[blindLaw] FW: CA State Bar to Consider Partly Reviving Remote Exam for Non-TA Applicants Only?

[tim at timeldermusic.com]

Folks planning to take the California bar exam or who have a connection to the jurisdiction might consider offering supporting comments to the below.  I find it troubling that blind applicants who need testing accommodations wouldn’t be able to get the same remote access to the bar exam as others.  I haven’t done a deep dive into the below to understand the scope of the proposed restrictions.

 

 

 

 

From: Benjamin Kohn <benjamin.s.kohn at gmail.com> 
Sent: Friday, July 21, 2023 5:14 PM
To: Timothy Elder <telder at trelegal.com>
Subject: Re: CA State Bar to Consider Partly Reviving Remote Exam for Non-TA Applicants Only?

 

Hi again, 

 

An update:

 

1. The State Bar's deadline for written public comment on the sufficiency of the amendments made to the original TA rules revision proposal we mustered overwhelming comments opposing in January is now imminent and due on 7/31. To increase the burden of making comment and recruiting a coalition, and to make it more difficult for masses to sign onto templates from other peoples' comment, the State Bar also required that each component of the proposal be addressed in separate letters, separately uploaded with the right file names, with a distinct questionnaire on the submission. I can't stress strongly enough how bad the optics are going to be if after the showing we mustered last time If I'm nearly the only one still is commenting that the amendments made still do not remedy most (or the worst) of the discriminatory aspects of the State Bar's system, or that the Working Group's reasons for rejecting our last round of comments doesn't stand up to scrutiny. That all but guarantees the CBE and Board will let staff proceed on only those amendments, and spin the PR as if they voluntarily resolved all the problems we've been complaining about. If you can, please try to submit a comment before 7/31? Drafts of what I plan to submit are at: https://drive.google.com/drive/folders/12WjU7Qll7Pl5ywIf7Qmqmdq6dHCFwg2E?usp=share_link

 

2. The State Bar has opened, with the same 7/31 deadline, a separate webform to collect public comments on their plan. to cut costs, including by returning permanently to remote testing for the essay parts of the exam, but continuing the same Forced In-Person Policy for TA applicants to deprive them of the standard benefits nondisabled applicants get from remote, as they did during Covid (submission instructions in the same drive). Please try to comment on tha too if you can.

 

Thanks,

Benjamin Kohn

 

On Fri, Jun 23, 2023 at 9:56 AM Benjamin Kohn <benjamin.s.kohn at gmail.com <mailto:benjamin.s.kohn at gmail.com> > wrote:

They are proposing at least one "cost cutting" option that would make remote testing a standard condition again for the parts of the exam not involving the NCBE. When they had remote testing as a standard condition (if for the whole exam) during the October 2020-July 2021 exams, they had a similar policy and practice to the one you mentioned in New York, which I was among the victims of. The implication would be that if they made remote testing standard, they would reimpose that same policy and practice of requiring disabled applicants whose accommodations would be more inconvenient to securely provide remotely to test in-person, even though they could have been accommodated remotely with slightly more burdensome alternative exam security methods.

 

The MBE would still be in-person for everyone, and the whole thing would be for some disabled applicants. The change would be permanent, not an emergency mitigation. They make the in-person MBE (and in-person essays for those who they won't accommodate remote) even more disproportionately burdensome on ALL disabled applicants receiving testing accommodations, though, by adding the modification that only ONE testing accommodations site will be offered at the State Bar's office (the one they choose). 

 

ALL TA applicants then would have to travel to the location of that office from everywhere in the State, which for some will be hundreds of miles (depending how close they happen to live to the State Bar's chosen office), to take the exam with accommodations. In contrast, nondisabled applicants will continue to be offered multiple test site options at registration, including options in both Northern and Southern California, another facially discriminatory situation that's brand new and was not at issue in 2020-2021.

 

No, the written comment opportunity in my other email relates to the notice-and-comment rulemaking they're doing on the procedural rules governing administrative adjudication of TA requests and the substantive criteria for what should be granted, many of which violate Title II. This is a separate "cost-cutting" initiative agendized for discussion today and decision on 6/28. It doesn't have to go through rule making procedures. That said, public comment can be made for the meeting on Wednesday on the remote issue. You would need to email CBE at calbar.ca.gov <mailto:CBE at calbar.ca.gov>  by the end of Monday to submit it in writing, or you could do so via Zoom around noon on 6/28.

