I have never been prouder to be a member of the American Bar Association than today when the House of Delegates voted to stand with law students and recent law graduates to send an important message to state courts and bar examiners – it is simply not safe to give an in-person bar exam at this time.
COVID-19 is real – by the end of this week it will be the fourth leading cause of death in the U.S. By the end of the month, it will be the third-ranking only behind heart disease and cancer. The current COVID death total in the US is 158,000, and deaths are currently increasing at a rate of at least 1,000 per day. This is not the time to accept the status quo and continue with in-person exams, but it is also not a time to delay the pathway to licensure for thousands of recent graduates who are strapped with enormous student loan debt and who can be critical team members in helping to meet the demands of the widening access to justice gap.
It was an honor and privilege to move Resolution 10G introduced by the Virgin Islands Bar Association with co-sponsorship from the ABA Law Student Division, Young Lawyers Division, and the Sections on State and Local Government Law Section, Criminal Justice, and Dispute Resolution. It was supported by other ABA entities including the Tort Trial and Insurance Practice Section (TIPS); the Center for Innovation; the LGBT Caucus; the Minority Caucus; the Standing Committee on Disaster Response and Preparedness; and the City Bar of the State of New York.
The resolution urges the highest court and bar admissions authority in each of the 50 states, the five territories, the District of Columbia, and Native American tribes – to take emergency actions with respect to the admission to the bar and licensure of new attorneys that best fit the local circumstances of each jurisdiction.
First, Resolution 10G urges each jurisdiction to cancel all in-person bar examinations currently scheduled for various dates this fall, and not to administer any other in-person bar examination until and unless public health authorities determine that the examination can be administered in a manner that ensures the health and safety of bar applicants, proctors, other staff and local communities.
Second, and as important, the resolution further urges each jurisdiction as they see best to establish temporary emergency measures to expeditiously license recent law school graduates and other bar applicants. This resolution is not intended to address any peripheral discussions and debates taking place elsewhere about any one bar exam or a future method of licensing lawyers. Rather, the resolution is aimed at finding solutions limited to the public health pandemic when nothing is the status quo. Even the LSAT and the GRE have moved to virtual platforms when they were never offered that way before. The resolution does not choose one pathway to licensure over the other, it merely suggests that states might choose from a menu of options or to come up with other creative methods to get new lawyers licensed in the midst of a public health crisis.
Third, the resolution encourages jurisdictions electing to administer a remote bar examination to implement appropriate safeguards with respect to the reliability and security of the online software; provide reasonable accommodations to all applicants; and disclose plans related to data collection, security protocols, exam coverage, scoring or grading, and portability.
The resolution represents a responsible, sensible statement of policy, that is respectful of local prerogatives and the need for flexibility. Its call for emergency action is contingent on the health emergency until the pandemic subsides. It was imperative that the ABA speak out now with in-person exams scheduled for next month and it is wholly consistent with the Association’s mission which is to serve equally our members, our profession, and the public by defending liberty and delivering justice as the national representative of the legal profession.
By passing the narrowly drawn resolution to address the critical issue of licensing new lawyers in the midst of the worst, and most-deadly public health crisis in our lifetime, ABA delegates demonstrated support for the those who will soon join our ranks – in the same way we would support the members of our own family and law offices – this is resolution is akin to wearing a face mask – we protect others from the rapid spread of the virus by reducing risk. The resolution simply recommends a temporary alteration in the manner in which new lawyers are licensed, just as lawyers have altered daily personal and professional routines – because we have a communal responsibility to protect others. It also sends a strong message that graduates of ABA-approved law schools should not be forced to decide between their health, the health of their family members, and perhaps their lives for the privilege to join the legal profession.
It is likely that a significant number of the delegates in the House are not back at their offices in person, but rather continue to work remotely, as have the courts in many states – and as the House of Delegates functioned Monday and Tuesday. The ABA has never had a remote or virtual House meeting – because the ABA has never had to deal with the challenges of a public health pandemic of the magnitude we face today. Consistent with this Association’s decision to not bring 600 delegates to meet in a large hotel ballroom, the ABA rightfully expressed their opinion that crowds of bar-exam takers should not be brought into large venues to take an in-person exam when there are other options.
Although recent graduates have asked why it has taken the ABA so long to speak out on this issue and why the ABA didn’t act to prevent the July in-person exams, the fact is that the House last met in February pre- the U.S. pandemic. Kudos to the ABA Board of Governors for issuing Resolution 77 in April before the House could meet – urging jurisdictions to admit the classes of 2019 and 2020 to limited practice under certain circumstances. They saw the need for a pathway to licensure then, and Resolution 10G picks up where the Board left off based on what was known in April and what has transpired since then.
Just less than half of the states gave an in-person exam last week. Regrettably, but perhaps not unexpectedly, immediately after the second day the media reported the first COVID Positive test from a bar taker. Who knows what else might be publically revealed by the end of next week. Shamefully, some states have made exam takers sign waivers that they assumed the risk of contracting COVID if they choose to take the exam. This resolution says enough is enough.
The debt load for new lawyers is horrendous. Recent graduates are severely limited in employment opportunities without a license to practice law. And they deserve a reasonably expeditious path to licensure. Some states canceled in-person exams without concurrent announcements of a Plan B. The economic stress, and mental health anguish that this causes soon-to-be lawyers is enormous and unfair. The bar exam should not be a hazing experience. Some law students and recent graduates have already contracted COVID or had family members who did; some law students and recent graduates have family members or financial supporters who lost their jobs as a result of the pandemic; many recent graduates had job offers rescinded or delayed; many in the Class of 2020 completed law school online and most had no in-person law school graduation. The socio-economic struggles of the next group of lawyers to join our ranks cannot be understated. The graduates are in crisis and on August 4, 2020, the ABA heard their advocacy and their request for help and support.
Despite efforts to postpone consideration of the resolution, the House of Delegates knew it could not wait until next February to send an important message that as the representative body of the profession, it is not safe to administer in-person bar exams during this pandemic and that there are acceptable and reasonable temporary alternatives available that Courts and bar examination entities should consider and implement. If only one life is saved as a result of the effort and time to draft, debate, and adopt the Resolution, it was well worth it.
JURIST live-tweeted Tuesday’s ABA House of Delegates meeting. Follow JURIST on Twitter and read our livetweet stream, divided into five parts.
JURIST carries extended coverage of Bars Exams in the Pandemic. See also the JURIST Editorial Board’s July 9 statement on diploma privilege entitled The Diploma Privilege Manifesto.
Patricia Salkin is a member of the ABA House of Delegates representing the State and Local Government Law Section. She is Provost of the Graduate and Professional Divisions of Touro College and former dean of the Jacob D. Fuchsberg Touro Law Center.
Suggested citation: Patricia Salkin, ABA Does the Right Thing and Stands with Law School Graduates in the Midst of the Pandemic, JURIST – Academic Commentary, August 5, 2020, https://www.jurist.org/commentary/2020/08/patricia-salkin-aba-10g/.
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.
