By Theo Emery, Associated Press, 5/7/2003

BOSTON -- A scoring error on the bar exam used in all but two states has changed results for thousands of aspiring lawyers and could affect whether some pass or fail the bar, according to the National Conference of Bar Examiners.

American College Testing, which develops and scores the multiple choice tests, told the conference Friday that an office administrator made a mistake that affected results for more than a third of the 20,204 would-be lawyers who took the test in February.

While the mistake will have only a tiny impact on the number of candidates who actually pass or fail, the mistake is causing a headache for bar examiners around the country, who have already sent thousands of letters with test results, said Erica Moeser, president of the national conference, which assists state bar examiners in testing would-be lawyers.

"Our own integrity requires that we fix what is not right," she said. "For people who believed they passed and did not, it will cause some pain, and we regret that."

Elaine Vietri, executive director of the Massachusetts Board of Bar Overseers, said it will take some time to determine how the error will effect results in the state. In February, 817 people took the exam in Massachusetts; last week, the board sent letters telling 388 candidates they passed, and breaking the bad news to the rest, she said.

The state must now recalculate results, and send another letter to each of them before the state's scheduled swearing-in ceremony at Fanueil Hall in June, Vietri said.

"They just got result letters, and it's regrettable that they have to disregard those and go through it again," Vietri said.

The 200-question Multistate Bar Examination is typically taken in conjunction with an essay section of the state bar exam. Most states and Washington, D.C. use the test -- only Louisiana and Washington state do not -- and every jurisdiction comes up with its own pass-fail formula.

The error resulted from an analysis designed to find statistical anomalies in the test results.

In a process known as "preliminary item analysis," test analysts concluded that there was more than one correct answer for one of the questions. But the ACT employee who was transmitting to graders the second correct answer reported it incorrectly.

Out of all the test takers, almost 7,700 people were either given credit for checking the incorrect answer, or were not given credit when they answered correctly.

At least three major states -- New Jersey, New York and California -- have not yet sent out results to their test takers, which include 3,124 candidates whose scores have been affected by the error, Moeser said.

But as many as 4,500 people have already received scores from their state board of bar overseers, and must be told that their scores have either gone up or down as a result of the error.

The vast majority of candidates passed or failed by a wide enough margin that the one-point difference won't matter. But a "fairly small number" who came within a whisker of passing or failing -- that number is not yet known -- could have their results change if the new score nudges them above or below the pass-fail line, Moeser said.

"We know for a fact that there are people who have been notified that they failed the exam who will receive the wonderful news that they passed the exam, and there will be some people told they passed the exam who will now be told that they failed," she said.

It is the first known instance of such an error, Moeser said.

Ed Colby, spokesman for American College Testing of Iowa City, Iowa, declined to comment, referring questions to the National Conference of Bar Examiners.

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On the Web:

National Conference of Bar Examiners: http://www.ncbex.org/

ACT Inc.: http://www.act.org/