 

Thanks,

Benjamin Kohn

 

On Fri, Jun 23, 2023 at 9:15 AM Timothy Elder <telder at trelegal.com <mailto:telder at trelegal.com> > wrote:

They are offering remote access to others while requiring in person for all accommodated examinees?  This came up in New York during the pandemic and was easily resolved.  Does the written comment opportunity that you linked to address this recent remote access issue?  

 

 

Timothy Elder 
Attorney 
TRE Legal Practice 
1155 Market Street, Tenth Floor 
San Francisco, CA 94103 
Phone: (415) 873-9199
Fax: (415) 952-9898

 
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From: Benjamin Kohn <benjamin.s.kohn at GMAIL.COM <mailto:benjamin.s.kohn at GMAIL.COM> > 
Sent: Thursday, June 22, 2023 11:18 AM
Subject: CA State Bar to Consider Partly Reviving Remote Exam for Non-TA Applicants Only?

 

Hello,

 

The CA State Bar posted this presentation for discussion at tomorrow's CBE meeting pertaining to cost-cutting initiatives for the California Bar Exam starting 2/2024:

https://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000031115.pdf

 

It appears to me that they're proposing permanently changing the essay portions of the exam not licensed from the NCBE to be remote as a standard condition. They also, in the same slide, suggest that Testing Accommodation applicants will be assigned to a single in-person site (seemingly for both essay and MBE), which they propose should change from hotels to one of the State Bar's offices.

 

In 2020-2021, when remote exams were also standard conditions for nondisabled applicants, the State Bar required many of the TA applicants to test in-person, because certain accommodations would have required nonstandard examination security methods (and thus slightly higher financial/staff resources) to provide them the same levels of assurances against opportunity to cheat.

 

It appears to me they would like to resume the practice, permanently this time, but even worse, increase the added burden of in-person testing by making only one site available statewide for applicants with accommodations instead of the many hotel options in each region currently offered. This would mean that most disabled applicants would have to not only test in-person the whole time when more than half would be at-home for everyone else, but also that many would have to travel much larger distances (for some, the opposite end of the State) to take the exam if they didn't happen to live near whichever of the State Bar's offices it selected to host TA applicants.

This proposal will be introduced at the 6/23 CBE meeting and next steps for action will be discussed and deliberated at another CBE meeting 6/28. Public comment can be made via Zoom at either or both:

6/23/2023 CBE Meeting (9 am PT): https://calbar.zoom.us/j/97196353546

6/28/2023 CBE Meeting (12 pm PT): https://calbar.zoom.us/j/92765434604

 

I'd also like to remind everyone that public comment is again being solicited regarding the State Bar's TA Rules Revision. Even those who submitted public comment December 2022-January 2023 should update and resubmit. Otherwise, State Bar Staff will say their first round of amendments adequately addressed the concerns raised in the overwhelming public comments we mustered last December-January, when those amendments (while better than the last proposal) did not fix the worst aspect of their discriminatory procedural rules. We need to make clear that the same overwhelming coalition still feels unsatisfied by the revised proposal in the second public comment period, and any more that follow as they make incremental amendments to see how little they can get away with, and forestall them completing on the current proposal and then claiming they addressed all the problems people have been having in their PR messaging and litigation responses.

 

In particular, 2 weeks initial petition decision turnaround is needed instead of 60+ days even if the other reforms fail to free up enough staff capacity to do so without hiring more staff, and so shouldn’t be delayed years for that proposed experiment; applicants should get at least 30 days to appeal if they petition at least 2 months before the exam; no accommodation requests should categorically be “not offered” for individualized consideration or require attestation of “exceptional need” rather than what best ensures a level playing field, unless the State Bar has demonstrated such accommodations to constitute fundamental alteration or undue burden; applicants should have the right to a hearing on denied requests if they appeal and that appeal can’t be granted on the papers, just like applicants who they’re considering denying a moral character finding on, because it implicates the liberty interest in pursuing a chosen profession just as much as that does for disabled applicants; etc.

Please submit at:

https://www.calbar.ca.gov/About-Us/Our-Mission/Protecting-the-Public/Public-Comment/Public-Comment-Archives/2023-Public-Comment/Revised-Proposed-Amendments-to-the-Rules-of-the-State-Bar-Pertaining-to-Testing-Accommodations

 

Thanks,

Benjamin Kohn

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