Portability of the UBE: Where Is It When You Need It?

Nothing is going right for this year’s law school graduates and all others planning to take the bar exam this summer. Living with COVID-19 is stressful. Preparing for the bar exam is stressful. Now put the two together and add the uncertainty that no one really knows when, where, or even if, there will be a bar exam to take. Since March 2020, when the onset of COVID-19 forced most law schools, colleges, public schools, businesses, and government offices to shut their doors and move online, bar candidates have been on a roller-coaster ride of daily insecurity about their future. Putting aside what it means to live with the ever-present fear, trauma, and pain caused by the pandemic, bar candidates have been bombarded with updates and alerts from their state boards of law examiners and the National Conference of Bar Examiners (NCBE), the entities charged with creating, administering, and scoring the bar exam. Instead of being helpful, however, these missives have only added to the frustration and anxiety. This is because each pronouncement is accompanied by a disclaimer that nothing is guaranteed - not the date of the exam, whether you will be seated for the exam, whether there will be an in-person or online exam, or even whether there will be a bar exam. There is no denying the seriousness of the virus and its threat to health and safety, but the disruption to the lives of bar candidates is compounded when each jurisdiction has a different plan and that plan is constantly changing. No one expects the bar examiners to know what is unknowable - such as when a public health crisis will end and a normal life may resume - but bar candidates have a right to better than what they’ve been given. Candidates need to know where they stand. Whatever decision a jurisdiction makes, candidates are entitled to decisive and definite action and that decision must be final, subject only to the most compelling change in circumstances due to the pandemic. The situation is especially acute for candidates in Uniform Bar Exam (UBE) jurisdictions who painfully discovered that the promoted benefits of a “portable” UBE score were highly overrated. Just when “portability” was urgently needed so candidates could sit for the bar exam in one UBE jurisdiction and transport that UBE score to their home jurisdiction for licensure, the door was slammed shut. For example, When New York candidates subject to the priority seating protocol necessitated by the pandemic were encouraged to sit for the bar exam in another UBE jurisdiction, they learned that not all UBE jurisdictions are hospitable to candidates from a fellow UBE jurisdiction. While you can take your UBE score once you’ve earned it in your home UBE jurisdiction and use it to seek admission in another UBE jurisdiction, you can’t necessarily earn that score in another UBE jurisdiction and take it home. This may be just another unintended consequence of portability like forum shopping, but it has added immeasurably to the challenges facing candidates, especially repeat-takers, and might just prove to be the beginning of the end for the UBE. The current situation is extremely fluid with daily changes in jurisdictions’ plans for administration of their bar exam in light of the changing health crisis. No matter what is eventually decided for bar exam day, it will not change the fact that when portability of the UBE was truly needed, it was not there.