COMMONWEALTH OF MASSACHUSETTS

SUPREME JUDICIAL COURT

SUFFOLK, ss. No. SJ-2020-

RACHEL DAVIDSON, JORDANA DOUGLAS, SAMUEL FEIGENBAUM,

BRIANNA PATON, NATALIA PENA, and HANNAH N. PERLS,
Petitioners

v.

JUSTICES OF THE SUPREME JUDICIAL COURT,

Respondents

EMERGENCY PETITION FOR RELIEF PURSUANT TO G. L. c. 211, § 3

In re: Emergency Waiver of the Bar Exam Requirements for Admission to the Massachusetts Bar
and Provision of an Emergency Diploma Privilege Option

SAMUEL FEIGENBAUM, pro se RACHEL DAVIDSON, pro se HANNAH N. PERLS, pro se

BRIANNA PATON, pro se JORDANA DOUGLAS, pro se NATALIA PENA, pro se

 INTRODUCTION

To mitigate the dramatic disparities that will result from the administration

of an unproven online Massachusetts Bar Exam, currently scheduled for October

2020, Petitioners ask this Court, pursuant to its inherent authority over the

Massachusetts Bar and its superintendence powers under G. L. c. 211, § 3, to adopt

an emergency diploma privilege option, conditioned upon any additional

educational or supervised practice requirements that the Court deems necessary

(“diploma privilege plus”), and to adopt appropriate relief measures for those

applicants who prefer to take the bar exam.

To date, over 640 law school students and graduates, law school deans, law

school professors, and legal practitioners have publicly urged this Court to adopt a

diploma privilege option.1 While this Court has, in the course of its substantive and

thorough engagement with this issue, thus far declined to do so, the facts on the

ground have changed considerably in the past two weeks: in particular, three states

have attempted to administer online bar exams, and none has done so successfully.

The cumulative impacts of the COVID-19 pandemic are widespread,

disparate, and ongoing. Faced with these challenges and the inevitability of

administering an inequitable bar exam, the supreme courts of Utah, Oregon,

1Letters from Students and the Legal Community in Support of Massachusetts

Diploma Privilege (July 10, 2020) (Exhibit 14).

1
Washington, and Louisiana have each adopted some form of diploma privilege.2 As

Chief Justice Johnson of the Louisiana Supreme Court explained, “This COVID-

19 crisis is unprecedented, and it calls for unprecedented and bold action, including

implementation of today’s Order granting one-time emergency admission to the

Bar with additional requirements.”3

Administering an untested online bar exam this October risks distinguishing

students not by their level of competence and preparedness, but by their level of

privilege. Applicants most at risk to fail will be individuals lacking access to quality

internet and quiet spaces where they can study; individuals forced to seek

temporary employment because the unanticipated two-month delay in

examination date has stretched many of them beyond their careful financial plans;

individuals who contract COVID-19, or who must care or mourn for loved ones

who have fallen ill or died from COVID-19; and individuals with disabilities. To

avoid this outcome, Petitioners respectfully request that this Honorable Court:

2 See Order by the Supreme Court of Louisiana (La. July 22, 2020) (Exhibit 2);
Order Approving 2020 Admissions Process, No. 20-012 (Ore. June 30, 2020)
(Exhibit (4); Order Granting Diploma Privilege and Temporarily Modifying
Admission Practice & Practice Rules, No. 25700-B-630 (Wash. Jun. 12, 2020)
(Exhibit 5); Order for Temporary Amendments to Bar Admission Procedures
During COVID-19 Outbreak (Utah Apr. 21, 2020) (Exhibit 6); Wis. Sup. Ct. R.
40.03 (1979).
3 Press Release, Louisiana Supreme Court, Louisiana Supreme Court

Announcement Regarding 2020 Bar Examination (July 22, 2020) (Exhibit 3).

2
 1) adopt a one-time, emergency diploma privilege plus option for applicants,
including any additional educational or supervised practice requirements
as this Court deems necessary;
2) adjust the cut-off score for applicants who choose to sit for the online bar
exam in order to reflect the unique hardships posed by the COVID-19
pandemic; and
3) adopt rules that safeguard applicants who sit for the online bar exam from
being penalized, e.g. losing time on the bar exam or having to wait until
the February 2021 administration, for loss of internet or other
technological issues out of their control; and
4) adopt rules for the online bar exam that do not necessitate the usage of
facial recognition technology or remote proctors.
These emergency measures will mitigate the gross disparate impacts likely to

result from the administration of an untested online bar exam in the midst of a

pandemic, ensuring the timely and just admission of qualified and competent

applicants to the Massachusetts Bar.

PETITIONERS

Petitioners are first-time applicants who are currently registered for the

Massachusetts Bar Exam.

THIS COURT HAS INHERENT AND STATUTORY AUTHORITY

TO GRANT THE REQUESTED RELIEF

The Supreme Judicial Court “retain[s] the inherent and exclusive

jurisdiction over any decision to admit an attorney to the practice of law in this

Commonwealth.”4 This Court's “inherent power [over matters of bar

4 Jia v. Board of Bar Examiners, 427 Mass. 777, 782 (1998).

3
administration] is reinforced by the extraordinary powers, conferred by G.L. c.

