Re: October State Bar Examinations

Dear State Bar Examiners of California, Florida, Illinois, Massachusetts, New York, and Tennessee:

We are writing to follow up on the letter we sent on behalf of 127 public interest legal organizations dated August 11, 2020. Our letter discussed the great need for lawyers to serve marginalized communities during this pandemic and as the November election nears. We also expressed consumer protection and privacy concerns created by online exams, and we raised the inequitable impact of the exam on low-income graduates, graduates of color, and graduates with disabilities. In the past month and a half, our concerns have intensified without adequate action by state bar examiners. As outlined below, law school graduates already have suffered substantial harms in preparing for, and taking, online exams. We are calling on you to take steps to address these concerns swiftly, given the imminence of the exams next week.

First, ExamSoft, the only online bar exam vendor left, has shown itself to be vulnerable to cyberattacks. In July, hundreds of test takers in Michigan were locked out of the online exam and unable to access their passwords due to a “distributed denial of service” cyberattack. The 773 test takers also allegedly could not access ExamSoft’s customer support hotline. The investigation into the cyberattack is outstanding even as ExamSoft claims that it can successfully administer an online bar exam to over 40,000 test takers in 22 states.

Second, ExamSoft has shown that it cannot adequately protect applicants’ personal information. For example, test takers in Pennsylvania reported that financial information, including bank accounts, had been compromised almost immediately after downloading ExamSoft’s software. Relatedly, the same test takers discovered that ExamSoft was apparently unaware that the access codes used to access its software derived from the last four digits of users’ Social Security Numbers. Social Security Numbers can be reverse engineered from the last four digits and publicly available information. ExamSoft’s remote proctoring partner, ProctorU, also experienced a recent data breach. These breaches place test takers at risk for identity theft when ExamSoft has access to sensitive financial and biometric information.

Third, ExamSoft’s AI facial recognition software has had an inequitable impact on test takers of color. Graduates of color have reported that the software fails to recognize their faces under varying lighting conditions, which, in New York, has prevented graduates from completing the mock exam. In response, ExamSoft instructed these students to keep a bright lamp focused on their face for the duration of the exam, which inhibits their ability to focus. In California, test takers will have 10 minutes to resolve issues with the facial recognition software or lose their ability to complete the exam session.

Fourth, despite the risk of great harm to applicants, particularly graduates of color, ExamSoft has disclaimed all liability related to the administration of the exam or software failures. The company also requires graduates to waive both their rights to file a class action and pursue their claims in court. Instead, they are subject to resolution through a private arbitration forum governed by the laws of Texas. Forced arbitration places applicants at a severe disadvantage if administration of the exam fails. Arbitration strongly favors “repeat players” like businesses that regularly hire arbiters. This results in consumers rarely recovering even for legitimate claims of misrepresentation and fraud.

We also reiterate that the administration of online bar exams exacerbates inequities affecting applicants of color, lower-income applicants, applicants with disabilities, and applicants caring for children or family members during a global pandemic. These conditions only compound the stress that test takers have experienced due to ExamSoft’s inability to provide functioning examination software. In the time leading up to the exam, even absent a global pandemic, test takers must have access to a stable internet connection, and a quiet place to prepare for and take the exam. Under current conditions, this is simply not possible for many test takers.

We continue to call on states to grant admission to their respective bars based on receipt of a juris doctorate for the duration of the COVID-19 pandemic. That is the fairest and most reasonable course given current conditions and ongoing administration problems. We are aware, however, that jurisdictions such as yours that continue to administer the bar examination this year are unlikely to take such swift action on the eve of the test. Accordingly, at a minimum, we urge you to do the following:

• Require ExamSoft to rescind its forced arbitration and class action waiver provisions; and
• Collect and publicize race, ethnicity, and gender data on: (i) those who have withdrawn from the October exam; (ii) those who experience technical problems during the administration of the October exam; and (iii) for those who experience technical problems, whether they ultimately passed or failed the exam.

We cannot leave test takers with little recourse, when ExamSoft has already needlessly exposed them to the risk of identity theft. Test takers deserve their day in court for any harm reasonably attributable to ExamSoft. Additionally, as a profession, we have an obligation to consider in light of this data whether administration of a bar exam advances the public interest and furthers the inclusion of graduates of color.

Sincerely,

Jonathan Miller

Legal Director

Public Rights Project