BILL NUMBER: S5324

SPONSOR: HOYLMAN
 
TITLE OF BILL:

An act to amend the judiciary law, in relation to providing for an open
book bar examination

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1 of the bill amends section 460 of the Judiciary Law

("Examination and admission of attorneys") to add that if the Governor
has declared a State Disaster Emergency under the Executive Law, the
examination for admission to practice law shall conducted in an open
book format.

Section 2 of the bill is the effective date.

 
JUSTIFICATION:

              

In October 2020, as a result of its inability to hold an in-person bar
examination due to the COVID-19 pandemic, the NY Board of Law Examiners
(BOLE) conducted a remotely administered Uniform Bar Examination (UBE),
which examination was created by the National Conference of Bar Examin-
ers (NCBE) as an emergency alternative to the bar examination as custom-
arily given. It consisted of roughly half the usual and customary bar
examination. The February 2021 exam is slated to be a complete UBE
administered remotely, multiplying the problems with remote adminis-
tration.

Critically, the October exam administration required certain computer
configurations and power, prompting several test takers to have to
purchase, rent or borrow newer laptops, incurring additional expense and
stress. Despite this, many test takers encountered computer problems in
taking the test, including, but not limited to, losing connectivity
during the test and difficulty uploading the video of their taking the
exam.

Even more critically, the remote exam administration required electronic
surveillance to ensure security. This surveillance mandated the use of
Artificial Intelligence facial recognition software, which is notorious-
ly flawed in its recognition of black and brown faces, those with facial
hair and those of people with certain disabilities or who are transgen-
der. Test takers experienced difficulty with this in the downloading of
software in advance of the test and during the test. Experts believe
that such surveillance violates the 4th Amendment to the U.S. Constitu-
tion.  Video of the test taker is uploaded to ExamSoft, the software
vendor, for review post hoc, further raising privacy concerns. The fact
that ExamSoft as a condition of the test taker downloading its software
in order to sit for the exam, is authorized to share video with law
enforcement raises still additional privacy concerns.

Moreover, the surveillance software mandated that test takers look at
the computer for 90 minutes or more at a time (candidates with disabili-
ties had to sit in-frame for 50% or 100% longer periods of time). During
such times, test takers could not avert their eyes from the frame or
risk being flagged for cheating. Test takers were also forbidden to take
a break from the frame of the camera for any reason. This disadvantaged
test takers who needed frequent restroom breaks because of a medical
condition or because they were menstruating. New York test takers
reported urinating in bottles throughout the test while being observed
by remote proctors, losing bladder and/or bowel control, and experienc-
ing severe bleeding.  Others experienced physical pain as a result of
not being able to move their bodies or heads; migraine headaches trig-
gered by uninterrupted screen time; still others experienced frightening
panic attacks. One pregnant woman in another state went into labor but
would not leave the frame until she had finished the test for fear of
being flagged for cheating.

This would all be obviated by administering the bar exam as an open book
exam. Lawyers practice law by reference to texts, not by memory.  Not
only would this reflect the reality of law practice but would eliminate
the need for the intrusive remote monitoring software, including facial
recognition of test takers, during the upcoming February 2021 bar exam.

If the governor has declared a state disaster emergency pursuant to
section twenty-eight of the executive law the exam will be conducted in
an open book format. The State Board of Law Examiners shall promulgate
rules and regulations as necessary to carry out the provisions forth-
with.

 
PRIOR LEGISLATIVE HISTORY:

None, new bill.

 
FISCAL IMPLICATIONS:

To be determined.

 
EFFECTIVE DATE:
This act shall take effect immediately.