Hello everyone!

Lt. Gen. Paul Ostrowski (Ret.) is the Director of Supply, Production & Distribution of Operation Warp Speed. He said in a TV interview today that vaccines will roll out over several months. He said that “100% of Americans that want the vaccine will have vaccine by that point in time [June 2021]. We will have 300 million doses will be available to the American public well before then.”

I’m a lawyer, not a medic, and not a public health expert. I know that there are anti-vaxxers out there. So the question is this: if Lt. Gen. Ostrowski is correct and millions of Americans (not all of course) are taking the available vaccines, will that persuade Governors to allow in-person bar exams for July 2021?

I’d still put the odds at 50/50, if not worse for the following reasons. If vaccines will be available in June 2021, people need to take them and that takes time. Then a Governor needs to see that all that vaccinating is going on. Then more time will go by and a Governor will need to make a decision. And if the logistics behind an in-person exam require that certain things must occur by April or May to make a July Bar Exam happen — not saying that’s true, I don’t know — then June vaccine availability will be too late to make an in-person exam happen.

As of November 30, 2020, it seems that a remote exam for July 2021 seems more likely.

One other thing to keep in mind. What is the prevailing sentiment from the Cal. Supreme Court about remote v. in-person exams? From the Cal Bar? Maybe the Cal Bar says we’ve saved tons of money from room rental fees (though I doubt it since applicant fees are presumably paying for all of that) or saved time/money for other logistics that they are happy with a remote testing environment and don’t want to change it?

Or what if students like the idea of not having to go outside of their house to take the exam? What if they like taking a rest between questions or not having to get a hotel or fly somewhere (especially for out of state or international students) to take the test? What’s the prevailing sentiment?

My guess is that the Cal SCT and the Cal Bar like the idea of the old status quo. Maybe some students with necessary accommodations might be able to take the exam from home? But otherwise, I’m confident that we’ll be back to an in-person exam environment for sure by February 2022. July 2021? Maybe. I would think it’s likely if vaccines were widely distributed by March 1 or so and that people took them and positivity rates dramatically declined by April 1. That might give enough incentive to a Governor to allow in-person testing and allow a Board of Bar Examiners enough time to logistically make it happen.

We shall see!

Note the interesting stuff:

1) the NCBE will equate the MBE, so that means that states like California don’t need the psychometrician or whoever they used to help make the MBE a reality for October 2020, and

2) Do we have 100 questions again for Feb. 2021? Or 200? Nobody knows. We shall see!

3) 3 states have already signed up for the online option (NY, Connecticut, and one other).

From the NCBE’s site:

NCBE Announces Initial Plans for Remote Option for February 2021 Bar Exam

NCBE today announced initial plans that will allow jurisdictions the option to provide the bar exam remotely in February 2021, since challenges related to COVID-19 will likely still be present next year. More details will be provided in the coming weeks.

To provide flexibility to jurisdictions and candidates as we all continue to navigate the challenges of the COVID-19 pandemic, NCBE plans to make a full set of bar exam materials available for a remote administration in February 2021 to be held on the same dates as the in-person administration (February 23–24, 2021). Each jurisdiction will select which mode it will use for its administration.

NCBE plans to equate the MBE, calculate scaled scores for the written components, and provide UBE and MBE score transfer services for both the in-person and the remote administrations.

Additional details will be announced in the next few weeks as jurisdictions and NCBE complete their review of the October remote administration, which was the first time the bar exam has been given to candidates testing in their own environments using their own computers.

As usual there will be a score band within which some applicants will receive a second read. The Bar posted this within the last 24 hours. Here’s the info:

Phased Grading

All written answers submitted by applicants who completed the exam in its entirety are read at least once before pass/fail decisions are made. Based on the results of empirical studies relative to reliability, scores have been established for passing and failing after one reading of the exam. For applicants whose scores after the first read are near the required passing score, all answer books are read a second time, and scores of the first and second readings are averaged. The total averaged score after two readings is then used to make a second set of pass/fail decisions.

To pass the examination in the first phase of grading, an applicant must have a total scale score (after one reading) of at least 1390 out of 2000 possible points. Those with total scale scores after one reading below 1350 fail the exam. If the applicant’s total scale score is at least 1350 but less than 1390 after one reading, their answers are read a second time by a different set of graders. If the applicant’s averaged total scale score after two readings is 1390 or higher, the applicant passes the exam. Applicants with averaged total scale scores of less than 1390 fail the exam.

Brief statement on the Bar’s Admissions page: “The Supreme Court will issue a final determination on the status of the fall 2020 bar exam the week of July 13.”

Two lingering questions beyond the date of the test:

1. If it’s true that neither NCBE nor the Cal Bar will scale the MBE to the written exam, why would anyone use the MBE on the fall Cal Bar Exam?

2. Will the Cal Bar extend the exam by one day to allow everyone to take the PT at the same time, thereby allowing people to print the Library and the File and eliminate the possibility of cheating on the test? Will the Cal Bar concede that nobody can cheat on the PT as long as it is held at the same time for everyone?

   Scaling question: what’s the bigger scaling concern: the ability to scale the MBE to the written portion of the test? Or the ability to scale the PT given that, if students can’t print the Library and File on the PT, then applicants are taking an artificially different test?

