In response to the appeals of Board decisions declining to grant Delaware bar admission to two candidates who did not pass the exam, the Court found that the Board of Bar Examiners’ policy of increasing scores for those who had to restart their computers during the exam was fair and the Supreme Court lacked authority to challenge it.

“We have the utmost sympathy for the applicant, and all applicants who had to contend with technical difficulties during the 2021 remote bar exam. But the remedy the applicant seeks—waiver of the board’s and court’s bar admission requirements and a hearing to demonstrate his fitness for bar admission—is not a remedy this court will award,” stated the Court.

The Court remanded to the Board future action on Americans with Disabilities Act claims another bar applicant, Marla Murphy, might pursue alleging that she was not provided necessary accommodations for the exam, but wrote being admitted to the bar without passing the exam is not an allowable solution and she would need to offer another possible remedy.

The Board of Bar Examiners took into account that the software used to take the exam remotely in July 2021 frequently required restarting computers, increasing scores for those who had technical issues that were recorded in the software if they were reported by 11 p.m. on the day the issue occurred.

Restarting a computer was the only issue that could warrant boosting a score, and that criteria and how scores were adjusted were determined with the assistance of a psychometrician.

“According to the Board, because its actions were not arbitrary, fraudulent or unfair, the scoring adjustment for applicants who restarted their computers was rationally related to the Board’s goal of administering a fair exam that accounted for the challenges of remote administration due to the COVID-19 pandemic,” the Court stated.

Murphy, whose score was adjusted, said the Board’s scoring increases were decided in an arbitrary way. The other, unnamed applicant, who also did not pass, said that by not adjusting his score for problems he claimed were just as significant as having to restart his computer, the Board had violated his due process and equal protection rights.

The anonymous applicant did not have to restart his computer and did not report technical hurdles within the Board’s required time period. Six days after scores were already released and the Board indicated it had adjusted for software malfunctions, he filed a form reporting he had experienced repeated buffering, flickering and frozen screens and an inability to type or click throughout the exam.

The Board refused his request to have his exam rescored, stating adjustments were made only for restarts and citing its policy of not changing scores once they have been posted.

You can read more about this decision here.

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