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Potential Discriminatory Issues with Online Bar Examinations

Recent law school graduates taking the bar examination faced significant stressors this year. In many jurisdictions, the examination dates changed at least once. Many states opted for an online version of the exam for the first time. Anecdotal reports from these exams suggest that it went smoothly for some graduates. However, some women and individuals of color experienced significant issues.

A Chicago law student who went into labor during the exam garnered the biggest headlines. To prevent possible cheating, the online software prohibited bar takers from moving outside of the camera’s field. This student completed her first day of exams while having contractions. She had her baby that evening and then took the next day’s exam from a hospital room. This circumstance was unusual. Less unusual were the examinees who had menstrual issues or wore diapers because they were only permitted to use the bathroom during breaks. One woman reportedly began bleeding in the middle of the exam; she ultimately withdrew from the exam because she had to address it.

ExamSoft made the software most used for online bar exams. Last summer when the software was first used, individuals with darker skin colors reported difficulty being recognized. The ACLU sent a letter expressing concern about this issue to California’s Supreme Court just days before California’s October exam. The ACLU put the Supreme Court on notice that the software would have “discriminatory impacts” because of its “inherently biased” facial recognition technology. Disabled students may also have experienced discriminatory impacts from the exam. The New York Times reported about individuals with disabilities who chose not to take their examinations online because of fear. They were afraid of being accused of cheating for moving too much off-screen, something that individuals with certain disabilities could not easily avoid. The accommodation process varies by jurisdiction but can be burdensome.