Question on Bar Exam Graded Wrongly

05/07/03

Columbus - A grading mistake on the multistate portion of the Ohio bar examination could prevent 29 people from being sworn in as lawyers on Friday.

The mistake also could affect people in other states that had the problem question on their bar exams.

The Ohio Supreme Court began notifying people yesterday that they may not have passed the February exam, even though the court notified them of a passing grade last week. One of those who received the unwelcome news was Greg Lestini of Toledo, who had planned to take the oath in Cleveland in front of his family. Lestini, taking the test for the second time, had devoted two months to intense study.

"I was very excited when I found out I passed," said Lestini, a graduate of Ohio State University. He was stunned by the news that he now must wait to see if he is qualified to be an attorney based on one multiple-choice question, he said.

"The arbitrariness of it is laughable," Lestini said. "It really shakes your trust in the process and the system."

The court found out Monday that American College Testing Inc., of Iowa City, Iowa, erred in grading one of the test's 200 multiple-choice questions. Some test takers who answered the question wrong got credit.

While others who answered it correctly did not, said Marcia Mengel, clerk of the Ohio Supreme Court. The error affects bar exams taken in 48 states, Washington, D.C., and four U.S. territories, Mengel said.

Testing company officials referred questions to the National Conference of Bar Examiners in Madison, Wis.

Erica Moeser, president of that organization, said a clerical error at ACT was to blame.

"Unfortunately, it's a typo that has serious consequences," she said.

About 20,000 people nationwide took the test, known as the MBE, as part of their state bar exams.

"Most people who passed are completely unaffected by it. Most people who failed are not affected by it at all. The action will be at the pass-fail line," Moeser said.

Moeser said her organization responded promptly when it learned of the error, notifying states that include the MBE as a component of their state bar exams.

She said she did not yet know how many people would be affected nationally. Each state determines its own pass-fail line - there is no single national score, she said.

In Ohio, justices decided to delay the oath for those who scored near the lowest passing grade. Of the 551 people who took the exam, 53 percent, or 294, received a passing grade of 405 points or more. Lestini said he scored 413.

The mistake is the first in 16 years that Mengel has been administrator of the examination. The problem question was graded on a sliding scale of difficulty, Mengel said. Scores are private, and the court would not release the names of those it contacted.

Those delayed from Friday's oath who are later cleared with passing grades will have the option of participating in a smaller ceremony before the Supreme Court in June or getting sworn in by a local judge, Mengel said.

Anyone whose grade is changed from passed to fail can apply to retake the test at no cost, Mengel added.

And now Lestini, who works for Advocates for Basic Legal Equality Inc., a nonprofit law firm that assists the indigent, must figure out what to do next.

"I had made a lot of plans based on my passing," Lestini said. "This is a blow to all of those things."

05/09/03

Columbus - First, they told her she had passed. Then they said, maybe not. Yesterday, they told her she had made the grade.

Today, Cuyahoga County Juvenile Court Judge John Gallagher will swear in Rachel Martin, 26, of Cleveland, as a new attorney.

"The last 48 hours have been the most miserable of my life," said Martin, a graduate of Cleveland-Marshall College of Law who works in the Cuyahoga County public defenders office. "It was worse than waiting from February to May to get my grades."

The Ohio Supreme Court cranked up the mental anguish for Martin and 27 others who were told last week that they had passed the state bar exam. On Tuesday, however, the court told them to prepare to cancel plans for taking their oaths today because a grading mistake might reduce their passing grades to failure.

After the tests were re-examined, the court told all but one of the 28 yesterday that they had passed.

Court officials declined to release the name of the person who ultimately received a failing grade.

Greg Lestini, 25, of Toledo, received his good news by telephone.

"It's been kind of an emotional roller coaster," said Lestini, an Ohio State University graduate whose family intended to witness his swearing-in the day before his brother's wedding. "I think this process needs to be reviewed."

No one who initially failed the exam received a passing grade when the error was corrected, said Marsha Mengel, clerk of the Supreme Court.

Of the 551 people who took the exam, 53 percent, or 293, received a passing grade.

Howard Rossen, a Cleveland attorney who ran a bar review program from 1965 to 1998, said he is surprised that anyone who was close was not given credit. The 53 percent passing rate is already one of the lowest in the history of the exam, he said.

"When the error is by the testing service, the logical thing to do is take it and throw it out," Rossen said.

"They should have given everybody a correct score for that question."

But a decision was made to give credit to the people who answered the question accurately, said Erica Moeser, president of the National Conference of Bar Examiners in Madison, Wis.

American College Testing Inc., of Iowa City, Iowa, erred in grading one of the 200 multiple-choice questions on the multistate portion of the test. The error affected bar exams taken in 48 states, Washington, D.C., and four U.S. territories.

About 20,000 people nationwide took the test, known as the MBE, as part of the overall exam.

"We concluded somewhere in the high 7,000s were the people whose score would shift one point or another" because of the error, Moeser said.

Initially, examiners discovered that the question had two correct answers. Students received credit for either one, but during the grading process someone programmed the wrong answer into the test key. Some students were incorrectly given credit for the wrong answer and some got no credit for answering correctly, Moeser said.

It's the first error of this type since 1972, when the MBE was first administered, according to the national conference.

"I was kind of shocked this could happen," Lestini, the OSU graduate, said.