211, § 3, of general superintendence over the courts of this Commonwealth.”5

Supreme Judicial Court Rule 3:01 generally requires passage of the bar

exam to obtain attorney licensure for applicants not already admitted to practice

law in another jurisdiction. However, this Court possesses “the equitable power to

waive a particular requirement of a court rule concerning admission to the bar.”6

THIS COURT SHOULD ADOPT AN EMERGENCY DIPLOMA PRIVILEGE OPTION

I. Applicants Face Significant Hardships, Which Impede Their Ability

to Prepare for the Bar Exam

Throughout the COVID-19 pandemic, applicants have suffered and

continue to suffer significant hardships that undermine their ability to adequately

prepare for the bar exam. Over 190 individuals who plan to sit for the bar exam

responded to an impact survey, the results of which demonstrate that:

● At least 49% of applicants surveyed plan to work full-time or part-time

while preparing for the bar exam; 83% of those working report that
their need to work is due to the financial uncertainty that COVID-19
and delays in the bar exam have caused.
● 82% of applicants surveyed have debt from law school; 75% of
applicants surveyed have debt of $50,000 or greater.

5 Marino v. Tagaris, 395 Mass. 397, 401 (1985).

6 Mitchell v. Board of Bar Examiners, 452 Mass. 582, 586 (2008).

4
 ● 19% of applicants surveyed have a legal job offer contingent upon
them passing the bar exam; 14% of applicants surveyed have already
lost their job offer due either to issues related to COVID-19 or the
delay of the bar exam.
● 75% of applicants surveyed report financial insecurity.
● 29% of applicants surveyed report housing insecurity.
● 25% of applicants surveyed report that they are caring for children or
family members as a direct result of the COVID-19 pandemic.
● Almost 9% of applicants surveyed report food insecurity.7

One applicant writes, “I got sick with COVID symptoms in March and

while the other symptoms have subsided, I have had a fever and fatigue

continuously since then (16+ weeks). These symptoms have been sometimes

debilitating. My doctors have told me the only thing I can do is rest.” Another

writes, “I cannot afford internet service and planned to study for the bar exam in

my school library, where there is a consistent and strong internet connection.

Unfortunately, all of my school facilities are closed, including the library. . . I am

currently using free Xfinity WiFi, but the connection is very poor. I often am

unable to connect or get disconnected while using the free service.” Challenges

such as these are common among applicants. Applicants’ complete impact

statements are attached as Exhibit 1.

7 See Impact Survey of Massachusetts Bar Applicants (Exhibit 15).

5
 These hardships disparately impact applicants of color and low-income

applicants, and their families. The Massachusetts Department of Public Health

reports that Black and Latino residents test positive for COVID-19 at three times

the rate of white residents; are hospitalized at higher rates than white residents; and

die from COVID-19 at higher rates compared to white or Asian residents. Nine of

the ten cities in Massachusetts with the highest rates of COVID-19 infection are

communities where more than half the residents identify as persons of color.8

Nationwide, data from the Centers for Disease Control and Prevention (“CDC”)

show that Black and Latino residents are three times as likely to be infected with

COVID-19 and nearly twice as likely to die from COVID-19 as white people.9

Thus, Black and Latino applicants are more likely to suffer from COVID-19, or

know someone who has died from COVID-19, as compared to their white peers.

This Court recognized these impacts, and the presence of systemic racism, in

its letter dated June 3, 2020. The Court stated that “African-Americans have

8 Hanson, Coronavirus-positive case rate is 3 times higher for Black and Latino
populations, Massachusetts COVID-19 Health Equity Advisory Group finds,
MassLive.com (June 19, 2020),
https://www.masslive.com/coronavirus/2020/06/coronavirus-positive-case-rate-
is-3-times-higher-for-black-and-latino-populations-massachusetts-covid-19-health-
equity-advisory-group-finds.html.
9Gebellof et al., The Fullest Look Yet at the Racial Inequality of Coronavirus, The
New York Times (July 5, 2020),
https://www.nytimes.com/interactive/2020/07/05/us/coronavirus-latinos-
african-americans-cdc-data.html.

6
suffered disproportionately from the COVID-19 pandemic, both in terms of the

number of deaths and the extent of economic hardship it has caused.”10 These

impacts compound the “inequity and injustice that is the legacy of slavery, of Jim

Crow, and of the disproportionate incarceration of African-Americans” as well as

“the untruths and unfair stereotypes about African-Americans that have been used

to justify or rationalize their repression.”11

These disparate impacts will compound the existing racial disparities in bar

passage rates that exist under normal circumstances. Chief Justice Gants

acknowledged “reasonable concerns about the disparate impact of the bar on law

graduates of color” in his letter to Massachusetts law school deans on April 22,

2020.12 Massachusetts does not publish bar passage data disaggregated by race and

ethnicity. However, in New York in July 2017, 79.6% of white examinees passed

the Uniform Bar Exam, as compared to 48.6% of Black examinees and 57.1% of

Hispanic/Latino examinees.13 In July 2019, 62.9% of first-time white examinees

10 Letter from the Seven Justices of the Supreme Judicial Court to Members of the
Judiciary and the Bar (June 3, 2020), https://www.mass.gov/news/letter-from-the-
seven-justices-of-the-supreme-judicial-court-to-members-of-the-judiciary-and.
11 Id.

12 Letter from Chief Justice Ralph D. Gants to Law School Deans (Apr. 22, 2020)

(Exhibit 8).
13Impact of Adoption of the Uniform Bar Examination in New York, National
Conference of Bar Examiners at 149,
https://www.nybarexam.org/UBEReport/NY%20UBE%20Adoption%20Part%
202%20Study.pdf.

7
passed the California bar exam, as compared to 32.1% of first-time Black

examinees and 37.8% of first-time Hispanic/Latino examinees.14

This Court’s June 3rd letter concluded that “this must be a time not just of

reflection but of action.”15 Petitioners agree. While the Court has thus far acted

swiftly to move to an online bar exam, changing facts call for additional action to

provide an adequate solution. While moving to an online exam addresses the

public health risks that would flow from an in-person bar exam, it does not provide

mitigation for the extraordinary hardships applicants currently face.

