By Emily Johnson

Law360 (October 28, 2020, 6:46 PM EDT ) A federal judge Tuesday tossed a law school graduate's Americans with Disabilities Act lawsuit alleging the State Bar of California discriminated against him by failing to provide adequate accommodations for his disabilities for the October online bar exam during the COVID-19 pandemic.

In her order permanently dismissing the case, U.S. District Judge Phyllis Hamilton said the state bar provided some accommodations and responded to Benjamin Kohn's requests. Kohn sued the state bar in July after he was denied certain accommodations he requested because of conditions including autism, neurological/attention disorders and visual impairments, according to the judge's order.

"The court determined that remote-testing conditions for some test takers do not deny disabled test takers with equal and meaningful access to the bar exam," Judge Hamilton said. "Rather, the state bar's testing conditions and protocols apply to all test takers and do not violate the ADA."

Sitting in the Northern District of California, Judge Hamilton also said Kohn does not have a "fundamental right to take the California bar exam or to practice law," so he cannot assert his constitutional rights were violated. In rejecting his bid for additional accommodations, the judge also noted that Kohn had taken the test since filing his complaint.

Matthew Selvagn, Kohn's lawyer, said in an email Kohn is considering an appeal.

"I wish the judge would have given Mr. Kohn a chance to prove his case at trial rather than dismissing it without fleshing out more of the medical evidence," Selvagn said.

Other test takers have pushed back against the State Bar of California's requirement that people with disabilities take the exam offered in October in person in order to receive certain accommodations.

In a statement, the State Bar said it "appreciates the court's careful opinion concluding that the State Bar did not engage in discrimination regarding the plaintiff's bar exam accommodations."

The law school graduate received some accommodations when he took the bar exam in July 2018, February 2019 and February and October of this year, but he was denied other accommodations.

For example, on Aug. 27, the State Bar's committee granted Kohn's requests for extra overall time on the exam's written portions, according to the judge's order. Rather than increase Kohn's testing time per day, he was given a corresponding increase in the number of days to take the exam, the order said.

However, the committee denied other accommodations Kohn requested, including taking the exam on the weekend, testing in a private room, prescheduled breaks to be taken at Kohn's discretion, an ergonomic workstation, a hotel room for Kohn and an experienced proctor.

In his suit, Kohn argued the state bar's process to request testing accommodations is overly burdensome.

He also accused the state bar of a delay in responding to his requests and deliberate indifference because it didn't grant all of his accommodations. He argued the bar had violated the Americans with Disabilities Act and California's Unruh Civil Rights Act, which states all people are equal, including those with a medical condition.

Kohn also asserted that the rules amid the pandemic violated his constitutional rights to equal protection and procedural due process.

In August and again in September, the court denied Kohn's request for a preliminary injunction to force the state bar to provide him with all the accommodations he requested.

Kohn is represented by Matthew Selvagn.

The State Bar of California is represented by Vanessa L. Holton, Robert G. Retana, James J. Chang, Kenneth Holloway for the Office of General Counsel for the State Bar of California.

The case is Kohn v. State Bar of California et al., case number No. 20-cv-04827-PJH, in the U.S. District Court for the Northern District of California.

--Additional reporting by Bill Wichert. Editing by Marygrace Murphy.

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