April 20, 2019
Dear Justices,
As part of our ongoing effort to make data-driven decisions that better prepare our students to succeed on the bar exam and beyond, we submitted R-19-0010 Petition to Amend Rule 37(c), Rules of the Supreme Court, seeking detailed information regarding how our students perform on the Arizona bar exam as a whole and on its component parts. Detailed student-specific information will allow the law schools to identify the students most at risk and design and test interventions that will help increase student success.
In April, our colleagues were pleased to discuss the proposal with the Attorney Regulation Advisory Committee (ARAC); they also learned of the position to be taken by the Committee on Examinations. We share concerns about data privacy and security and take quite seriously our current responsibilities to safeguard the vast amounts of student data we already have.
The ARAC voted to support the Petition, with certain provisos, including a requirement that the law schools affirmatively request the data and that the applicants for the bar exam be required to decide whether to share their data with their law schools affirmatively one way or the other (i.e., “forced choice” rather than “opt-out”). One option was to include the “forced choice” on the bar application itself. Mark Wilson reported to the Committee that the Administrative Office of the Court has just revised its interface for registering for the bar exam, using an outside vendor at some expense. He indicated that changing the web interface might present administrative difficulties and could not estimate the time or cost such changes might require.
To avoid these potential costs and the delay that might arise, the law schools would be happy to collect consent forms (either electronically or hand-signed) from test takers as part of their graduation checkout procedures. We would then provide an electronic list the Administrative Office of the Courts, highlighting those agreeing and refusing to provide their data to the law schools. We would also be happy to provide copies of the waivers or make them available for inspection at the court’s request. We believe that this solution balances student privacy and autonomy interests with the law schools’ bona fide needs for data, while minimizing the administrative burden on the Court.
In Exhibit A, we offer the proposed text of that consent document. We would suggest that the Rule apply similarly to other law schools, if they seek such data.
We would be happy if the Court were to substitute this approach with that suggested in our original Petition.
Respectfully submitted,
Marc Miller
520-621-1498
[email protected] and
Douglas Sylvester
480-965-6188
[email protected] EXHIBIT A: (PROPOSED TEXT OF STUDENT CONSENT FORM)
CONSENT TO CONFIDENTIALLY DISCLOSE
MY BAR EXAM DATA TO MY LAW SCHOOL
In recognition of my law school’s effort to maximize student success on the bar exam, I consent to the testing authority releasing to my law school my bar exam results, including scores on each subpart of the exam and future exams in any jurisdiction, subject to the following terms. The identified data may be used exclusively for scholarly research and the monitoring and improvement of the school’s educational and student support programs. My identified data may not be sold or otherwise transferred to any party for any other purpose. This consent does not restrict the use of de-identified data. The law school, its employers, and its contractors shall maintain the confidentiality of the data to the same extent as for other data subject to the Family Educational Rights and Privacy Act (FERPA).
TYPE NAME (e-signature): ___________________________________
DATE: ________________________
FOR REFERENCE PURPOSES ONLY:
The first jurisdiction in which I intend to take the bar exam is: _________________________
The administration will take place in the following month and year: ________________________