In fact, an online bar exam only introduces greater uncertainty for

applicants who cannot be sure that the online bar exam will proceed without

technical failure. An online bar exam also increases the likelihood that the bar

exam will disadvantage applicants of color, applicants with disabilities, and lower-

income applicants, as detailed below.

II. The Court’s Current Plan to Administer an Online Bar Exam Relies
on Unreliable and Biased Technology

A. Recent experiences of professional and academic exams

demonstrate that online standardized testing to be unreliable

i. The first attempts at online bar administration have been seriously compromised by
technological failures.

14 General Statistics Report, July 2019 California Bar Examination (July 2019),
http://www.calbar.ca.gov/Portals/0/documents/July2019-CBX-Statistics.pdf?.
15 Id.

8
 On July 24, 2020, the Supreme Court of Indiana announced that it was

postponing the state’s online bar exam, scheduled to be administered four days

later on July 28, 2020, due to the “continuing failure” of exam software provided

by ILG Technologies.16 The announcement followed a mandatory live beta trial of

Indiana’s online exam conducted with all registered examinees. Many examinees

reported that they could not access the exam software, and that when they called

the software vendor’s support number, they reached only a voicemail inbox.17

The Indiana Supreme Court noted that it had received “repeated assurances

from the vendor” regarding the reliable performance of the exam software, and yet

did not believe that such problems could be fixed in time for the scheduled exam.18

16 @BarExamTracker, Twitter (Jul 24, 2020),

https://twitter.com/BarExamTracker/status/1286767247592169478 (Tweet
contains copy of email sent to all Indiana examinees by the Indiana Supreme
Court and Board of Law Examiners); Indiana Judicial Branch, Indiana Remote
Bar Exam Postponed to August (July 24, 2020),
https://calendar.in.gov/site/courts/event/supreme-indiana-remote-bar-exam-
postponed-to-august.
17 Examinees reported exam problems on social media platforms. See, e.g., Indiana

Online Bar Exam- ILG360 Software Still Not Working, Reddit (July 24, 2020),
https://www.reddit.com/r/Bar_Prep/comments/hx39wg/indiana_online_bar_ex
am_ilg360_software_still_not. ( describing numerous technical issues, and that calls
to vendor’s support line went to voicemail); @Lawyerella_JD, Twitter (July 24,
2020), https://twitter.com/Lawyerella_JD/status/1286724265514078208 (photo
of exam software stating that the user did not have an internet connection).
18 @BarExamTracker, Twitter (July 24, 2020),

https://twitter.com/BarExamTracker/status/1286767247592169478 (contains
copy of email sent to Indiana examinees by Indiana bar administrators).

9
These problems arose despite the fact that Indiana was to administer a relatively

small online bar exam, with roughly 500 bar exam takers.19

The Supreme Court of Nevada, having learned of the technological failures

in Indiana’s live beta test of the ILG Technology software, also announced on July

24, 2020 that it was postponing the state’s July 28 online exam.20

The Indiana and Nevada online bar exams were rescheduled to August 4

and August 11–12, respectively. On July 28, the Indiana Supreme Court

concluded that it could not hold its online exam as planned on the rescheduled

date with confidence that no malfunctions would occur; it announced that the

exam would proceed without proctoring or identification check-ins, and as an

open-book exam conducted over email.21 The Nevada Supreme Court followed

suit shortly thereafter, ordering that the Nevada Bar Exam, already slated to be

open-book, would also take place without proctoring or identification check-in.22

19 See, e.g., Odendahl, External webcams, quiet rooms among details for first-ever
remote bar exam in July, The Indiana Lawyer (May 29, 2020),
https://www.theindianalawyer.com/articles/external-webcams-quiet-rooms-
needed-for-first-ever-remote-bar-exam-in-july.
20 Order Postponing July 2020 Bar Examination (Nev. July 24, 2020) (Exhibit 13).

21 Order on Indiana Bar Examination, No. 20S-CB-00300 (Ind. July 29, 2020)

(Exhibit 12).
22 See @BarExamTracker, Twitter (July 31, 2020),

https://twitter.com/BarExamTracker/status/1289378509379362816.

10
 The first online bar exam to actually be administered—Michigan’s one-day,

essay-only exam on July 28—was subject to a distributed denial of service (DDoS)

cyber-attack,23 which prevented examinees from being able to access essay

questions for extended periods of time.24 Examinees reported that they called

ExamSoft’s support line, but no one answered. ExamSoft’s solution to these

problems was to start posting the passwords required to access each essay question

on ExamSoft’s public website,25 compromising exam security and integrity.

Examinees who had trouble accessing the appropriate essay questions at

their scheduled times were permitted to work on these questions at different times

than other examinees, again compromising exam integrity. While examinees were

given extra time to make up for any lost time they experienced, this solution was of

23 A DDoS cyber-attack occurs when attackers overwhelm a server with traffic,

thereby causing it to shut down. See, e.g., Sloan, Michigan Blames Cyberattack for
Online Bar Exam Woes, While Indiana Moves to Exam Via Email, Law.com (July
29, 2020), https://www.law.com/2020/07/29/michigan-blames-cyber-attack-for-
online-bar-exam-woes-while-indiana-moves-to-exam-via-email.
Notably, a situation wherein hundreds of examinees attempt to access a website at
the same time replicates the same technological phenomenon that occurs in a
DDoS attack. Thus far, ExamSoft has not produced any evidence that the
technological malfunctions were due to a DDoS attack, rather than their servers
simply being overwhelmed by the volume of examinees. See, e.g., id.
24 See id.

