AASE Statements

AASE Cautions Against Use of Digital-Only Exams

The Association of Academic Support Educators Cautions Against Digital-Only Bar Exams

Multiple jurisdictions, including the state of California, have announced plans to move forward with a digital-only bar exam that will prohibit examines from utilizing print materials during standard exam administration. The Association of Academic Support Educators* cautions jurisdictions against completely removing the option to provide examines with print resources. The Association’s concerns are based on current research indicating the superiority of print reading for comprehension, particularly when under time constraints.[1] The Association urges the National Conference of Bar Examiners and other state examining boards to reconsider plans to restrict bar exam administration to a purely digital format.

While many of this current law school generation grew up reading online, the research surprisingly shows that the “screen inferiority effect has increased (emphasis added) in the past 18 years,” a finding that is consistent across age groups.[2] Even when the amount of text is small and does not require scrolling, such as a single multiple-choice question, performance was harmed under time pressure conditions.[3] Although more studies are required, the need to scroll during reading may also be a “possible obstacle to comprehension during digital reading.”[4] A digital-only exam will require examinees to scroll through multiple pages of documents, thus introducing the added complexity of timed, digital-reading comprehension to which examines were not exposed during three years of law school. Contrary to the aim of capturing practice-readiness, an exam that requires digital reading, note-taking, annotating, and utilization without physical copies or scratch materials, under timed conditions, does not mirror a task entry-level lawyers face.

The decision to deliver a digital-only bar exam represents a consequential departure from the status quo of paper copies and scrap paper currently provided to examinees. This move to a digital-only bar exam is reminiscent of bar exams administered during the COVID-19 pandemic. Based on limited data from those administrations, online examinees performed significantly worse than those who took the exam in person.[5] Moreover, a sudden shift to a digital format brings with it heightened risks of technology malfunctions. In the event of software crashes, power outages, or unstable internet connections, examinees’ performance could be severely compromised through no fault of their own. These (un)anticipated disruptions can compound anxiety in an already high-stakes setting, potentially affecting overall performance. Given these risks, relying on a digital platform for a licensing exam presents serious concerns regarding fairness and uniformity across testing conditions.

Research also indicates that lengthy digital reading can exacerbate eyestrain, fatigue, and reduced concentration, especially in high-pressure test environments.[6] Extended screen use could introduce an additional barrier to performance for examinees with visual impairments or those prone to migraines.[7] In these cases, providing a paper option might mitigate physical discomfort and align with universal design principles to make the test accessible to the widest possible range of candidates. A move to a digital-only bar exam without scratch paper also raises equity concerns and access to the practice of law. In jurisdictions where bar examinees are permitted to use their own laptops or devices, those examinees who can afford to purchase larger-screen devices will be advantaged as they will have more real estate on their screens, thus decreasing the amount of scrolling an examinee needs.

Additionally, for those examinees with ADHD, research shows that “… under task conditions that favor good metacognitive skills, specifically self-monitoring, learning from digital texts leads to inferior reading comprehension for students with ADHD relative to their peers without ADHD.”[8] Similarly, English as a Second Language learners and neurodiverse individuals may benefit significantly from tactile strategies, such as physically highlighting words and flipping pages, to reinforce comprehension. By removing or limiting these tactile strategies to a digital-only format, NextGen will likely significantly disadvantage candidates relying on these learning methods to mitigate reading difficulties.

A digital-only format is too risky for a high-stakes professional licensure exam when prospective applicants have not had sufficient opportunity to prepare for the exam format. The Association urges bar examiners in all jurisdictions to continue the current practice of providing paper copies of the exam, along with scratch paper and a writing instrument as requested and/or as needed for accommodation. As jurisdictions make the cautioned move to a digital-only exam administration, we advocate for robust contingency plans and training materials. Examinees should be given ample opportunities not less than 1-2 full academic years to practice with the testing software, experiment with digital annotation features, and receive clear guidance on managing potential technical issues. While not a substitute for print-based options, these measures are the minimum necessary steps to safeguard fairness and mitigate the unique burdens of a digital-only bar exam.

