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Adapting and Innovating

Like everything else, the Testing Task Force’s study of the bar exam has been affected by the devastating pandemic that has gripped the world. We are in the last year of our three-year study to ensure that the bar exam keeps pace with our changing profession, which, like all professions, has had to quickly adapt in the last few months to a new way of doing business. Who would have thought that the US Supreme Court would change its stance on hearing oral arguments remotely and broadcasting the audio live for the public? Even if this is only a temporary solution to an emergency, it opens up possibilities for new ways of thinking about how things could be done moving forward.

The plan for the Task Force’s activities during Phase 3 of its study, which consist of developing a test blueprint and design, has been adapted to use virtual rather than in-person meetings. But although the way we accomplish our work may change, our mission remains the same: to ensure that the appropriate knowledge, skills, and abilities required for competent entry-level practice continue to be tested on the bar exam, and that the bar exam continues to be valid, reliable, and fair. What should be tested will be determined with the help of our blueprint development committee (BDC), comprised of newly licensed lawyers (NLLs) and experienced attorneys who work with NLLs. The BDC will meet virtually at the end of June to review the empirical data collected during our practice analysis, which provides a comprehensive picture of what NLLs do and need to know, and then apply their collective experience and judgment to recommending what should be tested on the bar exam.

The next step will be determining the best ways to test the content. The unprecedented situation we are all facing with the pandemic will certainly affect everyone’s thinking about delivery methods. For licensing entities, COVID-19 has brought to the forefront issues surrounding how to administer high-stake exams in a safe and secure manner. Delivery methods for the next generation of the bar exam were already being contemplated by the Task Force, but the current crisis has highlighted issues with the traditional in-person administration. Social distancing, face masks, and hand sanitizers are a part of the new normal for work, schools, and any-size gatherings until a vaccine or other suitable method of mitigation against the spread of the novel coronavirus is available. An alternative to in-person testing is remote testing, something that, prior to the pandemic, had not been used for high-stakes licensing exams in any profession in the US, although it is used for some medium- and low-stakes tests. Remote testing can be carried out by different methods, but the defining characteristic is that candidates take the test on a computer in their own environment without a proctor being in the same physical location as the candidate. Like the Supreme Court, NCBE has recognized that existing test delivery practices might need to be adapted during the pandemic and is providing an abbreviated test for jurisdictions that need to use remote testing on an emergency basis in 2020. Whether remote administration might be feasible for a full-length bar exam in the future is one of the questions the Task Force will need to consider carefully.

COVID-19 is forcing everyone to think creatively, and in looking at innovative options for how the bar exam could be administered in the future, we feel fortunate that we will be able to rely on recommendations from our test design committee (TDC), which will convene in mid-July. This committee will be composed of bar administrators, bar examiners, justices, and legal educators, all of whom are dealing first-hand with pandemic-related challenges for educating and testing. The TDC will discuss and make suggestions regarding how the content on the bar exam should be tested, taking into consideration effectiveness, feasibility, cost, and best practices in testing. Having the benefit of doing this work in the context of what is currently transpiring will be of value to the TDC, particularly when thinking about how best to ensure that the bar exam is prepared to meet future challenges.

We are immensely thankful for our stakeholders’ interest and involvement in our study. As the saying goes, “necessity is the mother of invention,” and the Task Force looks forward to working with both of our committees to ensure that we make solid recommendations for the next generation of the bar exam, taking into account all we are learning along the way. In the meantime, we wish everyone good health!

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Jonathan Azrael, Chairman, MD Bd of Bar Examiners
June 12, 2020 8:23 pm

Covid-19 and social distancing requirements have made it crystal clear that an online UBE is long overdue.