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The California State Bar must eliminate the use of Facial Recognition Technology in the administration of their February 2021 bar examination, because it is disproportionately inaccurate in identifying women and people of color, a letter sent today to the several members of the state bar and Examsoft Inc. states. The letter also notes that there are several alternatives to facial recognition technology that can be used to administer the bar exam, which are also able to be implemented before its administration. 

The use of facial recognition technology, long controversial, will have an unlawful disparate impact on examinees of color and women examinees. There is a robust record of scholarship, from both private and government researchers, showing that the technology is flawed.  

“Examinees should not have to be subjected to or pay for, the worry that comes with discriminatory technology blocking their career path and future endeavors based on the color of their skin or their gender, especially when proven alternatives are readily available,” said Noah Baron, counsel and Shestack Justice Fellow at the Lawyers’ Committee for Civil Rights Under Law. “The State Bar must provide equal opportunity for everyone seeking to enter the legal profession. This is just another example of how systemic racism and structural inequality can affect even the most niche corners of our society.” 

The letter also includes alternative administration methods to facial recognition technology that can be used for the February examination. These include changing to an open book format, implementing diploma privilege, or instituting ‘emergency temporary practice.’ There is no data to suggest that administering exams in this way results in higher rates of attorney misconduct. 

The national Lawyers’ Committee has asked the state bar and Examsoft Inc. to respond by Feb. 16, 2021, or legal action will be taken. 

Read the letter here. 

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Contact: Ian Weiner, [email protected], c. (202) 662-8387 

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