Scattershot Rollout of NextGen Exam May Exacerbate Disparate Bar Pass Outcomes

Scattershot Rollout of The Nextgen Bar Exam May Exacerbate Disparate Bar Pass Outcomes Along Socioeconomic and Racial Lines

Law school graduates will not be sufficiently prepared for the new bar exam scheduled to be administered in 2026. Twenty jurisdictions have already adopted the NextGen bar exam and six of the 20 have committed to administering the exam in 2026 even though crucial information about costs, scoring, portability, and the substantive content is not yet available.[1] Only fractional information has been released about the exam, and there have been far too many substantial changes to that already fragmented information to allow academic support faculty and commercial bar review providers to effectively prepare current law students who will be in the first wave of NextGen examinees.

Amy Meyers, Director of Academic Skills & Bar Success at Willamette University College of Law, reached out to the Association of Academic Support Educators desperately seeking help to fill in the many information gaps about the NextGen exam. In an email to the Association’s president, Meyers pleaded:

“My knowledge is based solely on the NCBE press releases and what I can gather from the [academic support listserv]. As a lawyer, I don’t like relying on hearsay. As an educator, I don’t like trying to teach based on the breadcrumbs I can piece together from those sources. It seems to me that my students should be preparing for such a high-stakes test as the NextGen Bar Exam with more clarity than I can provide. That’s not a comfortable feeling.”

The proprietor of the NextGen exam, the National Conference of Bar Examiners (“NCBE”), has published only piecemeal information distributed over sporadic intervals about the exam’s substantive content and format. Recent statements by the NCBE have contradicted the entity’s earlier promises about the scaled-down exam. The incomplete and inconsistent messaging from the NCBE could potentially impede the performance of bar takers and further contribute to disparate bar passage rates along socio-economic and racial lines. This scattershot approach to communicating essential information leaves law school academic support faculty without the clear, consistent, and reliable guidance necessary to prepare graduates for the new bar exam. With the added emphasis on bar passage in accreditation standards and law school rankings, legal educators cannot afford to silently acquiesce to the significant uncertainties presented by this rollout of an exam that will determine the future careers of law school graduates and the standing of law schools.

After careful scrutiny of all released information, we find the small set of sample questions covering only limited subject matter, coupled with the unclear description of the most recent changes to the not-yet-released exam, wholly insufficient to offer fair and reasonable notice as to the format, content, scoring, scaling, and resources available for the licensure exam. Our specific concerns are summarized below:

Contradictory Information Regarding Exam Scope and Content

On May 25, 2023, the NCBE announced the eight subject areas to be tested on the NextGen exam: Business Associations; Civil Procedure; Constitutional Law; Contracts; Criminal Law and Criminal Procedure; Evidence; Real Property, and Torts.

The NCBE stated, that the new exam will no longer require examinees to have a base of knowledge in the areas of conflict of laws, family law, trusts, and estates, or secured transactions, but these topics may still be included in certain legal scenarios for which examinees are provided relevant reference materials . . . .[2]

However, on May 29, 2024, the NCBE contradictorily announced that from July 2026 through February 2028, family law and trusts and estates will appear on every NextGen exam in a performance task and may also be included in integrated question sets.[3]

In addition to the late release of the significant additions of two areas of black letter law, we are deeply concerned that the NCBE has not provided a content scope outline for Trusts or Estates. The test maker has stated that these content outlines will be published by “late 2024,” but that illusive commitment still leaves law schools with less than three full semesters to make the necessary adjustments to curricular content.

The information currently provided by the NCBE is too vague to allow prospective NextGen examinees to thoroughly prepare for the exam. Due to these uncertainties, we urge the NCBE to limit the subject matter of the exam to exclude Family Law, Trusts, and Estates. Bar applicants taking an exam in 2026 should have the benefit of knowing the scope of exam content when they entered law school. To do otherwise will place early NextGen applicants at a comparative disadvantage to applicants who will be taking the UBE in 2026 and 2027.

