Black and brown law school students have taken to shining a bright light on their faces while completing the bar exam because their features are unrecognizable by facial recognition technology (FRT) under normal circumstances, according to a civil rights group.
“Facial recognition technology is used to ensure the person who signed up for the exam is the same person who's sitting for the exam,” said Noah Baron, an attorney with the Lawyers’ Committee for Civil Rights Under Law. “Darker skin people report having difficulties with being recognized, or that they had received errors saying there wasn't enough light to identify them.”
Further complicating the matter, Baron said, is the fact that black and brown law students fear that FRT will label them as cheaters.
“A number of people of color reported experiencing headaches after having to shine a bright light on their faces for the entire two-day exam and that they were terrified of being misidentified as cheating,” Baron told the Southern California Record. “The test takes place over the course of two days, and each session is between an hour and 90 minutes, and because of the use of FRT, you're not allowed to go to the bathroom unless it’s during a state-designated break. That resulted in people wearing adult diapers."
As a result, the Lawyers’ Committee for Civil Rights Under Law sent a letter on Feb. 10 to the State Bar of California, demanding that it switch to an alternative.
"We are concerned because basically, every study that's been done on facial recognition technology has revealed that it's disproportionally inaccurate in identifying people of color, especially Asians and African-Americans," Baron said in an interview.
Baron's letter requested that the bar take immediate steps to remedy the situation by discontinuing the use of FRT in the administration of the February 2021 bar examination.
"They've been on notice that this has been a problem since well before even the October exam," he said. "Numerous groups have written to them, expressing concern about this and they've decided to plunge forward regardless. The purpose of our letter was to hopefully give them pause and let them know that we're taking this seriously and that they should be taking it seriously as well but I am personally at a loss as to why they're proceeding regardless, especially when there are alternatives."
The deadline for the State Bar of California to reply was this week on Feb. 16 but Baron said he had received no response.
“In a climate where racial justice is very salient and where people of color are experiencing both explicit and implicit bias, I find it very disturbing that the state bar is moving forward without regard to the potential racial, disparate impact that this will have,” he said.
Alternatives include an open book format, diploma privilege, and emergency temporary practice.
“An open book format eliminates the need for FRT because it allows you to use notes and books during the exam,” Baron said. “It varies from state to state but emergency temporary practice could mean an apprenticeship under a supervising attorney at a law school clinic whereas diploma privilege is when you graduate from law school, complete the character and fitness aspect of joining the bar and if you're approved, then you're a lawyer.”