25See, e.g., Jonathan Korn (@jkornjkorn), Twitter (July 29, 2020),

https://twitter.com/jkornjkorn/status/1288121697925656578/photo/1; Jonathan
Korn (@jkornjkorn), Twitter (July 29, 2020),
https://twitter.com/jkornjkorn/status/1288125261616050177/photo/1.

11
minimal utility; this information was not communicated to examinees until they

had already begun their exam answers under the impression that they had lost

time, therefore likely affecting the quality of their responses.26 Examinees reported

that the disruption affected their ability to focus and their performance.”27 One

examinee reported that when she had ten minutes left on each module, her

computer screen would flash with a warning that her computer battery was dying

and that it would shut down; this warning was erroneous, because the examinee

was using a desktop computer that was plugged into an outlet, not a laptop that

relied on battery power. The examinee reported that these erroneous warnings

compromised her focus.28

Two days after the bar exam, the Chief Justice of the Michigan Supreme

Court wrote an open letter to Michigan examinees, expressing that she was “so

26 See, e.g., Molly Savage (@mmsvge), Twitter (July 28, 2020),

https://twitter.com/mmsvge/status/1288245172732665857.
27 See, e.g., Hokage-sama J.D. (@TweeterlessJ), Twitter (July 28, 2020),

https://twitter.com/TweeterlessJ/status/1288153085622321153 (“When I finally

got through to take the second module, I was so outside of the mindset to take the
exam that I ran out of time . . . .”).
28 See, e.g., Mel Souraya (@MelSouraya), Twitter (July 28, 2020),

https://twitter.com/MelSouraya/status/1288258788085112832?cxt=HHwWgIC
1qdqi6OAjAAAA.

12
sorry” for the exam administration issues, and that Michigan would consider

alternatives to the bar exam.29

ii. Recent online standardized tests in other fields have also faced serious technological
troubles.

● After administering a remote Law School Admissions Test (“LSAT”),

the test administrator permanently lost the test scores for over 100
test-takers, forcing them to retake the test.30
● On the first day of the remotely-administered General Surgery
Qualifying Exam, the remote-proctoring service collapsed, causing
delays, interruptions, and ultimately, a breakdown of the entire
exam.31
● In Canada, the remotely-administered Medical Qualifying Exams also
suffered difficulties; tests concluded early and servers disconnected.32
● On the online Advanced Placement (“AP”) tests, some test-takers were
unable to upload their exam answers, leading to a class action lawsuit
currently pending against the College Board, the AP test

29 Letter from Chief Justice Bridget M. McCormack to Michigan Examinees (July

29, 2020),
https://courts.michigan.gov/Courts/MichiganSupremeCourt/BLE/Documents/
Chief%20Justice%20McCormack%20Letter%20to%20Test%20Takers.pdf.
30 See, e.g., LaSusa, LSAT Tech Glitch Causes 'Small Number' Of Lost Scores,

Law360 (July 30, 2020),

https://www.law360.com/legalindustry/articles/1297149/lsat-tech-glitch-causes-
small-number-of-lost-scores.
31 American Board of Surgery @AmBdSrg, Twitter (July 17, 2020),

https://twitter.com/AmBdSurg/status/1284068218223697923 (official
announcement regarding the exam).
32See, e.g., Kupfer, Med school final exam plagued with technical issues after
moving online due to COVID-19, CBC (June 22, 2020),
https://www.cbc.ca/news/canada/ottawa/medical-Mcc-exam-technical-issues-
1.5619168.

13
 administrator.33 After the problems on the AP test, the College Board,
which also administers the SAT, cancelled plans for an online SAT.34
● On the online Graduate Management Admission Test (“GMAT”),
test-takers have reported, in particular, that the virtual scratch paper
they are afforded is difficult to use, “a consequence that costs test-
takers valuable time and points on their overall GMAT scores.”35

iii. Massachusetts has not publicly announced any contingency plans to provide
applicants reasonable recourse if similar problems occur during the Massachusetts
bar exam.

Petitioners are not aware of any plans this Court has to address situations

like those described above, although they recognize, and hope, that the Court may

be developing such contingencies.

If the Massachusetts Bar Exam is facing serious technological troubles in the

days and weeks leading up to the exam, as was the case in Indiana and Nevada, a

short postponement of the exam administration date (like those implemented in

Indiana and Nevada) is likely not an option because of the many other jurisdictions

33 See, e.g., Jaschik, College Board Says AP Testing a Success, Inside Higher Ed
(May 26, 2020),
https://www.insidehighered.com/admissions/article/2020/05/26/college-board-
says-ap-testing-was-success-sued.
34 See, e.g., Adams, ACT Is Struggling to Give Its College Admissions Tests

During Pandemic (July 27, 2020),

https://www.forbes.com/sites/susanadams/2020/07/27/act-is-struggling-to-give-
its-college-admissions-tests-during-the-pandemic/#4fc832fb62b0.
35Byrne, Tales From The GMAT Crypt: Test-Takers Cry Foul Over Tech
Glitches, Bugs & Poorly Trained Proctors, Poets & Quants (May 1, 2020),
https://poetsandquants.com/2020/05/01/tales-from-the-gmat-crypt-test-takers-
cry-foul-over-tech-glitches-poorly-trained-proctors/?pq-category=gre-gmat.

14
administering the same National Conference of Bar Examiners material on the

same days as Massachusetts. To maintain exam security, all the jurisdictions

administering the exam would have to agree to the same delay.

That being said, in the unlikely event that a short delay is possible, even

short delays can be harmful for test-takers who have made arrangements in

reliance upon the scheduled date of the bar exam—for instance, arranging and

paying for childcare, booking a hotel room or office space to take the exam,

making plans to move or start work after the exam, and so forth.