Insufficient Pilot Testing

The NCBE conducted pilot testing for the NextGen exam from August 2022 to April 2023, but only limited and self-reported information is published about the outcomes of the pilot testing.[4]

Because the pilot testing took place before the decision to expand the scope of the NextGen exam to include Family Law, Trusts, and Estates, we are concerned about the reliability of the pilot test as a predictor for the timing and/or performance on the NextGen exam. We urge the NCBE to conduct additional pilot testing to assure all stakeholders that there will be stability between scores for the current Uniform Bar Exam and the NextGen bar exam.

Legal Reference Materials are Essential to Assess Law Practice Skills

On June 3, 2024, the NCBE announced that it will not provide legal reference material on the NextGen exam; but that it would provide relevant, targeted resources for some question types, and questions on certain topics within the foundational concepts and principles.

Nestled in the release of the pilot testing results, is the NCBE’s decision to exclude additional legal resources from the NextGen exam.

According to the NCBE, the aim of NextGen exam is to make the bar exam more realistic and to reduce the amount of legal knowledge that candidates must commit to memory for the exam, while emphasizing law practice skills. Lawyers in practice do not rely on memorization, but on skilled access to legal and information resources. Yet, despite the reality of law practice and its own claimed intention, the NCBE appears to have done an about-face on providing the Federal Rules of Evidence as reference material on the exam.[5] This significant departure does not support the assessment of practice-ready lawyers.

We are reasonably reluctant to rely on the NCBE’s promises of forthcoming materials and the provision of resources during testing because of the many previous changes and the recalcitrant decision to exclude promised reference material that a majority of pilot test takers relied upon. More in-depth research should be conducted by independent psychometricians unaffiliated with NCBE to assess how access to reference materials might impact performance indicators that are not captured in exam scoring like test anxiety and imposter syndrome.

The NCBE Has Offered No Guidance for the Testing of Legal Research

The NCBE’s website says that it is still “exploring options for testing legal research” and that sample questions testing legal research will be available at a later date that remains uncertain.

The overwhelming majority of current law students who will be taking a bar exam in 2026 and 2027 have or will have completed the required courses in Legal Research and Writing prior to sample questions being released. The unfairness of the promised late release will be compounded on individuals who lack the time and money resources to engage in costly bar preparation programs. Those individuals are more likely to benefit from law school academic support programs, and yet the academic support faculty have not been able to offer any meaningful guidance that will make their bar exam success more likely. We urge the NCBE to delay testing of legal research until 2028 or some future date when law students can have fair notice and access to the scope and content of exam questions in this areas to be tested.

Academic support faculty cannot appropriately aid in the bar readiness of our students and future graduates with vague, incomplete, and constantly changing information from the test maker. We implore the NCBE for its cooperation and recognition of the potential to exacerbate alarming disparities in test outcomes for law school graduates who have the greatest need for academic support programs.

AASE Submits Comment to Proposed ABA Standard 405

Dear Chair McCormack:

On behalf of the Association of Academic Support Educators (“AASE”), we write in support of the proposed amendments to ABA Standard 405 with the inclusion of our suggested revisions that explicitly include “bar success” professors in the faculty categories listed in the proposed amendment.

Founded in 2013, AASE is a non-profit organization made up of academic and bar support professionals from every ABA law school in the United States and Canada. One of our missions is to raise awareness of issues affecting law school academic and bar support professionals to other constituencies and law school-related organizations, specifically as it relates to employment inequity. Faculty status, or lack thereof, remains a consistent issue impacting our membership, many of whom teach students at all levels of their institution’s curriculum, and bear the same duties and responsibilities as so-called “podium faculty” without the commensurate pay or ability to vote on law school issues.

