Colorado Supreme Court: Provide an Alternative to the Colorado July Bar Exam
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Dear Chief Justice Coats, Justice Marquez, Justice Boatright, Justice Hood, Justice Gabriel, Justice Hart, and Justice Samour:
We, the undersigned recent graduates of the University of Denver Sturm College of Law and the University of Colorado Law School, as well as present and future members of the Colorado legal community, ask that you consider implementing an alternative to the July Bar Exam in light of the ongoing COVID-19 pandemic. We recognize and appreciate the measures you have put in place to make the Bar Exam safer, but we do not believe these measures are sufficient, nor that sufficient in-person alternatives exist.
Continuing with an in-person examination in the midst of a global pandemic forces students into an impossible choice. For all examinees, and particularly for those who are vulnerable or are living with individuals who are vulnerable to COVID-19, an in-person examination forces examinees to choose between substantially delaying their legal career and risking their lives and the lives of loved ones. Across student communities, examinees are trying to figure out how to ensure their own personal safety and the safety of those around them, and if the bar exam is delayed, how they will continue to provide for themselves. Examinees have to hope that their body temperature does not disqualify them from sitting for the exam and that they will be able to wear a mask for six hours while focusing on a high-stress and time-oriented exam.
We appreciate that these are unprecedented and unpredictable times and each state is responding to a myriad of pressing concerns as best it can, and we also appreciate the State’s need to ensure that new attorneys are competent to practice. Accordingly, the requests detailed in this letter are not an attempt to cut corners and take advantage of a pandemic; rather, this letter requests that the leaders in the Colorado legal community consider more practical and humane options to protect the newest members of Colorado’s legal profession. To explain the necessity of such alternatives, below we have enumerated 1) the reasons why it is essential that the July bar exam be canceled; 2) alternatives to holding a July bar exam; and 3) a summary of what other states have done in light of the deadly COVID-19 pandemic. We thank you for your time and consideration.
Dangers, infeasibility, and policy considerations justifying an alternative to the July Bar Exam:
● COVID-19 is once again on the rise and is spreading rapidly. On June 29, 2020, the head of the World Health Organization stated that “the worst is yet to come.” The European Union has closed its borders to Americans, finding the United States to not be a “safe country.” Dr. Anthony Fauci stated on June 30, 2020, that the number of COVID-19 cases could rise to 100,000 per day. It is only a matter of time before Colorado begins to see these effects firsthand, as other states have, such as in Texas, where Intensive Care Units (ICUs) are already at or near capacity. It is unlikely that the spread of COVID-19 will slow by the end of July, in the late summer, or even in the fall. Gathering in groups, such as testing centers, will put lives at significant risk through the remainder of 2020. Indeed, some are already wondering whether Bar Exam testing centers will be future hotspots for the spread of COVID-19.
● This Court has recognized that it is too dangerous to hold jury trials until at least August. Following this rationale, it is logically incongruent to maintain the position that requiring students to sit in testing centers for two days in July is any less dangerous. This Court has postponed jury trials five times since the beginning of the COVID-19 pandemic, first until April, then May, then June, then July, and now August. There is no reason to think that these repeated delays will not play out for the bar exam. This Court has noted the bar exam could be delayed until February of 2021.
● On July 1, 2020, the Bar Exam Administrators announced that due to COVID-19, they will not mail hard copies of admission badges, and instead are providing them electronically.
● Similarly, on June 30, 2020, the Sturm College of Law recognized both the fluidity and the danger of the current situation. In an email to students, the Dean of Academic Affairs stated that Sturm was “anticipating” providing both online courses and hybrid online/in-person courses, but that such formatting decisions would be on an ongoing basis and in light of a number of concerns, including the safety of the community and guidance around public health.
● The continual—but necessary—postponement of the bar is economically, psychologically, and emotionally unfeasible for bar takers. Graduates, most of whom are studying full time, cannot do so indefinitely, nor can we feasibly study and make enough money to feed and house ourselves on the wages most law firms provide to interns or those without a law license. (The average law school student graduates with $107,000 of debt.) The bar exam is anxiety inducing and emotionally taxing on its own, but the added uncertainty of when, or if, we will take the exam, and that we may have to risk our lives to do so, is unjust.