In the more likely event that a short delay is not possible, Petitioners would

respectfully encourage this Court, if it has not already done so, to develop a

reasonable contingency plan, like the open-book, non-proctored exam mode

ultimately chosen in Indiana and Nevada.

With respect to exam software, Petitioners understand that Massachusetts

will use ExamSoft, and not ILG, to administer the online bar exam. This, however,

provides little assurance.

First, as Michigan’s recent use of ExamSoft software for a remote exam

demonstrated, it is unlikely that ExamSoft will function properly. But Michigan’s

15
experience is not the first time that bars have dealt with ExamSoft-related

problems.36

Second, the risk of technological failure is likely to be compounded by the

fact that many thousands of examinees will be using ExamSoft software

simultaneously on October 5 and 6.37 Not only does this high volume of users put

the software at greater risk of malfunctioning due to being overloaded,38 but it will

also make it logistically difficult to provide live technical support to hundreds, or

even thousands, of users who might encounter technological problems.39 ExamSoft

was apparently unable to field support calls from some number of Michigan’s

examinees, as described above. There is no evidence to suggest that ExamSoft will

36 For instance, an individual who sat for a 2017 Florida bar exam has recently filed
a complaint, supported by an expert report, alleging that ExamSoft software
malfunctioned during his examination, and erroneously reported him to have
continued writing the exam after the time limit had expired. See Complaint,
Prado-Galarza v. Examsoft Worldwide, Inc., 6:20-cv-01294, No. 1 (M.D. Fla. July
21, 2020) at 2–5 (Exhibit 9). It took this applicant more than nine months and
$25,000 in legal and expert expenses to successfully challenge the Florida Bar’s
determination that he had cheated, all the while facing additional professional and
financial hardship due to his inability to practice law in Florida. See id. at 4–5.
37 Fourteen states, including New York, California, Illinois, Pennsylvania, Georgia

and Ohio, plan to administer their exam concurrently with Massachusetts on

October 5–6. See, e.g., Sloan, Indiana and Nevada Postpone Bar Exams, Raising
Questions About Feasibility of Online Tests, Law.com (July 27, 2020),
https://www.law.com/2020/07/27/indiana-and-nevada-postpone-bar-exams-
raising-questions-about-feasibility-of-online-tests.
38 See, e.g., note 23, supra. McMasters, Feasibility of a Mass Online California Bar
Exam: Part 2: Technical Feasibility (July 28 2020) (Exhibit 11), at 12–14.
39 See, e.g., McMasters, note 38, supra at 12–14.

16
have the capacity to provide technical support for the tens of thousands of

examinees who will be using its software on October 5 and 6.

Third, this Court’s current policy is that examinees will not be permitted to

have telephones in their examination room, and must remain in view of their

cameras during all times when the exam is being administered.40 It is therefore

unclear how examinees could possibly seek technical support without violating

exam rules and risking disqualification.

Finally, in an exam that entails such strict time limits, even the smallest

technological hurdle could make the fatal difference between passing and failing.

Even if the software functions properly for a majority of the thousands of October

test-takers, it would be unacceptable if even a small minority of examinees face

technical difficulties and are disadvantaged through no fault of their own.

B. ExamSoft’s facial recognition software is invasive of privacy,

and is likely to negatively affect people of color, people with
disabilities, and women.

Petitioners understand that Massachusetts will utilize ExamSoft’s artificial

intelligence proctoring service to provide exam security.41 This technology is

40 Supreme Judicial Court, FAQs Related to October 2020 Examination for

Admission to the Massachusetts Bar, https://www.mass.gov/guides/faqs-related-
to-october-2020-examination-for-admission-to-the-massachusetts-bar.
41 Reed, Online Bar Exams Come With Face Scans, Bias Concerns, Bloomberg

Law (July 28, 2020), https://news.bloomberglaw.com/business-and-

practice/online-bar-exams-come-with-face-scans-discrimination-concerns.

17
inflected with racial and gender bias. As the American Civil Liberties Union of

California explained in a recent letter to the California Supreme Court, “[f]acial

recognition has been repeatedly demonstrated to be less accurate when used to

identify Black people, people of Asian descent, and women. In a 2019 ACLU

study, 1 in 5 California legislators were erroneously matched to a mugshot of

persons who have been arrested, with facial recognition disproportionately

misidentifying lawmakers of color.”42

These issues may well appear during the bar exam. As the ACLU of

California illustrated, “[t]est-takers of color may be more likely to experience

technical difficulties during the examination if facial recognition algorithms are

unable to verify their identity. Others may be wrongfully accused of cheating or

other suspicious behavior based on an algorithm’s misreading of facial movements

or mannerisms. For undocumented bar applicants and applicants of color, the risks

of having their biometric data stored in a vendor’s database increases the possibility

of surveillance and criminalization that they are already unduly subjected to.”43

42 Letter from ACLU of California to the Justices of the Supreme Court of

California (July 16, 2020),
https://www.aclunc.org/sites/default/files/ACLU_Advocacy_Letter_re_Online_
Bar_Exam.pdf.
43 Id.

