Positive Report Card for Washington’s First Remote Bar Exam — What Happens Next?

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Anxieties were running higher than normal ahead of the winter 2021 Washington State Bar Exam that for the first time in the state was conducted remotely. However, with that inaugural remote bar exam now over and the results tabulated, the diagnosis from test-takers, faculty, and WSBA staff has been positive, almost surprisingly so given some of the concerns many had going in.

“I believe there was a fear of the unknown at first,” said Seattle University School of Law Director of Bar Studies Isabel Freitas Peres. “Except for some issues related to the ExamSoft software that were communicated, I think the administration of the exam went better than expected.”

On Dec. 3, 2020, the Washington Supreme Court issued an order authorizing the WSBA “to conduct the February 2021 administration of legal licensing examinations for admission using remote testing software.” It was the first instance in the state where law school graduates took the exam remotely rather than the traditional two-day, in-person test in which hundreds of test-takers might gather for their last major hurdle before becoming licensed to practice law.

While a remote exam was a new foray for this state, a handful of other states conducted at least one exam remotely in summer 2020, though with mixed results based on some of the highly publicized reports from those test-takers.

In addition to the historically unfamiliar format, chief among the concerns expressed have been concerns over the testing software’s sophistication level; more specifically the lack thereof. Using artificial intelligence (A.I.), the long-used software by ExamSoft was tweaked to handle remote exams as states implemented them to prevent further spread of COVID-19. Concerns have been raised over the A.I.’s ability to perform facial recognition checks, particularly amid reports that it has struggled with darker skin tones. Similar issues were raised about implicit biases baked into the A.I. that might disproportionately flag people of color or people with disabilities for potential violations of testing rules. Other concerns have included the lack of reliable internet for some test-takers, lack of a quiet space to take the test, security and privacy regarding images recorded over their webcams, and even whether test-takers will be flagged for getting up to go to the bathroom.

Recognizing the unanswered questions among students and law school faculty, on Feb. 17 the WSBA held a live information session to address the top concerns, answer questions, and dispel misconceptions. (A recap of the questions and answers from that session is available here.) Following that session, many of the most-pressing concerns were addressed and anxieties over the unknowns largely assuaged. Even so, ExamSoft still isn’t short of its critics in legal academia.

“ExamSoft has inadequately addressed issues of bias and inequity within their technology and these failures exacerbate the significant problems of inequity that already exist across the testing system,” said University of Washington School of Law Assistant Dean of Academic Success Programs Jessica L. West.

She isn’t alone. Similar critiques have also come out of Congress. Last December, a half-dozen U.S. Senators, led by Sen. Richard Blumenthal, sent a letter expressing their concerns to ExamSoft CEO Sebastian Vos.

“[A]ccording to recent media reports and personal stories, students—particularly students of color and with disabilities—have faced alarming issues in using the software, been locked out of tests, or wrongly accused of cheating,” they wrote, and requested “information on the steps that your company has taken to protect the civil rights of students and ensure that ExamSoft is not creating barriers for students’ futures.”

In response, Vos wrote that, among other things “virtual proctoring services that ExamSoft enables are not ‘live’: it is only after an exam ends that the virtual proctoring partner analyzes videos of exam-takers. That means that exam-takers cannot be interrupted during the exam. Furthermore, it is a human from the exam-taker’s institution, not software, that makes the final determination of whether exam standards have been broken.”

In total, 63.2 percent of exam takers received a passing score; among first-timers the pass rate was 73.7 percent. While it should be noted that scores for the latest exam were lowered to 266 from 270, the pass rate was at least comparable if not better than results of previous years.

A WSBA survey sent following the winter 2021 exam showed that, on average, people rated the experience of taking the exam remotely at about 7/10, with the majority rating it an 8 or above. Asked, if given the choice, would they prefer to take the bar exam in person or remotely, 60 percent of survey respondents preferred the remote option. When asked for detailed feedback, many said the exam went surprisingly well, with most critiques landing on peculiarities with the software, like the inability to highlight documents or the inability to use physical scratch paper on the essay portion (which is provided for in-person exams).

While the future post-pandemic remains murky, what is certain is that the next exam will be conducted remotely as well. On March 5, the Washington Supreme Court issued an order authorizing the Washington State Bar Association to administer the summer 2021 bar exam remotely as well. More broadly, the bar exam itself is the subject of much discussion and debate both locally and nationally.

Following a nationwide study, the National Conference of Bar Examiners is currently implementing its Testing Task Force’s “recommendations for the next generation of the bar exam,” dubbed the NextGen bar exam and expected to be complete in four to five years.

This month, at the conclusion of an hours-long debate that stretched across multiple meetings, the WSBA Board of Governors adopted a resolution in support of a bar exam to ensure a competent, ethical and diverse legal profession.

The Washington Supreme Court last year issued an order to create a Washington Bar Licensure Task Force that will “assess the efficacy of the Washington state bar exam and related requirements for licensing competent lawyers and examine current and past bar examination methods, passage rates, and alternative licensure methods” and “assess disproportionate impacts on examinees of color and first generation examinees, consider the need for alternatives to the current bar exam, and analyze those potential alternatives.” The Task Force has so far held two meetings and is chartered through Dec. 31.