A Disconnect in Legal Education: Former 3Ls Refuse to Take the Bar Exam in Person. Current 3Ls Demand to Take Classes in Person.

I am skeptical how many current students actually want to learn on campus this fall. When push come to shove, they will realize that in-person instruction is too risky.

|The Volokh Conspiracy |

In May, I sketched what a typical university day would look like in the COVID-19 Era. I wrote that "students who want to be on campus may find the experience very, very different than they expected." Since then, I've heard from professors and administrators across the country how this post has affected their thinking. It will probably the most consequential thing I'll write this year after my NYT op-ed on impeachment.

Now, we have some new developments in this debate. Law school deans and recent law school graduates are demanding that state bars eliminate in-person bar exams. The argument is simple: during the epidemic, it is not safe to cram thousands of people inside for a two-day exam. I am very sympathetic to this argument. As a result, the deans and students argue, state bars should allow applicants to take the exam online, or alternatively, grant a "diploma privilege." The Texas Supreme Court recently chose the former option, though over a divided vote.

This steadfast opposition to an in-person examination creates, in my mind at least, a disconnect: Former 3Ls refuse to take the bar in person, but current 3Ls demand to take classes in person. The tension is palpable: the risks of spending an entire 14-week in person are far greater than sitting for a two-day exam. Moreover, it is much easier to maintain social distancing in a cavernous convention hall than in cramped classrooms.  Why are students so desirous to assume, the latter, greater risk, but refuse to accept the former, smaller risk?

Maybe there is a cynical response: students will always favor the path of least resistance. Eliminating the bar exam is something all students would prefer. But I reject this cynicism. Many students have come forward, quite candidly, with legitimate personal reasons why an in-person bar exam is a bad idea. But if we reject the cynical answer, perhaps the conventional wisdom on in-person classes is also wrong.

Maybe students really do not want to learn on campus–or to state it more precisely, students are willing to make unrealistic demands of universities, and even threaten class-action lawsuits over high tuition bills. But when conditions prove too difficult, they'll prefer to stay home.  Sure, some students make bold demands of deans that they want to be on campus. And students explain in polls that they prefer to learn in campus. But when push come to shove, they will realize that in-person instruction is too risky; or in the alternative, not what they expected.

In short, I fear administrations nationwide are taking bold steps to force professors into the classroom, so they can accommodate students on campus, when students are not really interested in learning on campus under current conditions.

NEXT: Part I: Barr v. AAPC and Judicial Departmentalism

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  1. You are basically calling for a permanent shutdown of on-campus learning, since there’s a new swine flu waiting in the wings, Wuhan virus will never be eradicated any more than any other coronavirus has ever been eradicated [e.g., the common cold], and many normal flu seasons are also seriously lethal at near the level of Wuhan. Especially if you eliminate the over-70 cohort.

    1. Sure what it seems like. “Too risky my eye! Everyone’s gone bonkers over this. Flatten the curve — whoops, that was too easy, invent a new phrase to save face and not have to open up again too quickly as if we had made a mistake. We’ll pretend it’s to prevent deaths, yeah, that’s the ticket. Never mind that we’d have to stay in panic mode until the entire world’s been vaccinated, we’ll cross that bridge after we’ve crossed it, or something.

      1. The top management of our university has said that the model for the fall will be emblematic of what we will deal with for the next few years.

    2. The “common cold” is primarily rhinoviruses, not coronaviruses.

  2. “When push come to shove, they will realize that in-person instruction is too risky.”

    Have you got the slightest understanding of the age dynamics of this virus?

    Weekly Updates by Select Demographic and Geographic Characteristics

    Unless you’re past middle aged, this virus is running about as deadly as your average influenza virus. Sure, if you’re an instructor in your late 60’s or 70’s, you should be careful about practicing social distancing, wearing a mask, and washing your hands frequently. The students are in no real danger.

    They’re more likely to die of a traffic accident in their daily commute if they live off campus!

    Really, it was understandable being hyper-cautious about this virus at first, given that it emerged near a bio-warfare lab. But at this point we know who’s in danger, and who isn’t, and these precautions are getting to be absurd!

    1. Oh dear boy, haven’t you got the memo? The concern is not that students will die, it is that they will get infected and carry the disease home to dear old gramps and gramps will die.

      1. Whatever the concern, the level of concern is irrational. I wouldn’t advise a law student who’d been exposed to the flu to visit gramps, either, while they might be contagious.

    2. Came here to say just this. The average law student is what? 25 years old? There is very little risk to this age group other than for students who have pre-existing conditions. If Prof. Blackman’s point is just that there’s more risk to students attending classes than to people taking the bar exam, that’s fine. But the risk is extremely low in both cases.

    3. You do understand that “It’s okay if you get seriously ill because it’s unlikely you’ll die” is a really stupid position to take, right?

  3. This one doesn’t seem like a mystery.

    1) In-person school has value to at least some students. They tried remote learning last semester and they didn’t like it. So many of them would prefer to either have in-person classes or reduced tuition.

    That’s probably good news for instructors like Josh – there’s something about school that students appreciate, whether it’s that they feel that they get a better education with an in-person component, better networking, or whatever.

    My kids definitely don’t feel like they’re learning as much remotely, FWIW, plus they miss their friends, their club activities, etc. They feel like they’re missing their educational years and just being pushed into the workforce less prepared than otherwise and missing a key social experience. Josh may be right that they’ll eventually come to the conclusion that it’s the best of a bunch of bad options, but it still sucks.

