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Law360 (September 15, 2020, 10:43 PM EDT ) Three prospective bar exam-takers with disabilities sued the State Bar of California this week, alleging the agency is discriminating against them by refusing to allow accommodations like screen-readers and bathroom breaks for remote test-takers, pushing them to risk traveling during the coronavirus pandemic to take the October exam in person.
In the lawsuit filed Monday, plaintiffs Kara Gordon, Isabel Callejo-Brighton and a John Doe seek an injunction forcing the state bar to allow them to take the October exam remotely and permit reasonable accommodations. They allege the State Bar of California and the National Conference of Bar Examiners have violated the Americans with Disabilities Act, and that the NCBE also ran afoul of a state anti-discrimination law.
"These are applicants to join the bar who worked really hard and spent a lot of money and are anxious to start their careers, and it's absolutely frustrating that the state bar designed a two-tiered system like this," said Claudia Center, legal director for the Disability Rights Education and Defense Fund. One client is "stuck between going in person and encountering COVID or her only option for taking it remotely would be if she sat on her toilet for the test. I mean, is that what our bar is saying to disabled people?"
The State Bar of California told Law360 on Tuesday that the agency is not unlawfully discriminating in its administration of the October bar examination, citing its obligation to keep the exam secure and protect its integrity.
The lawsuit comes as lawyer-licensing agencies in several states have struggled to balance testing with safety. In the complaint, the plaintiffs argue that they and others with disabilities may face greater risk of serious illness or death from COVID-19.
If forced to take the examination in person, they said they would also suffer a disadvantage from the anxiety of potential viral exposure while taking the exam. Taking the exams at home would alleviate that risk, but the state bar's demands of remote test-takers would not permit some of their accommodations, the plaintiffs contend.
According to their complaint, one plaintiff suffers from irritable bowel syndrome and would have an absolute need to take bathroom breaks. Another says she could not sit uninterrupted in front of a computer for the entirety of each test section because of a cerebrospinal fluid leak. And another argues that he requires a paper copy of the exam due to his attention deficit hyperactivity disorder.
"Allowing plaintiffs to test remotely with their testing modifications would not impose a fundamental alteration, but would even the playing field and allow plaintiffs' aptitudes and cognitive abilities to be fairly and accurately measured in an equally safe environment to their nondisabled peers," the plaintiffs argue.
They tried to negotiate with the State Bar but were unable to reach a resolution, Center said.
Several states' handling of pandemic-era bar exams has provoked reactions in recent months.
Hawaii's state Supreme Court received criticism after opting to hold an in-person exam with 120 test-takers this month in a Honolulu convention center, even as the state experiences a surge in coronavirus cases. Florida and Pennsylvania have struggled with the fallout from postponed bar exams.
On Monday, the same day the lawsuit was filed, a group of 15 California law school deans urged the California Supreme Court to make the October bar exam an open-book test. The deans cited COVID-19, along with the wildfires scorching the state and ongoing national reckoning with racism.
On Tuesday, Donna Hershkowitz, the State Bar of California's interim executive director, said in an emailed statement that it is not required to implement any accommodations that would "fundamentally alter the nature of the exam."
"The COVID-19 protocols that will be in place for in-person administration of the bar exam for both disabled and nondisabled test-takers follow national and state public health guidelines to minimize the risk of infection spread during this unprecedented pandemic," she said.
The plaintiffs are represented by Claudia Center, Sydney Pickern and Malhar Shah of the Disability Rights Education and Defense Fund and Jinny Kim and Rachael Langston of Legal Aid at Work.
Counsel information for the State Bar of California was not immediately available.
The case is Kara Gordon et al v. State Bar of California et al., case number 3:20-cv-06442, in the U.S. District Court for the Northern District of California.
--Additional reporting by Hailey Konnath, Emma Cueto, Carolina Bolado and Matthew Santoni. Editing by Emily Kokoll.
For a reprint of this article, please contact reprints@law360.com.