● Postponing the bar until the fall or canceling the bar and requiring 2020 graduates to take the February 2021 bar is equally unfeasible. First, as mentioned above, COVID-19 is almost certain to continue to ravage the United States during the fall and it will be too dangerous to require students to sit in close proximity to one another for two days during the fall months. Second, to require both May 2020 graduates to wait to sit the bar until February 2021 could have significant long-term consequences for our professional careers, and as discussed above is economically and emotionally unjust.
● Contrary to the fears of some, providing a diploma privilege or an alternative to an in-person bar exam will not result in a generation of inadequate lawyers. Students have met all the requirements of their respective and highly ranked law schools, most have passed the MPRE, and at this point have sunk hundreds of hours into preparing for the bar exam. Most, if not all, attorneys will attest that the bar exam has no correlation or causal effect in producing competent attorneys; brilliant attorneys have failed the bar and incompetent attorneys have passed the bar with flying colors.
● The Colorado Supreme Court now has the opportunity to reexamine the efficacy of the bar exam. The bar exam was created not as a means of ensuring attorneys were adequately prepared to practice law, but as a barrier to entry for people of color and others whom the legal community found to be unsavory. Currently, the bar exam disproportionately favors those with the economic means to study exclusively for three months as well as those who grew up with the resources to be trained in how to effectively sit for standardized testing.
● There is a growing need for attorneys as court dockets become backlogged, evictions begin to rise, and other legal ramifications of COVID-19 continue to multiply and permeate all areas of law. Now is an excellent opportunity for graduates to put their legal training to work on behalf of those clients and communities, whether for individuals, businesses, or the state, that need such support. This demand will only grow over the coming months.
Alternatives to the Bar Exam:
● Provide diploma privilege to all graduates of the 2020 classes of the University of Denver Sturm College of Law and the University of Colorado College of Law who have applied for the July 2020 bar and have passed the character and fitness requirements.
● In line with the steps that other states have taken, we support equitable alternatives for out-of-state applicants seeking to join the Colorado Bar.
● Hold a one-day remote bar exam.
● Require graduates to practice for a set number of hours under the guidance of Colorado attorneys in good standing.
What other states are doing:
● Utah adopted a 360-hour supervised practice approach to licensure, which is limited to graduates of ABA-approved law schools with an 86% first-time taker bar pass rate (which both Utah schools meet).
● Washington State (which already had reduced the passing score on the UBE from 270 to 266) granted a diploma privilege to all registrants, including those who previously had failed the bar exam (despite the fact that the July 2019 Washington Bar Exam pass rate was 68.5%).
● Washington, D.C., adopted an October remote administration.
● Indiana adopted a one-day remote bar exam that will include the Indiana Essay Examination and a series of short answer questions on topics covered on the MBE.
● Louisiana decided on a one-day exam, which can be taken remotely, which covers a reduced set of topics.
● Maryland announced a remote exam in October.
● Michigan adopted a one-day online essay exam.
● Nevada adopted a remote exam consisting of essays and an MPT.
● Oregon has provided diploma privilege to its students as well as providing diploma privilege to out-of-state applicants who graduated from an ABA accredit law school with an 86% first-time taker bar pass rate.
● Wisconsin has, and continues, to offer diploma privilege to its law school graduates.
● The Texas board of examiners will advocate that the July Bar Exam should not be held, and the debate about alternatives is ongoing.
● Florida has canceled their July Bar and will be offering a single-day online exam in August.
● Minnesota is currently in deliberations as to whether to waive the Bar Exam for in-state graduates.
● Other states are in the process of reconsidering what to do in light of the surge of COVID-19 cases nationwide.
We welcome alternatives to the July bar that are safe, feasible, and do not leave open the possibility of additional delays. We are eager to join Colorado’s legal community and begin our careers. As the July Bar Exam approaches quickly, the time for a decision is now, and for this reason we have reached out to you directly. Below are our signatures as well as the signatures of members of the legal community, including professors and legal professionals. Since our very first days of law school, our community has taught us that we are joining a noble profession; we hope you prove this sentiment to be true.
 Wisconsin, which also has just two law schools, has provided diploma privilege for decades and produce competent attorneys nonetheless.
 The majority of this list was adopted directly from the Texas Law Deans letter to the Texas Supreme Court.
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