Though we are educators who teach law students and graduates using skills rooted in legal doctrine, we are often hired as administrators, staff, or non-tenured faculty members instead of full-time tenured faculty. This places many of our constituents in the unenviable position of being responsible for the core missions and outcomes of the law school, such as ABA-mandated bar passage standards, without the power to make beneficial changes or suggestions to curricular and hiring matters. This second-tier status perpetuates already existing inequalities and deprives many AASE members of faculty status and security of employment. These administrative/staff designations are given despite the fact that academic and bar success professors fall squarely within the definition of faculty set forth in Standard 401 in Chapter 4 of the 2023-2024 Standards and Rules of Procedure for Approval of Law School (the “Standards”):

A law school shall have a faculty whose qualifications and experience enable the law school to operate in compliance with the Standards and carry out its program of legal education. The faculty shall possess a high degree of competence, as demonstrated by academic qualification, experience in teaching or practice, teaching effectiveness, and scholarship.

Our membership also regularly performs the “Responsibilities of Full-Time Faculty” outlined in Standard 404, whether done with or without formal recognition. These responsibilities include:

• (1) Teaching, preparing for classes, being available for student consultation about those classes, assessing student performance in those classes, and remaining current in the subjects being taught;
• (2) Participating in academic advising, creating an atmosphere in which students and faculty may voice opinions and exchange ideas, and assessing student learning at the law school;
• (3) Engaging in scholarship, as defined by the law school;
• (4) Service to the law school and university community, including participation in the governance of the law school, curriculum development, and other institutional responsibilities described in the Standards;
• (5) Service to the profession, including working with judges and practicing lawyers to improve the profession; and
• (6) Service to the public, including participation in pro bono activities.

Educators employed full-time by law schools, who meet the criteria set forth in Chapter 4 of the Standards, should be hired and classified (or, for those currently employed full-time, reclassified) as full-time faculty and treated the same as other full-time faculty with the same rights and responsibilities. Security of employment at an ABA accredited institution should not depend on the subjects a professor teaches or the jobs they are hired to perform at the school.

The proposed amendment to Standard 405, with the revisions suggested below, will provide meaningful job security for legal writing and academic and bar success professors. This will allow us to devote our full energy to the critically important work of teaching students to be critical thinkers and excellent communicators, as well as to reach their full potential—including graduating, passing the bar exam, and practicing law. It will also ensure that legal writing and academic and bar success professors enjoy the same rights of participation and governance, and academic freedom protections as other full-time faculty. It will go a long way toward breaking down the systemic inequities the current system only serves to perpetuate.

¹See https://arc.accesslex.org/bs-collections/ and the AASE Scholarship page for repositories that house a plethora of scholarship published by academic support and bar preparation educators.

The legal writing and academic and bar success communities are full of brilliant, creative, dedicated teachers and scholars who contribute just as much to their students, institutions and the legal academy as their colleagues who teach other subjects.

We suggest and request the following adjustments to the proposed language of Standard 405 and its associated interpretations.

AASE-proposed Redline: Standard 405: Professional Environment …

( c ) A law school shall afford to all full-time clinical faculty members the opportunity for tenure or a form of security of position reasonably similar to tenure and reasonably similar non-compensatory perquisites. A law school may require faculty members to meet reasonably similar standards and obligations. However, this Standard does not preclude a limited number of fixed, short-term appointments in a clinical, legal writing, or academic or bar success program predominantly staffed by full-time faculty members or in an experimental program of limited duration, and it also does not preclude the use of visiting faculty members who may be full-time faculty on short-term contracts.