18
 Further, remote examinations have an outsize impact on examinees with

disabilities. When reporting on Tennessee’s online bar exam code of conduct for

the October 5–6 exam administration, Business Insider wrote, “[b]ar exam

candidates in Tennessee shouldn't touch their face, twirl their hair, or fidget

excessively if they want to pass.”44 Candidates are instructed to be careful about

looking away from the screen too long or too often. Any of these behaviors may be

flagged as cheating and puts an examinee at increased risk of having their score

cancelled. While it would be hard for almost anyone to control these typical human

behaviors while focusing on a high-stakes exam, it will be harder and even

impossible for some candidates with disabilities and mental illnesses to do so.45

44 Han, Some Young Lawyers Taking the Bar Exam Online Could See Their
Scores Canceled If They Touch Their Face, Fidget, or Twirl Their Hair, Business
Insider (July 25, 2020), https://www.businessinsider.com/tennessee-online-bar-
exam-strict-rules-2020-7.
45 The National Disabled Law Students Association is currently circulating a survey

on accessibility concerns surrounding the online bar exam, but many students with
disabilities have chimed in on social media. For instance, one 2020 examinee
referred to the list as “literally just a list of things that I do whenever I concentrate
because I have ADHD, predominantly inattentive type.” Melanie K. Blair
(@Melanie_K_Blair), Twitter (July 24, 2020),
https://twitter.com/Melanie_K_Blair/status/1286790025116626947?s=20 (tweet
links to and comments on screenshots of Tennessee Board of Law Examiners’
“Code of Conduct” for the administration of their remote bar exam). Another
examinee explained that, due to Tourette syndrome, “I couldn’t comply with any
of these stay still requirements...” See Han, supra note 44.

19
 ExamSoft also presents numerous privacy issues, which further compound

issues regarding its facial recognition software. First, ExamSoft experienced a

cyber-attack during the first bar exam it administered, in Michigan, as detailed

supra, note 23. This does not instill confidence that ExamSoft has taken adequate

measures to protect against other kinds of cyber-attacks. Second, ExamSoft has a

policy that it will share user data with law enforcement upon request.46 In order to

be admitted to the bar, applicants have no choice but to surrender their personal

data to this vendor, risking that this data is hacked or given to law enforcement.

Once again, these issues endanger undocumented examinees, examinees of color,

and examinees from marginalized groups the most.

Here in the Commonwealth, within the past month, both the Massachusetts

House of Representatives and the State Senate have passed legislative language

banning or placing a moratorium on state usage of facial recognition technology in

all but a few clearly prescribed situations as part of their respective versions of

police reform legislation.47 It is unclear whether this language as currently

constituted in the House and Senate bills, or indeed any final language signed into

law, would extend to the Board of Bar Examiners’ usage of ExamSoft’s facial

recognition technology. What is clear, however, is that facial recognition

46 See ExamSoft Privacy Policy, https://examsoft.com/privacy-policy.

47 2020 Senate Bill No. 2820; 2020 House Bill No. 4860.

20
technology is highly incompatible with the Commonwealth’s rejection of

technologies that further systemic racism and impinge on privacy.

Petitioners are uncertain whether this Court’s Memorandum of

Understanding with the National Conference of Bar Examiners would allow for

reasonable contingencies like the open-book, non-proctored exam solution used in

Indiana and Nevada or the administration of an exam without facial recognition

technology. If that is, in fact, the case, this only heightens the importance of

adopting a diploma privilege plus option so as to not leave applicants exposed to

internet and technological issues completely beyond their control and artificial

intelligence that carries with it risks of racial and gender bias.

III. The Proposed Accommodations Will Likely be Insufficient to Serve

All Applicants Who Need Access to Reliable Internet or a Quiet Space

Petitioners have no doubt that the Board of Bar Examiners will do their

utmost to find accommodations with reliable internet and a quiet space for every

applicant who needs them.48 However, of those who responded to Petitioners’

impact survey, fewer than 46% of applicants reported access to reliable and

consistent internet, and only 30% reported access to a quiet space in which to take

the exam.49

48 Supreme Judicial Court, FAQs, supra note 40.

49 See Impact Survey of Massachusetts Bar Applicants, supra note 7. For related

impact statements, see Applicant Impact Statements, Exhibit 1.

21
 Importantly, these barriers do not only affect applicants’ ability to take the

online bar exam. They also impose barriers to applicants’ ability to effectively

prepare for the bar exam itself, in addition to the disparate impacts discussed in

Section I, supra.

In July 2019, 1,377 applicants took the bar exam in Massachusetts. If the

number of applicants taking the October bar exam is the same, and if the results of

the impact survey reflect the needs of many more applicants, the Board of Bar

Examiners could need to find socially-distanced accommodations for as many as

950 examinees. This, petitioners fear, is not feasible. Furthermore, in-person

accommodations force immunocompromised applicants or applicants living with

high-risk individuals to compromise their own health or that of a loved one in

order to take advantage of the accommodation.

These accommodations also do not address the possibility of disruptions for

examinees with otherwise reliable internet or a quiet study space. Consider, for

example, the Michigan examinee whose next-door neighbor started having trees

cut down during the bar exam’s administration, causing great noise.50 Unless

protections are put in place to ensure examinees are not penalized for unexpected

disruptions, the bar exam will merely reward examinees with access to resources

50Tyler Silvestri (@Tyler_Silvestri), Twitter (July 28, 2020),

https://twitter.com/Tyler_Silvestri/status/1288147659237269506?cxt=HHwWhI
C18ZPeteAjAAAA.

22
and the good fortune of working internet and quiet neighbors on the days of the

bar exam, while disadvantaging those without.

Even more concerning is the requirement for all states administering the

NCBE-provided exam that “non-standard” exams be administered in person.51

This means that students with disabilities—many of whom are among the most at

risk for both contracting and suffering severe effects from COVID-19—are

required to put themselves at risk in order to sit for the “remote” exam in person.

IV. Diploma Privilege Plus Will Rigorously Ensure Legal Competence

A. Evidence from Wisconsin suggests that diploma privilege

adequately protects consumers.