    2) By contrast, the bar exam has very little value for current test-takers. Its main value is to existing lawyers, by reducing competition and increasing status. (And if we’re being generous, to clients by reducing the number of lawyers who can’t pass the bar.)

    In my opinion, some risk is acceptable to students for an activity they value, but not as much for one they don’t.

    1. You’ve got it exactly right. It should also be noted that the virus brings a negligible risk to people under the age of 35 (death rate lower than that of a typical flu for this age group). See Brett Bellmore’s CDC link above.

  4. Digital is the future, and many classes should be taught online permanently. Record the lectures, create interactive quizzes, use remote proctoring. Maybe that’s not the best way for law classes, I don’t know. But for technical classes in my experience online is better overall.

  5. “cynical answer”

    You mean “realistic”.

    They think they can avoid the bar exam entirely so they articulate “legitimate personal reasons” so as to achieve the aim. Worth a shot.

    Thee is very little risk but if moderate precautions are used, no risk.

    Using Ohio as an example, you have OSU and several other colleges with unused lecture halls. Easy to just book multiple venues so everyone is spread out. More proctors are needed but plenty of lawyers in Columbus or just use Supreme Court employees.

    1. Exactly on the cynical answer. Discounting it is silly particularly when we are discussing a law degree. A law degree’s value is in the accreditation (right to sit for the bar to become part of a cartel) and the networking. Only a small % of its value is related to actual instruction.

    2. Law school graduates making a disingenuous argument (too risky to sit for bar exam) that cuts in their favor? I’d say any student not seeking unfounded advantage should summarily fail the exam.

  6. This post is a perfect example of what is called Occam’s Butter Knife, which is when the you come up what you think of reasons A, B, and C for the phenomena of Y, when you don’t want to admit that it’s X.

    1. I’m appropriating that, thank you. But there’s another problem currently: stating the truth may get you a visit from Occam’s Bludgeon of Political Correctness.

      1. I stole it from somewhere else on the internet, not sure the original source. And your observation is quite correct. It’s hard to “have a conversation” about anything when the downsides of honesty are so negative.

  7. Agree with J Mann. The students recognize that online school is vastly inferior to in person. They would prefer in person, or vastly reduced tuition. It’s that simple.

    1. and by same reasoning, they recognize that online bar is vastly inferior to sitting for the real thing, so they are in favor of that option.

  8. How about the realistic point of view?

    1. The bar exam is coming up right now, just when we absolutely do not want people congregating in large groups in-doors. Well, except for the loony people who comment here. It makes perfect sense that no one wants to sit for the bar exam.

    2. On the other hand, emotions are more mixed w/r/t classes, which are in the future. I’m guessing that there is a divide in opinion, but it skews toward the “want to be there” because a lot of students just got screwed out of opportunities that were only available in person. It will be hard to do traditional activities like law review, moot court, trial team, student clubs, not to mention networking for internships, seeing friends, and so on.

    The actual class component of law school? Eh, whatever.

    1. You might be right that only the loony people who comment here want people (at least the young who, you know, attend law school) congregating in large groups indoors. That’s probably because, according to the CDC, the risk to this population is minimal (death rate below that of the flu). The more young people who get exposed, the faster we build up herd immunity. Of course we need to make sure that these young people don’t end up exposing the particularly vulnerable. That’s not hard to do. But feel free continue on with your uninformed ad hominems instead of engaging with the arguments.

  9. “I fear administrations nationwide are taking bold steps to force professors into the classroom, so they can accommodate students on campus, when students are not really interested in learning on campus under current conditions.”

    I think that you, JB, have the ground truth bass-ackwards.

    1. What’s wrong with professors in classrooms despite a bit of risk. They have jobs to do, that job is best done in person, and they are being paid for in person services.

      Somehow my particular college within a larger university is doing just fine. We 1,500 physicians wash our hands, and wear a mask when appropriate. We teach at less than arms length apart, sometimes for hours on end in surgery, procedures, and other hands on activities. No plexiglass bubble for us. We are academics with labs, research and publications too. We are not coddled liberal arts professors. There are more than 20 bodily fluids in a human, and I am proud to say I have been splashed with every one of them. Pisses me off when my brothers on the ‘academic’ campus scamper for the hills, demanding, and getting, mostly on-line work for this Fall. Top 10 university my ass.

  10. At what point do the calls and for some in power the decision to allow a diploma exception call into question the entire constitutionality of the bar exam period? There is a fundamental right to earn a living in you chosen profession. Restrictions have to pass some form of heightened scrutiny. If it is necessary for consumer protection then it is necessary whether there is a pandemic or not.

  11. What “on campus” is turning out to be this fall is certainly not the “back to normal” that most students were probably envisioning. Professors at my institution are going to be leading in-person Zoom sessions with half the class present each day. There is absolutely no pedagogical benefit to sitting in a classroom watching me on Zoom vs. sitting at home watching me on Zoom, and the risks are so much greater in the former category.

    1. You describe a setup designed to do both in person, and remote learning a disservice. You cannot do both simultaneously well. Different skill sets and communication methods are required for each.

      If the class must be split, then the students would be best suited to have the professor fully present in the in-person class, no zooming. Later in the day host a zoom only class, no in-person students. Each session would be done optimizing the strengths of each pedagogic method. Student experience optimized.

  12. Classes “simulate” human interactions that are akin to the jobs lawyers may having passed the bar exam. The bar exam has no practical utility other than being passed.

  13. “A disconnect in legal education”. That was a great post. You are also welcome to our academic services such as a college term paper

  14. I think the legal system will survive a year or two without new lawyers. Maybe they can find a productive line of work.

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