Another day, another mass primal scream of “Oh, what fresh hell is this?” as PA Bar examinees are faced with more callousness, indifference, and willful ignorance on the part of the PA Board of Law Examiners (PABOLE).
PA bar applicants are in the middle of month 6 of studying for an exam that was supposed to take place in-person in July in a world before COVID. Yet here less than a month before the exam, they are witnessing mounting evidence this bar exam will at best be plagued with technical issues for many examinees and at worst be a catastrophic and, in some cases, possibly career-ending failure. While they are advocating for a better and more equitable legal profession overall, right now here today they were merely asking the PABOLE what their contingency plans were for software failures and examinees who do not have appropriate available testing space in their homes. As with so many times before, examinees were met with callousness, indifference, and firm belief that everything will be fine even while examinees are watching this software burn around them like Cassandra at Troy. The PABOLE responses can be found in a pair of screenshots here and here. It’s worth noting here that the PABOLE has been non-responsive to bar applicants and likely responded here only because these questions were sent by a law professor.
Let’s break down some of those responses and talk about what the PABOLE said and what the reality is that examinees are witnessing:
The PABOLE says that they are not aware of a data breach with ExamSoft. This is very carefully worded. This is not a denial of a data breach having occurred, but instead only a denial of knowledge of a data breach. Did they ask ExamSoft whether a data breach occurred? They then go on to dismiss the concern attributing it to Google Chrome.
In reality, at an absolute minimum, not only was the PABOLE aware of a data breach, they committed one themselves at the beginning of September by providing ExamSoft with partial social security numbers of bar applicants for use as passwords. In addition, one need only search “#ExamSoft” on twitter to see widespread technical issues and software breaches including unclear software responses, scammers impersonating bar applicant friends and family, and tech support outages. To say they are not aware of a data breach is at best willful ignorance and potentially even negligent.
When asked about contingency plans for applicants who might be affected by technical issues, the board demurs and says that this is the same software that has been used in past in-person exams and has a 99% success rate. They also say that the only difference is that the exam is recording via the microphone and webcam.
This statement belies a significant ignorance of technology. First, these are not the same circumstances in virtually any way. Examinees are taking the exam from their homes not a large convention center with stable internet. The board offers no basis for their statement of a 99% success rate, but even if they did, what are the other 1%? Normally that 1% can handwrite the exam. What will happen to that 1% here? Camera and microphone technology is complex saying that an exam is only different because it is recording with cameras and microphones is like saying a horse and buggy is only different from a car because you put an engine in it. The camera and microphone recording will create larger files for upload causing uploads to take longer. The single greatest factor in a successful vs failed file upload is size. The camera and microphone being on for several multiple hour sessions continuously will be significantly more taxing on examinee computers leading to potential issues including overheating. Adding almost anything new to the software before use and thorough testing has the potential to break the software. Adding something as significant as camera utilization is all the more likely to. The board did not even address the possibility that an examinee’s computer could become irreparably damaged on day 1 and be unusable for day 2 and 3.
The board continuously insists that this is the same circumstances as the in-person exam and that access to tech support is irrelevant on exam day because examinees wouldn’t have that option in person. They say history tells them that any issues caused will be because examinees computers will not meet the minimum requirements of ExamSoft, but the camera and microphone utilization have by definition changed the requirements from what past in-person examinees faced. Telling examinees to just buy a new computer is about the same level of callous as when they told examinees to just stop being diabetic for the exam. This is all the more discriminatory when the technology they are so dead set to rely on has been shown to be ineffective at identifying BIPOC individuals or individuals who don’t have access to well-lit high-end office space to take the test in. And again any of these failures in-person would have had the potential to handwrite the exam. Where is the handwriting option for this exam? Protecting the NCBE’s exam copyrights seems like a weak excuse for discriminating against a whole class of examinees.
As to tech support, individuals have tried to utilize ExamSoft’s tech support for the mock exam and have found it generally to be unavailable so what does the PABOLE have to say to examinees who are aware that they have issues based on the performance of the mock exam, but have had no ability to resolve those issues? Should they just give up and take the exam in February? That’s not a financial option for many examinees and the PABOLE most likely signed a multi-year contract with ExamSoft so why should examinees have any more confidence in the stability of this demonstrably unstable software in February?
I could go on, but it’s clear at this point that the PABOLE does not care about examinees. As far as they are concerned, they purchased software and it’s not their problem if it doesn’t work. They can choose to take that attitude, but they are the ones killing the profession. They are forcing out BIPOC and low-income individuals out of callousness and willful ignorance. PA bar applicants are drowning in a sea of debt and COVID and stress and broken technology and are asking only for a lifesaver in the form of any other method of licensure to allow them to survive while the board sits comfortably on their yacht and tells them to just learn to swim.
JURIST carries extended coverage of Bars Exams in the Pandemic.
Tim Zubizarreta is a 3L at the University of Pittsburgh School of Law and JURIST’s Managing Editor. He is interested in labor and employment law, particularly in the technology and entertainment industries.
Suggested citation: Tim Zubizarreta, The PA Bar Exam Is Doomed to Failure and the PABOLE is Fine with That, JURIST – Student Commentary, September 20, 2020, https://www.jurist.org/commentary/2020/09/tim-zubizaretta-pabole-failure/.
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.
