At the height of a global pandemic, and shortly after the expiration of the CARES Act which provided a temporary safety net to millions of Californians, the Supreme Court of California issued an order denying retroactivity of the 1390 Cal Bar Exam (CBX) cut score to February 2020 applicants who had already met this standard.
Despite the foreseeable burgeoning of state-wide homelessness, health care, and unemployment crises arising from the pandemic, the Court denied 376 newly-qualified advocates the ability to serve their communities. The critical need for new advocates was recently expressed in an open letter by Public Rights Project which stated: “Disrupting the flow of new lawyers… will further undermine access to justice … [T]hreats our marginalized communities face are especially grave at this moment…We need licensed law graduates to meet the needs of these communities right away.” The letter, which advocated for Diploma Privilege as a way to meet this need, was signed by 130 public interest law firms nationwide. Nonetheless, the Court’s decision disregarded this need, despite the ethics mandate that California attorneys “Never…reject, for any consideration personal to [themselves], the cause of the defenseless or the oppressed.”
As a result of the Court’s denial, already-qualified applicants are being forced into a “Sophie’s choice” of either: (1) an online bar exam employing facial-recognition software “strongly opposed” by the ACLU, and already proven untrustworthy in places like Florida, which canceled its online administration just two days before testing, or (2) in-person testing during a pandemic in order to access certain ADA-mandated accommodations or online testing necessities unavailable at home. Both of these options require the signing of liability waivers that any astute 1L would recognize as unconscionable, a “take it or leave it” scenario where “leaving it” is not viable for applicants facing job loss and snowballing student debt. There is simply no justification for requiring redundant performance, in the midst of a pandemic, of what has already been empirically proven – those February examinees achieving a score of 1390 and above are now considered competent to practice law in California.
In rejecting requests for, at a minimum, February 2020 retroactivity, the Court denied petitions drafted and/or signed by California deans at all 18 ABA-accredited law schools, myriad law professors and clinicians, numerous state legislators, attorneys, and recent law school graduates. The Court did not burden itself with countering concrete arguments in favor of retroactivity, nor did they provide any insight into how their decision was, in fact, premised in principles of equity and social justice. Instead, the Court, in an attempt to overcome precedent, dismissed the Montana Supreme Court’s 2016 grant of retroactivity. The Court stated that Montana’s retroactive reduction – with an effective date going back to 2013 – was implemented to rectify an earlier increase in their passing score, and that “no similar circumstances exist here.” Au contraire. The Montana Court’s reasoning is applicable to California. Our historically high cut score of 1440 has now been recognized by the Court as unnecessarily burdensome – the very circumstance Montana sought to remedy by providing retroactivity. And in distinguishing Montana’s decision, our Court overlooked perhaps the most important distinction of all – Montana granted retroactivity without need-based incentives triggered by a global pandemic. As of this writing, there are 593,141 confirmed cases in of Covid-19 in California.
The arguments in favor of retroactivity the Court failed to address include:
Cal Bar already recognizes that once an applicant has achieved a qualifying exam score, the score remains valid for 5 years.
It stands to reason that if a passing score remains operative for five years, a passing score achieved mere months ago is similarly valid, if not more so. In truth, many February 2020 examinees achieved a score well in excess of 1390. To the degree the CBX is an accurate measure of competence, the 376 February 2020 applicants achieving scores of 1390-1439 should not be stigmatized by “failure,” having met or exceeded the current standard within the same calendar year the reduction took effect.
Retroactive application would help correct the documented racial bias and adverse impact the California Bar Exam has on applicants identifying as Black, Latino, and Asian.
State Bar statistics show that if the passing score had earlier been reduced from 1440 to 1390, in the ten-year interval spanning 2009-2019, only 5% more White test-takers, but 13% more Black, 8% more Latino, and 7% more Asian test-takers would have passed the exam.” This data proves retroactivity would increase the diversity of the California attorney pool at a time when marginalized communities face increased risk of disease, unemployment, eviction, and homelessness.
COVID-19 adversely impacted the February 2020 Examinees.
