Apprehension Over Virus Precedes This Week's Bar Exam


The Nebraska Supreme Court chamber is shown in a file photo at the State Capitol in Lincoln. Recent graduates of the Creighton University School of Law and University of Nebraska College of Law will sit for the bar exam Tuesday and Wednesday in a Lincoln hotel conference room, despite concerns brought forward by some of the test-takers about the risk of exposure to the coronavirus. The Nebraska Supreme Court, responding to a petition, said precautions are in place but declined to waive the bar exam. (Nebraska Unicameral Information Office)
By 
David Golbitz
The Daily Record

Law school graduates expect the summer after graduation to be stressful. This year’s graduates didn’t count on it being this stressful, though.

In addition to the expected strain of studying for the bar exam, recent graduates from the Creighton University School of Law and University of Nebraska College of Law also face the threat of the coronavirus pandemic.

This means these would-be lawyers had to finish their final semesters at home. Like graduates of other programs, they weren’t allowed to have a normal commencement ceremony or other celebrations out of fear for their health and the health of their loved ones.

“It was hard not to feel like something was taken away from us,” said Jessica Gilgor, a 2020 Creighton Law graduate. “We had to celebrate on our own, without our classmates. It was hard to just watch a YouTube video. I’m sure I speak for many when I say I graduated law school in my pajamas.”

Now, two months after their unorthodox graduation, Gilgor and others in the Class of 2020 are being asked to suck it up once again and sit for the bar exam in a hotel conference room worrying if someone next to them – or sharing the same circulated air across the room – might have contracted the coronavirus.

“We shouldn’t have to choose between our career or our health,” said Gilgor, who was diagnosed with asthma at the age 4 and is considered to be at increased risk of COVID-19. “I know that if I contract COVID it could either be mild like a cold or it could completely ravage my lungs.”

Requesting a Reprieve

Gilgor is not the only recent law school graduate to voice concerns over having to take the bar exam under these extraordinary circumstances.

Along with fellow Creighton Law graduate David Sears and Nebraska Law graduate Dave Gottschalk, she filed a petition with the Nebraska Supreme Court on behalf of the May 2020 graduates of the state’s two law schools asking the court to waive the bar exam requirement.

Instead, the petitioners asked the court to grant a one-time diploma privilege, which would give them licenses to practice law based on their successful completion of their academic programs without requiring them to pass the bar exam.

“It’s not that examinees don’t want to take the bar exam – after all, it is a right of passage in the legal community,” Gilgor said. “We just feel that these circumstances are so extraordinary that something must be done to protect examinees.”

Three states – Oregon, Utah and Washington – elected to grant emergency diploma privilege due to the coronavirus. Other states, including New York and California, have either postponed or cancelled their July exams, or they decided to offer the exam remotely.

A day after the filing, the Nebraska Supreme Court denied the graduates’ petition, citing the precautions that have been put in place to protect examinees from the coronavirus.

Those health and safety measures, developed in consultation with the Lincoln-Lancaster County Health Department, including social distancing in the exam room, requiring COVID-19 tests prior to being allowed to take the exam, temperature checks, mandatory mask wearing and a thorough cleaning of the testing facility.

“Our goal really shifted in this bar exam cycle to making sure everybody stays safe,” said Carole McMahon-Bois, attorney services administrator for the Nebraska Supreme Court. “We have worked very closely with the health department.”

These precautions, however, do not reflect everything the graduates have had to deal with.

Returning to Nebraska

Michael Faz returned home to Grand Prairie, Texas, a suburb of Dallas, once the University of Nebraska concluded its spring semester.

After graduating, he knew that he would be returning to Omaha to take the exam, and he made travel arrangements to arrive the day before the test and to fly home the day after. When he received word of the new COVID-19 test requirement, however, he became concerned.

Faz conveyed these concerns to the Nebraska Attorney Services Division and was told he could have the coronavirus test taken in Dallas so long as the results were sent here before the first day of the exam. Faz immediately looked into local testing options, but he says COVID-19 tests in Dallas can take a week for an appointment and up to 10 days to receive results.

The only option Faz could see was changing his flight and hotel arrangement, so he would be in Lincoln on Friday to take the test offered by the Nebraska Supreme Court, which added nearly $1,000 to the cost. Dismayed, he sent an email to Nebraska Law Dean Richard Moberly.

“I do understand the added stress,” Moberly said. “Taking the bar exam is stressful generally, what the bar commission seems to be doing is trying to put in extra conditions so health concerns are alleviated somewhat.”

Well aware of the financial strains the pandemic was causing out-of-state graduates, Moberly arranged for emergency grants to be made available to help cover costs of changing a flight or adding additional nights to a hotel reservation. Moberly also arranged with the University of Nebraska-Lincoln to open university housing at a rate much lower than that of area hotels.

UNL extended the offer of low-cost lodging to Creighton Law graduates who were in a similar situation, too. In addition, Creighton Law alumni worked with the school to create an emergency fund to help offset the extra financial burden the coronavirus has caused.