In declining to adopt diploma privilege thus far, this Court has emphasized

that current bar exam passage rates indicate that if a diploma privilege option were

to be granted, unqualified lawyers would be granted a license to practice law.52

Petitioners agree with this Court that the able performance of attorneys is of

the utmost importance. Lawyers are called to handle a person’s most critical

51 @BarExamTracker, Twitter (July 18, 2020),

https://twitter.com/BarExamTracker/status/1284582065036496896 (tweet
contains screenshots of Memorandum Of Understanding [Jurisdiction]: For the
Use of Abbreviated NCBE Test Materials for October 5-6, 2020, Remote
Administration. See MOU (1)(b)(II)).
52 Letter from Chief Justice Ralph D. Gants to Law School Deans (July 13, 2020)

(Exhibit 7).

23
matters—their life, liberty, immigration status, familial relationships, and property.

Experience from Wisconsin, however, which has a diploma privilege program

dating back to the 1800’s, indicates that diploma privilege does not present

heightened risk to the public.53

Wisconsin allows diploma privilege for the graduates of its two in-state law

schools: Marquette University Law School and University of Wisconsin Law

School.54 The diploma privilege requirements are not particularly onerous. To be

eligible, a graduate must (1) earn 30 law school credits with a grade of “C” or

higher in a mandated set of ten core law school subjects central to any law school

education, and (2) earn another 30 law school credits with a grade of “C” or higher

53 Moran, The Wisconsin Diploma Privilege: Try It, You’ll Like It, 2000 Wis. L.
Rev. 645, 648 (2000).
54 The LSAT median for those attending Marquette University is 154. See Class

Profiles Fall 2019 Entering J.D. Class, Marquette University Law School,
https://law.marquette.edu/prospective-students/class-profiles. The LSAT median
for those attending the University of Wisconsin is 162. See Consumer Information
(ABA Required-Disclosures), Law School University of Wisconsin-Madison,
https://law.wisc.edu/prospective/stats.html.

24
from a wide list of elective courses.55 Petitioners attest that they each took the vast

majority of the mandated set of courses, and also that they took many courses

included in the list of elective courses. Given that most of Wisconsin’s mandated

courses are required at all law schools as well the wide breadth of the elective

courses to choose from, Petitioners believe this to be the case for most applicants.

According to the logic that diploma privilege offers insufficient protection

against malpractice, Wisconsin lawyers admitted through diploma privilege should

commit legal malpractice at higher rates. And yet, this is not so. A study of

Wisconsin bar discipline cases from January 2013 to March 2016 compared

lawyers admitted through diploma privilege to those admitted through bar passage.

The study revealed that “the bar passage group had more sustained disciplinary

55The mandated courses are in the areas of: constitutional law, contracts, criminal
law and procedure, evidence, jurisdiction of courts, ethics and responsibilities of the
legal profession, pleading and practice, real property, torts, and wills and estates.
The elective courses are in the areas of: administrative law, appellate practice and
procedure, commercial transactions, conflict of laws, constitutional law, contracts,
corporations, creditors’ rights, criminal law and procedure, damages, domestic
relations, equity, evidence, future interests, insurance, jurisdiction of courts,
legislation, labor law, partnership, personal property, pleading and practice, public
utilities, quasi-contracts, real property, taxation, torts, trade regulation, trusts, and
wills and estates. See Wisconsin Supreme Court Rule 40.03, Legal competence
requirement: Diploma Privilege.

25
cases and that those disciplinary violations were usually based upon more serious

ethical violations than the diploma admitted attorneys.”56

In addition to the positive evidence that Wisconsin provides, it is important

to note that Wisconsin’s diploma privilege model does not entail the additional

consumer protection safeguards that accompany a diploma privilege plus option,

further detailed in Section IV.B, infra.

Finally, two states—Washington and Louisiana—have offered diploma

privilege to applicants from in- and out-of-state law schools alike, irrespective of an

applicant’s law school’s exam passage rates.57 We presume that the Supreme

Courts of Washington and Louisiana share this Court’s deep commitment to

ensuring consumer protection, and yet concluded that diploma privilege was

appropriate given the extraordinary circumstances of COVID-19.

56 Patton, A Rebuttal to Kinsler's and to Anderson and Muller's Studies on the

Purported Relationship Between Bar Passage Rates and Attorney Discipline, 93 St.
John’s L. Rev. 43, 83 (2019).
57 See Order by the Supreme Court of Louisiana, supra note 2; Order Granting

Diploma Privilege, supra note 2.

26
 B. Requirements such as additional education or temporary
supervised practice will further protect consumers.

Adoption of a diploma privilege plus approach—which entails diploma

privilege conditioned upon the completion of additional educational requirements,

temporary supervised practice, or both—is one way to implement additional

consumer protection safeguards.

i. The Louisiana Model: Additional Educational Requirements

The Supreme Court of Louisiana has concluded that diploma privilege,

combined with additional educational requirements, will provide sufficient

“guardrails to ensure the competency and integrity of the newly-admitted

attorneys.”58 In addition to completing twenty-five additional hours of Continued

Legal Education, candidates will be required to participate in the Louisiana State

Bar Association’s year-long “Transition into Practice” program, which entails a

series of activities and benchmarks designed to educate new attorneys about

Louisiana’s laws, courts, professional ethics, and bar association.59

This model offers significant benefits for consumers, this Court, and

applicants. Lawyers who complete additional hours of Continued Legal Education

and other required programming over the course of one year (or more, as this

58 Press Release, Louisiana Supreme Court, supra note 3.

59 See Order by the Supreme Court of Louisiana, supra note 2 at 3; Press Release,

Louisiana Supreme Court, supra note 3.

