Indiana bar applicants’ petition for open-book exam rejected

A late change in the way the Indiana bar exam will be administered has raised sufficient fears of some applicants about the potential for wide-spread cheating that they are asking the test to be open-book.

Forty-three applicants for the July 2020 bar exam signed and sent a petition to the Indiana Board of Law Examiners on Tuesday outlining their concerns and highlighting the extraordinary conditions under which they are having to prepare and take the test.   

The applicants emphasized the change coupled with the global pandemic has upended the traditional bar exam to the point where unconventional steps must be taken. They noted they are having to prepare for the most important test of their lives in isolation with some having to care for children. In addition, they are worried about the software and the possibility of a technological failure on exam day.

The solution, they said in the petition, is to allow the bar applicants to access their notes and class materials during the exam.

“An open book exam is not a free-for-all nor would it delegitimize the exam,” the petition said. “On the contrary, granting open book would ensure that most applicants will have prepared for the exam as normally as could be expected while also controlling the examinees who may take advantage of the newly-announced administration rules.”

In a statement to the Indiana Lawyer, the Supreme Court rejected the request.

“The Indiana Supreme Court and the Board of Law Examiners are pleased to be administering the online remote exam on Tuesday, July 28,” the court said “The test is not open book. As adjustments have been made (such as allowing for breaks and applicants to remain logged into the test for the duration of the day) those have been communicated to the test takers.”

While the petitioners argued their position, they also stressed their gratitude to the board. They appreciate the effort and personal outreach that has been done to make the July exam possible.

“Thank you for the tireless work during these unprecedented times to determine how to administer a bar exam in uncharted territory,” the petition said.

In May, the Indiana Supreme Court announced the state would be offering the bar exam in July but in a dramatically altered format. Because of the COVID-19 outbreak, the typical two-day, in-person test conducted in a large conference hall was slimmed down to one-day exam that would be given remotely. Applicants have been required to purchase external web cameras so proctors can monitor them as they take the test.

The board held a Zoom call with applicants July 20 to inform them of a change in how the exam would be administered, according to some of the petitioners.

Previously, the plan was for the test-takers to log on for a set period of time, complete a portion of the exam, log off and break for 10 minutes. Then, they would repeat the cycle through the remainder of the day by logging on, taking a section of the exam and logging off.

Some applicants have been experiencing technological issues with their internet and being able to log on and off, petitioners said. The board has sought to remedy the situation by just having the test-takers log on once in the morning and stay connected until they log off several hours later for their lunch break.

Concerning to the petitioners is the board’s decision to allow applicants to take unlimited bathroom breaks for up to 10 minutes while they are logged on and taking the test. They believe the opportunity to walk away while the exam is ongoing will provide too much of a temptation to cheat. Under the guise of needing to use the restroom, the petitioners fear, some applicants will step out of camera range and look at their notes or law books for an answer.

Speaking to Indiana Lawyer on the condition of anonymity, some petitioners said they do not think their classmates are inherently dishonest. However, the stakes for this exam are much higher than normal because of the economic and public health uncertainty created by the pandemic, so more test-takers might make “bad choices.”

As a result, some petitioners said, those applicants who do the right thing and take the exam without cheating will be penalized. They maintain the exam is graded on a curve, so those who cheat and get a higher score will crowd out the others. Those who act ethically will be disadvantaged and at greater risk of not getting into the group that gets admitted to the Indiana bar.

The petition argued that in light of the change, the bar applicants should be allowed to access their outlines and course materials during the exam. Having an open-book test would even the playing field for all the participants.

“… (A)s expressed by a large segment of applicants during the Call, concerns exist around these large margins of opportunities where dishonesty will inevitably manifest,” the petition stated. “Permitting an ‘open book’ exam format would remove this variable and create more equity within the testing method.”

Most concerning, some of the petitioners said, is the lack of a fail-safe. When some of the applicants asked during the videoconference call what the board was doing to guard against cheating, the response was the applicants were being trusted to adhere to the ethical and professional standards of the legal profession.

That stance was echoed in the statement from the Supreme Court to Indiana Lawyer.

“The applicants, just like attorneys, have an obligation to conduct themselves at all times in accordance with the highest standards of honesty and integrity,” the court said. “Character and fitness is paramount to a future attorney’s success.”

Petitioners point out the irony that while the board is expecting the applicants to behave in an honorable manner but still requiring them to sit for the character and fitness test.

The petition argued the practice of law is “open book” with attorneys regularly researching legal issues as necessary. Moreover, some of the petitioners said being able to access to their notes

would not delegitimize the bar exam any more than having an open book on a law school exam delegitimized their J.D. degrees.

One petitioner said she hoped employers and other attorneys would be “more compassionate,” especially in these difficult times, than to question the July 2020 applicants’ abilities.

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