Hello everyone.

The June 2020 Baby Bar came and went. The anecdotal evidence about the online-deployable MBE from the Baby Bar is this: technologically, the MBE went fine on June 23, 2020.

So what does that mean to the September 2020 Cal Bar applicant pool?

Remember what the Cal Supreme Court wrote two weeks ago today:

The court is grateful to learn that the National Conference of Bar Examiners (NCBE) will offer an online-deployable version of the multiple choice Multistate Bar Examination (MBE) on October 6, 2020. As the State Bar is aware, the administration of the MBE is an essential component to scoring the entire two-day exam. Although the court had originally postponed the July 2020 California Bar Examination to September 9-10, 2020, the court will consider moving the exam to October 5-6, 2020 after the State Bar assesses its online administration of First-Year Law Students’ Examination on June 23 AND the feasibility of upscaling that administration to the full exam in the fall. (emphasis mine).

So we have a 2-factor test here: 1) let’s see how the Baby Bar goes, and 2) is it feasible to upscale an online-deployable MBE to the written portion so that an October exam could take place.

The first factor (anecdotally at least) has been established: the online MBE on the Baby Bar Exam went fine.

The second factor? It’s complicated.

The Cal Supreme Court wants to see if it is feasible to upscale the online MBE to the written section of the exam. If this factor is met, then welcome to the October 5-6 Cal Bar Exam. If not, then the exam should take place in September and then the question is what form will the exam take.

My understanding is that over the last 25 years (at least), the Cal Bar has allowed the NCBE to upscale the MBE to the written portion of the exam. IF that’s true, then we have a problem. Note the final paragraph of NCBE’s post on June 1 about the availability of an online-deployable MBE exam:

Jurisdictions will be responsible for scoring the tests and interpreting candidate performance. NCBE will not equate the MBE portion or scale scores from the written portion of the test to the standardized MBE portion as we would do for the standard, full-length bar exam. Without further research, scores from an abbreviated version of the MBE administered by remote testing cannot be considered comparable to the standard, paper-based, full-length MBE administration, such comparability being an essential requirement for equating and scaling. (emphasis mine)

So… the NCBE will NOT do the upscaling that the Cal Supreme Court wants. Question: Does the Cal Bar know how to, or would be willing to, do the necessary upscaling that the NCBE typically does? I don’t know the answer. The Cal Bar’s “Report to the Supreme Court on the February 2020 California Bar Examination” says on page 3 that the scores on the written portion of the exam “were scaled to the MBE, i.e., the written scores were converted to a score distribution that has the same mean and standard deviation as the MBE score distribution.” Cool. But WHO does that scaling? The Cal Bar? Or the NCBE? That’s the big question.

IF the Cal Bar does that scaling, welcome to the October exam, seemingly. And by the way, note the language about “abbreviated version” and not comparable to the “full-length” exam. Sounds like if we have an October exam, we will have fewer MBEs on that exam. How many fewer? No idea.

But what if the Cal Bar doesn’t know how to, or is unwilling to do so? Then it seems that the October exam can’t occur, and we keep the September exam.

Then we ask: what form does the September exam take?

Can’t use the MBE based on the above, right? Argument for somehow finding a fully scaled MBE that the Cal Bar somehow miraculously has on hand?

From the Cal Bar’s letter to the Cal Supreme Court on April 15 (page 4, note 2): One option considered during the State Bar’s study process included the possibility of administering only the California-specific written portion of the California Bar Exam in an online format, foregoing the MBE. However, following a discussion with the State Bar’s psychometrician the Bar was convinced that both the written component and the MBE must be administered and graded to ensure the integrity of the examination, and that the scaled scoring is valid and reliable. (emphasis mine)

Two problems with this approach: 1) if the necessary upscaling referenced above can’t take place, then there’s no MBE exam to give in September, and 2) the psychometrician evidently has never seen the Cal Bar Attorneys’ Exam. There has been a one-day Attorneys’ Exam in California since February 1990. The Cal Bar has conducted 61 Attorneys’ Exams in California. 61. Evidently those 61 exams were psychometrically valid, properly scaled exams. Otherwise they would not have been allowed to be administered.

Bottom line: I don’t know if the Cal Bar can upscale the NCBE’s online-deployable exam. If not, I would think we keep the September 2020 Cal Bar Exam date and have a one-day Attorneys’ Exam, or we have a 2-day exam with 3 essays and a 90-minute PT on Sept. 9, and 3 essays and a 90-minute PT on Sept. 10.

What about other states that are similarly situated? Indiana, Michigan and Nevada said “no way” to the NCBE’s online-deployable exam and are conducting a one-day exam similar to the Cal Bar Attorneys’ Exam. In contrast, Washington, D.C. has chosen the October 5-6 exam with fewer essays/PT and a shorter MBE exam.

My hope: whatever decision the Cal Supreme Court chooses to make, please make that decision before July 1. You have already had two weeks since the June 10 Cal Supreme Court’s letter to think about the few permutations we have here. You know what you want to do. Don’t waste time. Decide by July 1 so we can all move forward.

We shall see what we shall see.