Why the Kentucky Supreme Court decided to delay state bar exam amid pandemic

On July 13, the Herald-Leader published a letter from two applicants to the Kentucky bar, criticizing the Kentucky Supreme Court’s “uncourageous” decision to postpone the summer 2020 bar exam from July 28-29 to an on-line version offered October 5-6. While the Court understands these and some other applicants’ disappointment at the delay, their letter omits several facts and considerations which led to the Court’s unanimous decision.

The letter’s authors advocate for “diploma privilege,” by which any graduate of an accredited law school is admitted to the bar, absent character and fitness concerns. This privilege is an extreme minority position that prior to the current pandemic was only offered in one state, Wisconsin, and only for graduates from that state’s accredited law schools. Even in the current pandemic, as of July 14, diploma privilege has only been authorized in three states: Oregon, Utah, and Washington. Under Kentucky’s Constitution, the Court is responsible for overseeing the bar admission process. This Court believes that the bar examination serves an important public protection function by testing a minimum level of professional competence. In the most recent three years, the bar passage rate has averaged about 60% for both in-state and out-of-state law graduates. Since a law license is for a lifetime, the letter’s authors seemingly advocate that we, the Kentucky Supreme Court, abdicate our oversight role and turn loose on an unsuspecting public those 40% of bar applicants who, based on recent experience, are arguably unable to satisfy this minimum competence. This we are unwilling to do.

As to postponement of the summer exam from July to October, we admit to a number of poor options. Starting in late March, as the extent of COVID-19 pandemic became clear, we, the Court and Kentucky Office of Bar Admissions (“KYOBA”) staff, began to plan how the July bar exam could be safely given to over 300 applicants, which exam traditionally has been held at one location in one very large room; clearly an untenable model this year. With the generous assistance of Kentucky’s three law schools and their Law Deans, Colin Crawford (UofL), Judith Daar (NKU), and Mary Davis (UK), we developed a plan for using three locations, University of Kentucky, University of Louisville and Northern Kentucky University, to divide the applicants and permit social distancing in multiple classrooms at each location, and to comply with CDC and Kentucky public health guidelines.

Great credit is due the KYOBA staff who worked overtime in this effort. With the recent surge in cases, however, our considerations turned to whether, notwithstanding our planning, safe administration of the July exam was possible for all affected—applicants, their families, and bar and law school staff; whether the Governor would reimpose more restrictive guidelines possibly shutting down July testing, just days in advance; and whether 66 applicants scheduled for a September 2020 sitting of the exam would be permitted to take any 2020 exam. It is important to note that Kentucky, like 48 other states and the District of Columbia, relies on the National Conference of Bar Examiners (“NCBE”) for the standardized portions of the testing materials. The NCBE, in response to the COVID-19 pandemic, devised four testing options: in-person, two-day testing for each July 28-29; September 9-10, and September 30-October 1; and on-line, remote testing for October 5-6.

In light of the available choices, and a) weighing the Court’s public protection role in licensing attorneys, b) providing an avenue for 2020 graduates to take the bar exam currently (albeit not as early as in previous years), and c) considering the COVID-19 pandemic and the health and safety of our applicants, the Court made two decisions. First, the KYOBA will administer the NCBE’s on-line exam on October 5-6, avoiding any applicant’s exposure to other examinees, proctors and KYOBA staff over the course of two days, the most frequently cited health concern. Second, 2020 law graduates, including the letter’s authors who graduated from out-of-state law schools, will have the ability to be temporarily licensed to practice law under the supervision of licensed lawyers. In other words, hopeful law applicants will not be “financially devastated” by the postponement of the July exam, because they can start to work right away, now, before they take the October 5-6 exam.

As to testing Kentucky law, the Court knew that taking advantage of the remote testing option would require jettisoning six Kentucky law specific essay questions but concluded applicants could be exposed to nuances in Kentucky law by other means. In this instance, the KYOBA and the Court will develop interactive, instructional videos that will present significant areas of Kentucky law about which new lawyers in the Commonwealth should be informed. Satisfactory completion of these videos will be a prerequisite to receiving a permanent law license.

Finally, the letter’s authors included a dig at the KYOBA’s director who urged applicants “to ‘take a breath,’ and keep studying.” We hope they study and pass. We will welcome them, perhaps in November, as full members of the Kentucky bar. If they study and fail, their supervised practice will continue through the next administration of the bar exam in February. More importantly, however, we hope they will realize that in life, as in law, subtlety exists and not everything is as cut and dried.

Laurance B. VanMeter is a Justice on the Kentucky Supreme Court and liaison to the Kentucky Office of Bar Admissions

This story was originally published July 16, 2020 at 2:35 PM.