July 30, 2020

John J. McAlary, Executive Director 

Mark Kaplowitz, Senior Attorney 

Dianne F. Bosse, Chair

Bryan R. Williams, Board member & NCBE Diversity Issues Committee Chair

New York Board of Law Examiners

254 Washington Ave Ext 

Albany, NY 12203

CC: Senator Brad Hoylman; Chief of Staff Burton W. Phillips; Assemblymember Jo Anne Simon, Esq.; BBI Chairman Peter Blanck; Dean Trevor Morrison; Dean Gillian Lester; Dean Matthew Diller; Dean Eduardo M. Peñalver; Dean Elena B. Langan; Dean Michael A. Simons; Dean Charles N. Todd; Interim Dean Christopher Alan Bracey; Dean Designate Dayna Bowen Matthew; Dean Craig M. Boise; Dean Michael T. Cahill; Dean Aviva Abramovsky; Dean Angela Onwuachi-Willig; Dean John F. Manning; Dean Vincent D. Rougeau

RE: Online Bar Exam Accommodations Policies and Procedures

Dear Director McAlary:

On July 29, 2020, the BOLE communicated via web post and email that applicants with disabilities requiring new or additional accommodations as a result of the exam being moved online must submit new documentation by Friday, August 7, 2020.  NDLSA writes to express our concern regarding the BOLE’s announcement as this deadline is unreasonably restrictive in duration, and the process unduly burdensome. Your processes and procedures, as they currently stand, will screen out, and thus discriminate against, exam takers with disabilities (i.e. non-standard testing accommodation recipients), in addition to persons in need of administrative accommodations. 

The board must seriously consider the concerns presented by bar candidates. We have attached a report to this email on the results of a survey we administered this past week. Between July 24th and July 28th, the National Disabled Law Students Association (NDLSA) received responses from 281 individuals, of whom 260 were registered for a 2020 remotely proctored bar examination, expressing accessibility concerns responsive to both the policies that various jurisdictions have released and prior experiences with online examination administrations. It is crucial the NY BOLE staff review the report to fully understand the impact of their decisions on candidates. 

We urge you to heed the following concerns and recommendations:

1. Extend the NTA application deadline (see explanation and timing recommendations below).
2. Create a new administrative accommodation form specifically for the online exam. 
3. Release all information regarding restrictions, limitations, and logistics so that applicants can submit meaningful accommodations applications.
4. Timely decide on any pending appeals or applications.
5. Refrain from using “Artificial Intelligence” to proctor exams.
6. Eliminate the requirement for additional medical documentation where applicants have already provided medical documentation supports, but may not explicitly mention, applicants additional requests.
7. Eliminate the policy prohibiting the use of physical scrap paper.

BOLE has not yet released the full scope of technological restrictions for the online administration of the bar exam, nor have you rendered final accommodation determination to persons with pending appeals. We request that the deadline for accommodations run for a minimum of one month, not to begin before (1) the BOLE releases all information regarding restrictions and conditions associated with the online exam and (2) all candidates receive final accommodation determinations from their appeals. 

1. It is unconscionable for the board to only provide examinees one week to submit accommodations applications.  

First, the August 7, 2020 deadline for general applicants should not be the same deadline for NTA or administrative accommodation requests. To do so is unreasonable and will screen out candidates with disabilities, and thus should be extended until August 31, 2020. 

Medical documentation requests take time, as does your lengthy application which requires notarization. Doctors are currently preoccupied, and staffing is not typical given the COVID-19 public health emergency, causing further delays in communication with doctor’s offices. Notarization also takes time to accomplish, even when a global pandemic does not limit notarization options. Examinees were not promptly or meaningfully notified of this new accommodations deadline. Between the initial announcement of the NY Bar exam going online and the new accommodation deadline, applicants have less than two weeks to secure medical documentation from providers that may not be able to see them, particularly in the middle of a pandemic where medical care is strictly limited. 

Additionally, given the idiosyncratic nature of this exam, examinees are unlikely to have evaluations that support newly needed accommodation requests. For example, under standard conditions, an accommodation is not needed for on-the-clock bathroom breaks, looking away from the computer, and movement of one’s body. 

Health insurance often does not cover the testing that you require to support accommodation requests. As a result, many examinees have already spent a considerable amount of money to confirm their medical documentation to meet your requirements to request accommodations for the standard administration. The Board must not require additional testing or appointments that result in increased cost to disabled applicants. 

Due to COVID-19 restrictions, many practitioners have limited appointment availability. Additionally, attending in-person appointments puts examinees at greater risk of contracting COVID-19, which could be deadly, particularly for examinees with disabilities who are more likely to be high risk or immunocompromised. 

2. Create a new administrative accommodation form specifically for the online exam. 

The Board did not include information regarding administrative accommodation application procedures. To correct this omission, we suggest that the board produce a simple form, similar to the BOLE’s “Administrative Accommodation Request Form” or the “Massachusetts Board of Bar Examiners Request for Special Arrangement for a Health-Related Condition” form (attached) for applicants to request administrative accommodations (i.e. accommodations that do not change the format or timing of the exam) without submitting extensive documentation. 

An administrative accommodation form is needed by disabled and non-disabled test-takers who would not require accommodations but for the format change. If the exam were offered in-person, candidates experiencing bowel or urinary disorders, pregnancy and its postpartum effects, menstruations, or symptoms of illness would be permitted to sign out during the exam to use the restroom or a lactation room and would not require a doctor’s note to do so. 

