Less than a month ago, the New York State Courts circulated a proposal to change the New York State (NYS) Bar Exam by adopting the Uniform Bar Exam (UBE) along with a second, separately graded “New York Law Exam” segment consisting of 50 multiple-choice questions, tested for one hour on the second day of the exam. The proposal would make the changes effective for all current graduating law students who face the bar exam in July 2015. This past weekend, the New York State Bar Association House of Delegates unanimously opposed the proposed immediate changes, sending a message to the NYS Board of Law Examiners and to the New York Court of Appeals – do not bring the Uniform Bar Exam and a yet to be formulated or studied New York Exam to NYS in July 2015. Even more significantly, the House directed the State Bar President, based on an amendment from the floor, to do everything possible to prevent immediate implementation of a new bar exam in New York.
So, how did NYS get to the point where the Courts and the Bar are in such conflict over proposed changes to the bar exam?
For several years, the NYS Legal Education and Admissions to the Bar Committee (LEAB) (on which I have formerly served as an active member) has been studying how to improve the bar exam to make it fairer for all groups of test takers and more relevant to what graduates need to know, value and do in the early years of practice. See NYSBA Legal Education September2013Journal particularly page 31. The Committee, through its chairs, has reached out to the NYS Board of Law Examiners and the Chief Justice about these matters without success. The UBE was not one of the reform measures which LEAB proposed for further study or pilot projects.
Suddenly, and without notice to the NYSBA LEAB Committee, co-chaired by well-respected practitioner Eileen Millett and equally well-respected Touro Law Center Dean Patricia Salkin , the courts circulated and posted the following:
1) UNIFORM BAR EXAMINATION (UBE)
POSTED OCTOBER 7, 2014
The New York State Board of Law Examiners has recommended to the New York Court of Appeals that the current bar examination be replaced with the Uniform Bar Examination (UBE). The Court of Appeals is considering adopting the UBE for the administration of the July 2015 bar exam. On October 6, 2014, the Court of Appeals issued a Request for Public Comment on the proposal. Submissions will be accepted until November 7, 2014. A copy of the Request for Public Comment is available by clicking this link: New York Court of Appeals Request for Comment http://www.nybarexam.org
The proposal and request for comment document asserts that “The UBE is prepared by the National Conference of Bar Examiners (NCBE) and passage of the test would produce a portable score that can be used to gain admission in other states that accept the UBE, provided the applicant satisfies any other jurisdiction-specific admission requirements. As the UBE is accepted by more states,the portable score will facilitate lawyer mobility across state lines, resulting in expanded employment opportunities for lawyers throughout the nation and facilitating multi-state law practices.”
Given the surprise announcement from the Court on October 6, 2014 of a 30-day comment period (open until this Friday, Nov. 7th) , the LEAB and its co-chairs had only a matter of weeks to research, discuss and prepare a report for the State Bar Association about the implications of the proposed changes. The LEAB report 10-29-2014 (2) argues that it is simply too soon to discuss the merits of the Uniform Bar Exam and its potential impact on test takers in New York because of the surprise nature of the announcement along with absence of any study or report discussing a need, a cost-benefit analysis, or a discussion of whether there could be disparate impacts on minority test-takers. LEAB is concerned about potential increase in costs for test-takers, impact on barriers to entry to the profession in New York, and impact on the New York job market. LEAB discussions emphasized that the practicing bar has been pressuring law schools to meet the demands of a changing market place including, among other things, producing more “practice ready” lawyers that would presumably include a richer knowledge of New York Law. Impacts on foreign lawyers and other important issues for consideration were also raised.
On this past weekend, co-chairs Millett and Salkin presented their findings to the NYSBA House of Delegates. The presentation to the State Bar can be viewed here (Click on the Nov. 1 House of Delegates Meeting and then click on the Report of the Committee on Legal Education and Admission to the Bar) Co-Chair Millett challenged the notion that the proposed reforms as outlined would actually result in portability. Co-chair Salkin pointed out that the notion of “uniformity” seems misleading given that in NY many uniform rules are not used and that current law school courses focus on statutes different than those used by the UBE . Significantly, three past presidents of the NYSBA testified against the proposed immediate changes including Steve Younger who emphasized the issues raised by New York’s special connection with international lawyers from around the globe admitted to practice in New York State. Many expressed concern for current students facing the July Bar, including Albany Law School Professor Michael Hutter who asked “Why the Rush to Judgment?” Dean Patricia Salkin and Betty Lugo (President-elect of the Puerto Rican Bar Association founded in 1957) expressed particular concern that minority bar associations were not consulted, and that questions on the proposed brand new “New York Law Exam” component have never been tested on previous exams, a “best practice” for all standardized tests that are given as points of entry to higher education and the professions.
Why does this matter?
The contents, pass rates and disparate impacts of the bar exam matter tremendously . This is our profession’s gatekeeping device. It announces what we value and what we do not value. It will be a make or break change for many law students starting in July who have prepared their course of study under different sets of expectations. For many schools and many students, bar exam subjects and testing methods determine their course curriculum rather than what they need to meet student learning outcomes or preparing for practice. This proposed change deserves further scrutiny and evaluation. New Yorkers also deserve that the Court evaluate the success of licensure practices which include clinical evaluation while in professional school as opposed to sole reliance on standardized testing.
See attached SALT Letter-NY Bar opposing the proposed changes.
My Reaction to the Proposed Changes:
- Should proposed changes result in a decrease in the number of doctrinal subjects tested on the NY Bar exam that will be an advantageous change both for making the bar exam more relevant and for allowing law schools and students to craft better curricular choices to prepare them for the jobs and careers of today and tomorrow. (see earlier BLOG post on this issue here.)
- The process for adopting the proposed change is too hasty and is unfair to current third year students and to second year students who have already planned three semesters around the exam.
- The proposed changes have not been studied appropriately. For example, no one knows if the new format, particularly the 50 question NYS multiple choice format, will exacerbate the already disparate impact on graduates of color and/or if it will create a separate barrier for admission to those who will make great lawyers but not particularly good standardized test-takers given the speededness/speediness factor – 50 multiple choice in one hour will make or break you on the NY part!
- The proposed format fails to address the critical need for bar licensure to include evaluation of actual, supervised, and limited practice of law while in law school or immediately thereafter. As a gateway to a client-centered, civic profession, evaluation of the limited supervised practice of law could and should replace – at least some part – of the current standardized testing.
NEW YORK LAWYERS, LAW STUDENTS AND LAW PROFESSORS ACT NOW! Comments due by this Friday November 7th.
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