California signs deal with Kaplan for bar exam with plan for potential copyright issues
Despite concerns about copyright issues, the State Bar of California and Kaplan Exam Services signed an agreement allowing the company best known for test prep to create multiple-choice, essays and performance test questions for a California Bar Exam for use starting in February 2025. (Image from Shutterstock)
Despite concerns about copyright issues, the State Bar of California and Kaplan Exam Services signed an agreement allowing the company best known for test prep to create multiple-choice, essays and performance test questions for a California Bar Exam for use starting in February 2025.
The $8.25 million, five-year agreement includes a “cost-sharing provision,” according to a press release, in which Kaplan and the state bar would share any potential infringement litigation costs.
Over the life of the new contract, the cash-strapped state bar’s cost is capped at $6.75 million. A mutual indemnification provision with a $1.65 million cap is included. These caps ensure that the new arrangement would still be cheaper, or cost neutral, compared to the administration costs for using the current bar exam that were leading the state bar to a projected insolvency in 2026, according to the release.
Unlike the widely used Uniform Bar Exam and its components, administered and developed by the National Conference of Bar Examiners, the new test can be administered remotely and at test centers, saving the California bar up to $3.8 million in exam-related expenses, according to the release.
The contract follows a halt in negotiations between Kaplan and the state bar in May. The NCBE had written Kaplan, reminding the test prep company that creating questions based on NCBE-produced tests could violate their licensing agreement.
“I think what this agreement on liability implies is that those concerns have not entirely abated,” Sean Silverman, owner of Silverman Bar Exam & LSAT Tutoring, wrote to the ABA Journal.
In July, however, the state bar board of trustees gave its blessing to move forward with the negotiations and agreement.
The new test “allows us to provide applicants with exam options that they prefer and also helps us close a significant deficit in the state bar admissions fund,” said Brandon Stallings, the chair of the state bar examiner board, in the statement.
NCBE officials have not seen the agreement and have not been involved in either the negotiations between California and Kaplan or their test development plans, Judith Gundersen, the NCBE’s president, wrote to the ABA Journal.
“I hope that NCBE refrains from any challenges,” Deborah Jones Merritt, professor emerita at the Ohio State University Moritz College of Law, told the ABA Journal in an email. “In fulfilling its public mission, NCBE should not block competitors who may be able to further that mission in ways that work better for courts and/or applicants.”
While the NCBE will not be involved in the development of this multiple-choice new exam, “we will continue to support the state bar, the committee of bar examiners and the Supreme Court of California in their broader admissions activities,” Gundersen told the Journal.
The timeline for launching the new test concerns some.
“Kaplan is on the express lane trying to create this exam for February. And with the NCBE watching, Kaplan will need to be especially creative in writing original questions,” Silverman wrote. “Desperation doesn’t generally lead to quality output, and the catalyst for this move was desperation.”
As part of the agreement, Kaplan will exit the retail bar prep business in California, according to the release. Training for the new tests will not be much different from what’s needed for the MBE, and Kaplan will create student and faculty study guides for the exam at no cost, the release states.
“NCBE charges for its study materials—another way in which it raises the costs of entering the profession,” OSU’s Merritt writes.
Since the NCBE-developed UBE will be sunsetting in 2028, state bars must replace it. To date, 23 jurisdictions have committed to the NCBE’s new NextGen bar exam, which will be administered beginning in 2026.