Additionally, the online administration creates new barriers for candidates who must use their bodies in particular (but not necessarily peculiar) ways. For example, people ordinarily touch their faces, fidget, or look off-screen to avoid eye strain or as part of the cognitive processes. Some people can abate those behaviors, but many, especially those with certain medical conditions, can not. Those persons should not be punished or subject to emotional and laborious burdens simply because you changed the format of your exam. 

Lastly, there are practical situations born of the COVID-19 pandemic that restrict the ability of applicants to take this exam at home in a space free of additional persons. Parents, especially, may not be able to find child care or effectively keep children out of the room for several hours.

None of the aforementioned conditions require extensive medical intervention and, as such, should not need to be accompanied by medical attestations. Personal statements are more than sufficient to substantiate these types of requests and are recognized forms of documentation under federal law. 

The procedure announced today would have these persons fill out an NTA or administrative accommodation request form requiring unnecessary and burdensome medical documentation. This is unnecessary and unduly burdensome. In sum, BOLE must create a new form offering a reasonable and practical path to accommodations to circumvent the current limitations entailed by BOLE’s online administration procedures.  

3. The board has not provided the requisite information candidates require to meaningfully request accommodations.

BOLE’s July 29, 2020 email only communicates a partial list of restrictions, does not announce how applicants will be monitored, and explains that more restrictions will follow. More specifically, the email notifies candidates that they must  “stay within full view of the webcam during the entirety of each 90-minute exam session,” and are prohibited from “tak[ing] any breaks for any reason during any session” or using physical scrap paper. Applicants need to be notified of any other significant restrictions (such as those issued by other jurisdictions), including restrictions on earplugs, extraneous noise, presence of other individuals or pets, eye movement, or stimulation behaviors (e.g., fidgeting, touching one’s face, touching one’s hair, picking at skin or nails, or biting one’s nails). 

The board must release all information regarding the restrictions and limitations it will require for the bar examination in order for examinees to meaningfully request accommodations. 

4. Persons with pending appeals have not received their accommodations yet, and thus can not submit a meaningful supplementation request. 

BOLE has not rendered accommodation appeal decisions to many examinees, making supplementation requests impossible. Your email specifies that these decisions are coming mid-August. It is impossible to supplement a decision that does not yet exist. Any examinee who receives an appeals decision mid-August must receive at least a three week appeals period from the date your decision is communicated. 

5. Requiring “updated relevant medical documentation to support the new accommodations” is unduly burdensome and likely, not compliant with ADA regulations. 

The BOLE should not require additional medical documentation if an accommodation request has already addressed the matter directly or the request is logically supported by documentation already on file. If a candidate already has medical documentation on file, a personal attestation about how their previously disclosed disability is exacerbated under these altered testing conditions should be considered sufficient documentation. Under the ADA, a personal attestation of how disability impacts an individual, based on that individual’s personal lived experience, is considered a reputable form of documentation, particularly when paired with diagnosis confirmation.  

5. The use of AI software is unethical and reinforces systemic discrimination within the legal system.

BOLE recently announced that ExamSoft (a vendor recently subjected to cyber-attack disrupting Michigan’s bar exam) will administer the examination. We implore you not to use their Artificial Intelligence (AI) functionality in proctoring. The use of AI-assisted proctoring is unconscionable for security reasons and subject to programming bias that places Black candidates and disabled candidates under increased scrutiny. The risk of bias is not eliminated through human re-examination of flagged behaviors.

The use of AI to flag “abnormal” movement for cheating is especially troubling. Applicants with disabilities are more likely to express “abnormal” movements due to the varied needs of their bodies. For example, persons with Autism Spectrum Disorder are likely to engage in stimulation behaviors and persons with chronic pain disorders may need to move frequently or engage in self-massage or stretching, which will trigger a “flag” on their test administration. 

Indiana and Nevada have recognized the unacceptable risks of AI proctoring: the software is likely to crash under the strain of a high number of simultaneous users and uses invasive surveillance techniques. These jurisdictions are holding an open-book exam, eliminating the need to use AI proctoring software. The BOLE already administers the NYLE in this manner, and the Bar Exam, under these unprecedented circumstances, should be no different. 

6. Allow candidates to use physical scrap paper.

Prohibiting the use of physical scrap paper is a fundamentally unfair policy for any candidate, regardless of disability status. Candidates train for the exam under the valid assumption that they will be able to write out diagrams and make notations. This issue is particularly pertinent to the MPT. Without outlining, highlighting, and notation, it becomes a senseless demonstration of working memory rather than actual skill. Handwriting is a significantly different modality than typing. All major test prep companies train examinees using physical scrap paper techniques that will not translate to virtual scrap paper. Virtual scrap paper is not an equitable replacement for actual scrap paper.

Thank you for taking the time to consider the concerns of the National Disabled Law Students Association. We hope you seriously consider our recommendations and avert screening out, and thereby discriminating against, applicants with disabilities from your online examination. 

Yours,

The National Disabled Law Students Association

Contact: info@ndlsa.org 

Tara Roslin, J.D.                   

NDLSA, Director of Research           

Boston University School of Law ‘20

Jeremy Wertz, J.D.           

NDLSA, Co-President       

Harvard Law School ‘20

AJ Link, J.D. 

NDLSA, Co-President

The George Washington University Law School ‘20

Rachel Laing, J.D.

NDLSA, Research Assistant

Boston University School of Law ‘20