“I have tried to take as much pressure off students as I can,” Creighton Law Dean Josh Fershee said. “Creighton Law offered to refund any student’s bar exam fees if they could not take the test if their state would not provide a refund.”

Peace and Quiet

The coronavirus has also made studying for the bar exam more difficult for many graduates who live with family or roommates.

Normally, they would have the option of studying in the law library or maybe a coffee shop, but the libraries are closed and spending time around others in an enclosed space doesn’t sit well.

Andrea Snowball lives on the Winnebago tribal reservation in western Nebraska with her four children and husband, who serves as vice chairman of the tribal council and chair of the tribe’s pandemic task force.

“Studying to graduate was basically like working full time and taking my kids to work with me every day while also having to be their teacher for four different grades,” Snowball said. “I couldn’t send any of my kids to play with friends or do activities outside of the house because doing so carries the risk of catching the coronavirus.”

The peace and quiet needed to study has been in very short supply, Snowball said.

“Unless my husband takes the kids out of the house for hikes or to swim at the river, there is really no silence,” Snowball said. “Studying means waking early up while everyone is still sleeping to get as much work done as possible.”

Fershee said Creighton has helped find “safe, quiet study spaces,” which is great for graduates who live in the metropolitan area, even if it’s not as much help for those who live farther away.

“Just to qualify to sit for the exam I have to drive four hours round trip only four days before the exam to get tested for COVID-19,” Snowball said. “This requires me to unnecessarily leave my community to travel to Lancaster County, which has rising cases of coronavirus, just days before the exam.”

Choosing Between Health and Careers

The hardships facing the students sitting down to take the bar exam Tuesday and Wednesday aren’t unique to them. It’s the nature of a pandemic that it impacts nearly everyone.

In its ruling, the Nebraska Supreme Court justices say that, “during these unprecedented times, Nebraska lawyers, judges, and court staff have continued to innovate and adapt.” Courts have stayed open, and lawyers have continued practicing law – at times, putting themselves in risky situations where they were exposed to the coronavirus.

“They have demonstrated ongoing strength, calm, flexibility and creativity in adapting to the challenges of operating differently in administering justice,” the court wrote. “We expect no less of the applicants who sit for the bar examination.”

Gilgor, however, believes this expectation to be disingenuous.

“The court did not have to choose between their health, or the health of their family members, or their careers in preparing for the bar examination,” she said. “They did not have to sign waivers of liability assuming responsibility if they become sick during the bar exam. The court did not have to study in the comforts of their own home if they did not want to. They could go to local libraries or even study on campus at the law library. They had the availability of summer camp programs for their children so they could have a quiet house.”

While Gilgor agrees the pandemic shouldn’t have halted the administration of justice, she said that much of that justice is being provided “from home instead of courtrooms.”

Where normal court operations are taking place, the pandemic has made its presence felt in the courtroom.

Last week, when Nebraska attempted to hold its first in-person jury trial since the pandemic began, Douglas County District Court Judge Marlon Polk declared a mistrial after a suspect’s sister tested positive for COVID-19 only two days into the proceedings.

“It seems silly for us to have to jeopardize our health when the pandemic is not resolved,” Gilgor said. “It’s especially more so when bar examinees are being told that we are being made an exception to direct health measures. We shouldn’t have to choose between our career or our health.”

The petition seeking diploma privilege included more than 30 impact statements from graduates who expressed apprehension at being asked to take the bar exam under the current conditions. The impact statements were all anonymous, as many graduates were concerned that speaking out about their misgivings would negatively affect their character and fitness evaluation.

“This is why I signed my name to the petition,” Gilgor said. “At this time, I believe holding the bar exam is an unsafe and dangerous crap shoot.”

Protecting the Public

Another reason provided by the court in its order denying diploma privilege is the “obligation to protect the public and the integrity of the profession.” The bar exam seeks to ensure minimum competence of those admitted to the practice of law.

McMahon-Bois said the state has an obligation to protect the public. The average pass rate for graduates of the state’s law schools is only 72.2% – meaning about a quarter of test-takers do not meet the standard imposed by the examination.

“We just can’t take the chance,” McMahon-Bois said. “If you have a 25% reduction in pass rate and you give those people licenses and say go practice, the public is hurt.”

Gilgor points out that Wisconsin has granted diploma privilege to graduates of the state’s two American Bar Association-accredited law schools for years and that there are other ways to ensure minimum competence.

“There are ways the Nebraska Bar Commission and the court could adapt to the current situation in order to hold new lawyers accountable should they have granted diploma privilege,” Gilgor said.

Despite all of their concerns, Gilgor, Faz, Snowball and most of their fellow graduates are still planning to sit for the bar exam this week.

“I plan to continue to wear my mask in public spaces, stay 6 feet away from people, use hand sanitizer and not interact with anyone unnecessarily to mitigate my exposure to the illness,” Snowball said. “Hopefully, that will be enough to keep me from getting sick and bringing coronavirus back to my community.”

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