( d ) A law school shall afford to all full-time faculty members reasonably similar participation in faculty meetings, voting, committees, and other aspects of law school governance. This subsection does not apply to those persons referred to in the last sentence of subsection (c). …

Interpretation 405-6

A form of security of position reasonably similar to tenure includes a separate tenure track or a program of presumptively renewable long-term contracts. Under a separate tenure track, a full-time clinical, legal writing, or academic or bar success faculty member, after a probationary period reasonably similar to that for other full-time faculty, may be granted tenure. After tenure is granted, the faculty member may be terminated only for good cause, including termination or material modification of the entire clinical, legal writing, or academic or bar success program. A program of presumptively renewable long-term contracts shall provide that, after a probationary period reasonably similar to that for other full-time faculty, during which the faculty member may be employed on short-term contracts, the services of the faculty member may be either terminated or continued by the granting of a presumptively renewable long-term contract. For the purposes of this Interpretation, “presumptively renewable long-term contract” means at least a five-year contract whereby reappointment at the end of such a contract would be presumed and no justification for reappointment by the clinical, legal writing, or academic or bar success faculty member would be required, absent a good faith and substantial objection to reappointment made to or by the Dean. During the initial long-term contract or any renewal period, the contract may be terminated for good cause, including termination or material modification of the entire clinical, legal writing, or academic or bar success program.

Interpretation 405-7

In determining if the members of the full-time clinical, legal writing, and academic or bar success faculty meet standards and obligations reasonably similar to those provided for other full-time faculty, competence in the areas of teaching and scholarly research and writing should be judged in terms of the responsibilities of clinical, legal writing, and academic or bar success faculty. A law school should develop criteria for retention, promotion, and security of employment of for full-time clinical, legal writing, and academic or bar success faculty.

We applaud the Council for its decision to propose these changes and urge their full adoption with the inclusion of the revisions suggested herein.

AASE Raises Serious Concerns About NextGen Prototype Questions

Statement from the Association of Academic Support Educators Concerning the NextGen Bar Exam

The Association of Academic Support Educators (AASE) has serious concerns about the prototype questions released by the National Conference of Bar Examiners (NCBE) for the NextGen bar exam scheduled to be administered in July 2026.

The NCBE’s Testing Task Force, in their final report released in April 2021, recommended less emphasis on memorized material and greater focus on lawyering skills to more reflect the practice of law. NextGen purportedly tests applicants on skills they actually need to be successful attorneys. Unfortunately, the recently released exam structure and fourteen (14) questions do not fulfill that promise.

Significant memorization will be required on the NextGen bar exam. The NCBE outline displays some topics in each subject with a star and some without a star. The legend explaining the meaning of the star versus no star topics clearly shows that everything will need to be memorized. “Topics without a star symbol – Topics without a star symbol may be tested with or without provision of legal resources. When these topics are tested without legal resources, the examinee is expected to rely on recalled knowledge and understanding that will enable the examinee to demonstrate recognition that the topic is at issue in the fact scenario.” Since the language indicates non-starred areas may require memorized knowledge, applicants must memorize everything.

The July 11, 2023, and August 18, 2023, releases create additional uncertainty regarding the exam. In the July release, the multiple-choice section of NextGen Bar was described as “Initially, many of these questions will closely resemble Multistate Bar Examination (MBE) questions; this will ensure stability between scores for the current and NextGen bar exams. In future administrations, the variety of multiple-choice question types will increase.”

The statement raises a significant concern. Graduates will be preparing for an exam that is quite literally a moving target. The NCBE provided no information about how the “variety of multiple-choice question types will increase.” They only provided 14 questions to represent countless rules and skills. Graduates and law schools do not know what that variety looks like, how significant is the increase in variety, and how it will impact studying. In the August press release, the exam structure once again changed from previous announcements clearly illustrating the moving target. For a high-stakes licensure exam, a moving target with so few examples released in advance is inappropriate. Graduates have the right to know the exact make-up and nature of the exam they will take and have access to ample practice questions produced by the licensing authority.

AASE appreciates the NCBE attempting to modernize the bar exam to reflect the actual practice of law and decrease the disparate impact on certain populations. While their goal is virtuous, the current prototypes fall short of satisfying the Testing Task Force’s recommendations. AASE respectfully encourages all licensing agencies to fully analyze this assessment and consider whether alternative methods of licensure are more appropriate.