Any arguments that COVID-19 did not adversely impact the February 2020 CBX – which had the lowest pass rate ever recorded – are disingenuous at best. The exam took place on February 25 and 26, 2020. By that time: the spread of COVID-19 was known to occur via human-to-human transmission and known to be lethal; the World Health Organization (WHO) and the U.S. Department of Health and Human Services had declared COVID-19 a “world health emergency of international concern”; airports in California, including SFO and LAX, were actively screening for the virus, and there were already documented cases in California. By test day, San Francisco had declared a state of emergency, COVID-19 had spread to 27 countries, and the WHO had announced COVID-19 was already verging towards a global pandemic. The State Bar of California itself acknowledged the risk posed to examinees when, on February 14, they notified all applicants that masks would be permitted at test sites, and that hand sanitizer would be provided. The once-benign persistent cough of your unmasked neighbor was now a potentially deadly distraction. Do you focus on charting the Rule Against Perpetuities or turn away from potential infection? This is not hyperbole – this actually happened. Complaints are on file against Cal Bar for failing to manage the COVID-informed distractions that permeated test centers. Proctors were able to distance themselves. Examinees were not.
COVID-19 adversely affected the essay grading process of February 2020 applicants.
The adverse impact of COVID-19 on February test takers was not confined to the exam administration. As well-documented in Evan Miller’s original Retroactivity Letter & Petition, the COVID-19 pandemic likely had an adverse impact on the grading process of the written portion of the February 2020 CBX. By then, San Francisco was under emergency orders and the usually collaborative, in-person “calibration sessions” – wherein standards for passing work were collectively established and monitored by experienced graders – were likely relegated to the inherent idiosyncrasies of Zoom. Full lockdown became effective on March 16, traditionally the time calibration sessions begin.
In-person grading has historically been critical. The California State Bar requires essay graders to live and work in the greater San Francisco Bay Area “for security and logistical considerations.” The swift switch to Zoom-based calibration necessitated by emergency orders afforded little opportunity to ensure the new scoring process would yield valid results. Zoom meetings during lockdown can feel particularly performative, causing home and work lives to collide, and heightening feelings of self-consciousness that pull focus from the task at hand. Multi-person screens can cause stress, exhaustion, and distractions, leaving people feeling disengaged from the speaker.
The February essay grading process also led to extraordinarily inconsistent results. All February applicants seeking retroactivity fall into the pool that received a score of 1390-1439. Significantly, this is the precise threshold wherein applicants are subject to “re-grading.” Re-grading is meant to be a prophylactic against “false-negative” results. All those ultimately failing after re-grading later receive both sets of scores. February 2020 results revealed that grades on a single essay deviated as much as 20 points between the first and second reads. This is especially significant on an exam that is ultimately scored to the fourth decimal point and controls the destiny of each and every applicant.
Although Covid-19 adversely impacted February 2020 applicants, they are receiving none of the compensatory privileges awarded to May 2020 law school graduates.
Notably, the “Sophie’s choice” of assuming the risk of IT failures or in-person testing is not being forced upon 2020 law school graduates. Unlike February examinees who have already proven their competency by achieving a 1390 or higher, 2020 graduates have been given “provisional” licensure. This will allow them to become employed as attorneys without any testing whatsoever. In effect, February applicants who have already proven their competency through traditional testing methods are now viewed as less deserving of licensure than those that have never been subjected to the rigors of CBX preparation and testing, let alone achieved a passing score. Certainly, the Court’s decision to protect the Class of 2020 is laudable. Excluding February applicants from these protections is not. This exclusion is undeniably inequitable. All applicants deserve equal protection from the risk of infection, from the risk of IT failures, and from the erroneous presumption that all have equal opportunity for success when testing online and at home.
The Court should reconsider its decision on cut-score retroactivity, and grant immediate licensure to February applicants scoring over 1390 who have fulfilled all other requirements, as they have now demonstrated both competency and a recently-manifested commitment to practice. These applicants showed up in February despite the mental and physical challenges brought on by the pandemic. That commitment, combined with adequate performance, merits recognition.
JURIST carries extended coverage of Bars Exams in the Pandemic.
The author recently graduated from an ABA-accredited law school after completing Public Interest and Criminal Law concentrations. She is the recipient of Honors in Public Interest Law, The National Association of Women Attorneys Outstanding Graduate Award, and the American Law Institute Scholarship and Leadership Award. As a Certified Law Student, she drafted two successful clemency petitions and won an argument in the California Court of Appeal, 2nd District, Division 7 – yet with a CBX score of 1438, she remains “incompetent” to practice law in a state that has deemed 1390 sufficient for licensure.
Suggested citation: Public Interest Honors Graduate, We Made the Cut: Why is California Denying Licensure to Recent Grads During a Global Pandemic?, JURIST – Student Commentary, August 19, 2020, https://www.jurist.org/commentary/2020/08/ca-bar-exam-cut-score-retroactivity/.
This article was prepared for publication by Brianna Bell, a JURIST Staff Editor. Please direct any questions or comments to her at commentary@jurist.org.
