On Monday, September 14, 2020, three law school graduates with disabilities filed a lawsuit against the State Bar of California and the National Conference of Board Examiners alleging disability discrimination in violation of the Americans with Disabilities Act and the California Unruh Act. The lawsuit was filed in the U.S. District Court, Northern District of California and concerns the State Bar of California’s remote administration of the bar exam during the COVID-19 pandemic.
The complaint was filed by Kara Gordon, a 2020 graduate of the University of California, Berkeley School of Law, Isabel Callejo-Brighton, a 2020 graduate of the University of San Francisco School of Law, and a John Doe plaintiff, a 2020 graduate of an ABA-accredited law school. All three plaintiffs are persons with a disability as defined by the Americans with Disabilities Act and all are qualified to take the California bar exam. The State Bar of California establishes eligibility criteria for becoming licensed to practice law in California. The National Conference of Bar Examiners develops and controls different tests relating to the licensing of law school graduates seeking admission to the bar.
Due to the COVID-19 pandemic, the California Supreme Court ordered the State Bar of California to reschedule the July 2020 bar exam as a remote administration on October 5th and 6th, 2020. In response, the State Bar of California developed a remote administration of the bar exam for test takers. The complaint alleges that, in planning and designing the remote exam, the State Bar of California “disregarded the needs and rights of a small number of test takers with disabilities.” Specifically, “[i]nstead of implementing common sense solutions to allow these test takers to participate in the remote administration of the bar exam, the [State Bar of California] is requiring these disabled test takers to travel to and participate in an in-person administration of the bar exam.” As such, the complaint alleges that the State Bar of California has created a two-tiered system that requires disabled test takers to “endure risks to their health and test performance that are not being imposed on their nondisabled peers.”
The State Bar of California has detailed which test takers are excluded from remote administration of the bar exam: (1) “test takers with disabilities who cannot stay in front of the web camera for the entirety of each test section;” (2) “test takers with disabilities who need a paper iteration of the bar exam;” (3) test takers with disabilities who need paper scratch paper throughout the exam;” (4) “test takers with disabilities who need different amounts of extra time per test section;” and (5) “test takers with disabilities who use Dragon Speech Recognition or screen reading software such as JAWS.” The plaintiffs requested permission to participate in remote administration of the bar exam with necessary testing accommodations. However, the State Bar of California has required the plaintiffs to sit for the bar exam in person “[u]nless Plaintiffs waive their rights to their necessary and approved testing accommodations.” The National Conference of Bar Examiners has similarly stated “that test takers who require nonstandard test materials, including paper iterations of the [Multistate Bar Examination], cannot test remotely and must test at an in-person administration.”
The complaint provides “common sense solutions” implemented by other bar licensing organizations. For example, the complaint suggests that test takers who require an alternative format of the exam “can be provided files through a secure file transfer for printing, or can be mailed or couriered a sealed exam to be open before the web camera,” with remote proctoring performed using Zoom or a proctoring vendor. This solution has been implemented by the DC Bar and the Law School Admissions Council. Further, test takers who require an unscheduled break to use the restroom “can state their reason for the unscheduled break into the video before leaving,” a solution implemented by the DC Bar for all test takers. The complaint goes on to suggest that those test takers who require an unscheduled restroom break “may scan the bathroom with their web camera before the test administration and before each use.” Finally, the complaint suggests that “[t]est takers with disabilities who need paper scratch paper throughout the exam can scan the front and back of their scratch paper, as is being done by all test takers for the performance test.”
The State Bar of California issued a statement to Bloomberg Law denying unlawful discrimination, stating, in part, that “[t]esting accommodations that fundamentally alter the nature of the exam are not required to be implemented. 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.”
No bathroom break allowed? Suit says rules for remote bar exam discriminate against disabled grads, ABA Journal (September 16, 2020)
Gordon et al v. State Bar of California et al (Case No. 3:2020cv06442)