NDLSA Correspondence About the In-Person New York State Bar Exam, February 2022
Dear Governor Hochul, Senate Judiciary Committee Chairman Hoylman, Judith Gunderson (President and CEO of the National Conference of Bar Examiners), Chief Judge DiFiore, T. Andrew Brown (President of the New York State Bar Association), and Members of the New York Board of Law Examiners:
The National Disabled Law Students Association implores you to cancel the in-person February 2022 Bar Exam. Gathering thousands of test takers for a February in-person examination as the Omicron variant infects an unprecedented number of both vaccinated and unvaccinated people is unethical and unsafe.[1] We write this letter out of concern for the safety of all February bar exam candidates, and out of particularly urgent concern for high-risk, chronically-ill, immunocompromised, and disabled examinees for whom taking an in-person bar exam poses a disproportionate and unnecessary hazard to health.
The National Disabled Law Students Association (“NDLSA”) is an organization run by law students, recent graduates, and prospective law students that supports disabled legal professionals before, during, and after their legal education. NDLSA’s mission is to increase disability diversity and visibility in the legal profession which has historically excluded disabled persons from equal access and participation. NDLSA facilitates nationwide peer-to-peer support networks, supports and coordinates advocacy efforts in solidarity with disabled law students, and develops resources to combat systemic ableism within legal education and the profession.
The bar exam is an unnecessary barrier to entry into the legal profession that provides poor insight into one’s competency to practice law. Fortunately, multiple alternative paths to licensure that are less ableist, racist, and classist exist which provide more reliable measure of practice readiness. Such measures include, but are not limited to, practicum and provisional supervised licensure.[2] In reality, claims that the bar exam predicts competency to practice or provides the public protection from malpractice are unsubstantiated.[3] In fact, by reviewing the practice of law in “diploma privilege” jurisdictions, we have actual proof of the profession’s ability to thrive without a bar examination prerequisite for licensure.[4]
The administration of an in-person examination, in no uncertain terms, relays a clear message to disabled and chronically-ill law school graduates and pro-bono scholars: you must be willing to put your life on the line to enter the legal profession. Unlike the Director of the Centers for Disease Control (CDC) Rochelle Walensky, we were not “encouraged” to learn that 75% of COVID deaths in vaccinated people are in individuals with four or more comorbidities. These “high risk individuals” are our members, friends, peers, classmates, and colleagues.
Furthermore, we are alarmed at NYBOLE’s decision to permit unvaccinated test takers to sit for the examination at Albany and Buffalo testing locations—particularly without a mask quality mandate. Allowing unvaccinated examinees to test at these locations places an unacceptable and disproportionate burden on upstate examinees with comorbidities. It also inexcusably places additional pressure on the already overburdened healthcare system in the northern part of the state.[5] We write in solidarity with medical care professionals, and the communities that rely upon their care, in calling out the senseless administration of an examinations under the above stated conditions.
Once more, we call on the addressed parties to cancel the in-person February 2022 bar exam. We are still in the throes of the COVID-19 pandemic; hosting an in-person examination is irresponsible and patently ignores the clear and present dangers that are created by doing so. Minimally, all examinees must be given the option to have the bar exam proctored remotely as was done in October 2020, February 2021, and July 2021. Examinees rely on taking this exam to begin making an income, to receive health care benefits, and to afford necessities like food and rent. An in-person administration, which exposes examinees to unnecessary risk and inexcusably burdens critical local health resources, is clearly not a viable option.
Sincerely,
The National Disabled Law Students Association
[1] The Center for Disease Control has classified New York State as having a “high” rate of community transmission. The current percentage of positive tests is between 10% and 14.9%. See Covid-19 Integrated County View, CDC, https://covid.cdc.gov/covid-data-tracker/#county-view (last visited Jan. 31, 2022).
[2] Deborah Jones Merritt, Marsha Griggs, & Patricia Salkin, Courts Should Look To 3 Bar Exam Alternatives During Crisis, Law360 (Apr. 23, 2020, 4:04 PM), https://www.law360.com/articles/1266791/courts-should-look-to-3-bar-exam-alternatives-during-crisis; Marsha Griggs, An Epic Fail, 64 How. L.J. 1 (2020); Carson Nies, For More Equitable Licensure, Washington State Needs Diploma Privilege, Not the Bar Exam, 20 Seattle J. Soc. Just. 287 (2021).
[3] Valerie Strauss, Why this Pandemic is a Good Time to Stop Forcing Prospective Lawyers to Take Bar Exams, Wash. Post (July 13, 2020), https://www.washingtonpost.com/education/2020/07/13/why-this-pandemic-is-good-time-stop-forcing-prospective-lawyers-take-bar-exams/.
[4] Stephanie Francis Ward, Bar Exam Does Little to Ensure Attorney Competence, Say Lawyers in Diploma Privilege State, ABA J. (Apr. 21, 2020, 9:08 AM), https://www.abajournal.com/web/article/bar-exam-does-little-to-ensure-attorney-competence-say-lawyers-in-diploma-privilege-state. See, e.g., Stephanie Francis Ward, Utah is First State to Grant Diploma Privilege During Novel Coronavirus Pandemic, ABA J. (Apr. 22, 2020, 11:05 AM), https://www.abajournal.com/news/article/utah-first-state-to-grant-diploma-privilege-during-the-coronavirus-pandemic;
Order Approving 2020 Attorney Admissions Process, Sup. Ct. Order No. 20-012 (Ore. June 30, 2020), https://www.osbar.org/docs/resources/SCO20-012Order2020BarExam.pdf;
Order Granting Diploma Privilege and Temporarily Modifying Admission & Practice Rules, Order No. 25700-B-630 (June 12, 2020), http://www.courts.wa.gov/content/publicUpload/Supreme%20Court%20Orders/Order%20Granting%20Diploma%20Privilege%20061220.pdf.
[5] Recently 40 hospitals in New York State had to cancel elective procedures. This includes all 31 hospitals in the Mohawk Valley, Finger Lakes, and Central regions. See Andrés R. Martínez, Number of New York State Hospitals That Must Cancel Elective Surgeries Grows to 40, WION News(Jan. 9, 2022), https://www.wionews.com/world/number-of-new-york-state-hospitals-that-must-cancel-elective-surgeries-grows-to-40-443440.