It appears the July 2020 bar exam did not spread Covid-19 among any test-takers

There was much concern ahead of the July 2020 bar exam that administering the exam would be unsafe for test-takers. Indeed, it’s a reason why many states postponed their exams, shifted to an online exam, or offered diploma privilege to some cohort of would-be test-takers.

Several states, however, administered the July 2020 bar exam in person, on schedule. And it appears that there were zero instances of the spread of Covid-19 related to the administration of the exam in any of jurisdictions.

(Let me offer a few throat-clearing caveats here. Past performance is no indicator of future success in later administrations. Some set of test-takers had difficulty studying for the bar exam ahead of the July 2020 exam; some may have had difficulty taking it in masked environments. We’ll see what the results of these administration look like, of course—it might be that pass rates decline by some degree among some because of these factors. But, then again, they might increase if people had little to do or few places to travel and more time to study! Some people also probably withdrew from the administration of the July 2020 bar exam due to family commitments or high concern of the risk of contracting Covid-19 during the administration of the bar exam, which is not a trivial cost. Some set also may well have opted into these particular tests in UBE jurisdictions, as the score could transfer to other jurisdictions that had postponed administrations. In short, there are a lot of open coronavirus-related questions that this post is not about, but additional concerns to think about in evaluating costs and benefits.)

That said, if we are concerned about the risk of spreading Covid-19 during the bar exam, this should be encouraging. There are a couple of ways to think about Covid-19 spread, too. The first is during the administration of the exam itself—several hours indoors for a couple of days. The risk of transmission seems particularly low here if adequate precautions are put in place. The second is the broader concern of spreading Covid-19 during travel to and from the bar exam or lodging in another city during the administration of the bar exam itself. That’s a longer time period, a greater likelihood of interacting with others, and a different kind of risk much more difficult for a licensing authority to control, so I don’t want to minimize the risk of spread to “only” the several hours of test-taking.

My instinct is that if someone did contract the coronavirus during the administration of the bar exam, we’d probably know by now. That is, contact tracing would require contacting dozens of test-takers, and that news would presumably make it to some media outlet. Of course, someone might privately have become ill and never disclosed it to the state bar. Or there could have been a great deal of discretion in how these inquiries proceeded. Or maybe contact tracing simply never took place. There are, admittedly, limits to silence.

I reached out to several bar licensing authorities to see, as I put it, “whether any person contracted Covid-19 as a result of the administration of the July 2020 bar examination, or if any person contracted it as a result of their traveling to or from or lodging around the time of taking the bar exam.” (Should I have asked a different question? Well, I tried….) Not everyone got back to me, and I didn’t reach out to everyone, so it’s also limited in this respect, too.

So far, representatives in Colorado, Iowa, Mississippi, Montana, North Carolina, North Dakota, and West Virginia confirmed that, to their knowledge, no one contracted the coronavirus on account of the administration of the bar exam. (I’ll update if I have updates.) Some additionally confirmed that no proctors or staff contracted it, either.

Proving a negative is tough, but some jurisdictions did emphasize they asked test-takers to disclose if they contracted the coronavirus within 14 days after the exam, and none did so. (That would sweep more broadly than contracting it during the bar exam, of course.)

Colorado was of particular interest, as one test-taker learned immediately after taking the bar exam she tested positive for the coronavirus. No one reported contracting the coronavirus as a result of the Colorado exam. Indeed, according to a representative, about half of the test-takers in the room with this test-taker ultimately took a Covid-19 test, and all came back negative.

This should all be encouraging news for bar licensing authorities. Yes, there remain costs, as noted in the parenthetical above, about administering a bar exam during the pandemic. But, I think, if bar licensing authorities have the space to distance test-takers, it provides ample opportunity to continue administrations in February 2021 (or later this fall in jurisdictions that postponed the exam), it may well be that administering the test as scheduled rather than postponing was the better option. Jurisdictions like North Carolina and Colorado each nearly 700 test-takers, which shows that the administration doesn’t have to happen exclusively on a very small scale. (North Carolina and Colorado had the 14th- and 15th-most test-takers in the July 2019 administration of the bar exam, and neither is offering an additional administration later this fall.) That said, scaling to the 10,000 or more test-takers in New York could present very different challenges!

And, of course, we’ll wait for more data to roll in—whether pass rates change, whether the demographics of test-takers differed, and so on. Some states have preemptively and temporarily lowered their cut scores to account for some coronavirus-induced changes, for instance.

North Carolina is a great example—their total test-takers declined from 783 in July 2019 to 668 this July. But the cut score was lowered slightly, and the pass rate rose from 73% to 83% (perhaps also due in part to some non-random self-selection out of the exam). As of September 1, results are out for hundreds of new law school graduates—and many other jurisdictions languish about their plans.

I don’t purport, as I’ve said since March (!), to have a single answer for every jurisdiction on the bar exam, or what the best steps are for each jurisdiction. Some version of diploma privilege may make sense in some places, modified versions of the exam may look better elsewhere. But on this one little piece of information, we should be encouraged about the health and safety of test-takers for in-person administration of the exam.