to pay off student loans.
“The delay of the 2020 MA bar exam has, in short, broken me,” one testimonial reads. “It has cast me into a world of uncertainty and also a sudden realization that I now [won’t] be able to afford things as basic as rent until October.”
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