27
Court deems appropriate) will bring the benefit of increased knowledge of the

Commonwealth’s laws and court system to the people they serve. This level of

valuable training, especially with respect to Massachusetts-specific laws and each

lawyer’s area of practice, will surpass the level of training that newly-admitted

attorneys are currently required to possess, and will be a benefit to consumers and

legal employers alike.

This model is also appealing because much of the necessary infrastructure

and programming—primarily, Continued Legal Education materials—already

exist, and therefore will be feasible for this Court and the Massachusetts Bar to

implement within a compressed timeline.

Finally, this model is an equitable option for applicants. Most simply, it

would allow applicants to start working as attorneys, or to seek employment,

immediately. But it is also equitable because it is an option that will be feasible for

all applicants: even if this Court were to require a significant amount of educational

programming, applicants will have the scheduling flexibility to complete such

requirements over the course of an extended period of time (e.g., a year). Such

flexibility is much needed during a pandemic that promises to confront many

applicants with illness (for themselves or their family), changes to childcare

availability, economic insecurity, and many other challenges.

28
 ii. The Utah Model: Supervised Practice

The Supreme Court of Utah has adopted diploma privilege combined with

supervised practice requirements.60

In Chief Justice Gants’s correspondence with applicants on the issue of a

supervised practice model, he identified three main concerns: (1) a pandemic is not

a great time to launch a new program and remote supervision makes adequate

training more difficult, (2) any apprenticeship program must include standards and

criteria to measure successful attainment of competence, and (3) such a program

would disadvantage those who are unable to find an attorney to supervise and

mentor them.

First. In response to the Chief Justice’s concern that a pandemic is a

suboptimal time to launch a new program, Petitioners urge, to the contrary, that it

may be the best and most equitable time to do so. Further, while fast-tracking a

supervised practice program during this time may be challenging, so too is offering

an unprecedented remote bar exam riddled with technological pitfalls. Quite

simply, any response to this current crisis will have its challenges.

Moreover, while it is true that supervision of applicants might take place

primarily remotely during COVID-19, legal workplaces have now had almost half

See Order for Temporary Amendments to Bar Admission Procedures During

60

COVID-19 Outbreak, supra note 2 at 4–5.

29
a year to adjust to remote practice. At this point, most legal employers have

conducted summer internship programs remotely, gaining experience and insight

into how training can successfully be accomplished while employees work from

home. There is also no reason to believe that employers have lowered their

standards for entry-level attorneys merely because work is now done remotely.

Second. With respect to providing adequate standards for supervised practice,

this Court might consider devising its own basic standards and requirements for

supervised practice, or could look to the standards in place in countries like

England and Wales. These standards set out a broad slate of skills that any solicitor

must have, ranging from advocacy and oral presentation to drafting and legal

research.61 Each trainee solicitor must maintain a written record containing their

reflections and their supervisor’s appraisal of their attainment of the skills required

under the standards.62

Third. Petitioners share in the Chief Justice’s concern that, while many

applicants may be able to qualify for supervised practice through their employers,

61 Solicitors Regulation Authority, Practice Skill Standards (May 2020),

https://www.sra.org.uk/trainees/period-recognised-training/managing-
trainees/practice-skills-standards.
62Solicitors Regulation Authority, SRA Authorisation of Individuals Regulations,
Regulation 3E: Recognised Training,
https://www.sra.org.uk/solicitors/standards-regulations/authorisation-individuals-
regulations.

30
some applicants may not be able to do so. That being said, a diploma privilege plus

model based upon supervised practice need not displace the bar exam as the only

route for admission. Every state that adopted diploma privilege has also maintained

an examination option (an approach that has the added benefit of reducing the

number of examinees, and therefore reducing some logistical burdens of exam

administration).63 If Massachusetts follows this model, then applicants who need or

prefer to take the bar exam for any number of reasons could do so. There is no

perfectly equitable path to licensure given the unique challenges of this pandemic.

Therefore, more than one path must be offered to mitigate the inequities that each

potential path poses.

63See Order by the Supreme Court of Louisiana, supra note 2; Order Granting
Diploma Privilege, supra note 2 (Washington); Order Approving 2020 Admissions
Process, supra note 2 (Oregon); Wis. Sup. Ct. R. 40.03; Bar Examination Dates
2020-2021, Utah State Bar, Bar Operations and Admissions,
https://admissions.utahbar.org/news.action?id=300.

31
 CONCLUSION

For many applicants, a bar exam administered this fall will not be an

accurate indicator of an examinee’s legal competence, especially in relation to their

peers who have more financial resources and who are from communities less

affected by COVID-19. There is also a high risk that examinees will be subjected

to technological failures beyond their control. Therefore, this Court should join the

growing number of its sister courts in providing an emergency diploma privilege

option as an alternative to an online examination that, for some number of

examinees, will be compromised by “insurmountable challenges wholly-unrelated to

the competence to practice law.”64

REQUESTS FOR RELIEF

I. This Court should adopt an emergency diploma privilege option.

II. This Court should adjust the cut-off score for applicants who choose
to sit for the online bar exam in order to reflect the unique hardships
posed by the COVID-19 pandemic.
III. This Court should adopt rules to safeguard applicants who sit for the
online bar exam from being penalized (e.g. losing time on the bar
exam or being forced to wait to sit for the February 2021
administration) due to loss of internet, technological issues, or other
disruptions outside of their control.
IV. This Court should adopt rules for the online bar exam that do not
necessitate the usage of facial recognition technology or remote
proctors.

64 Press Release, Louisiana Supreme Court, supra note 3 (emphasis added).

32