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Law360, San Francisco (September 30, 2020, 11:03 PM EDT) —
A California federal magistrate judge refused Wednesday to grant a preliminary injunction forcing the state bar to provide certain disability accommodations in test takers’ homes, concluding that test takers must either abide by the state bar’s remote testing restrictions or travel during a pandemic to receive accommodations at an official test site.
U.S. District Magistrate Judge Laurel Beeler said during a remote hearing Wednesday morning that while she was “enormously sympathetic” for the individual plaintiffs who wish to be among the 10,000-plus people in California who will take the October exam remotely this year because of the coronavirus pandemic, she struggled to see how the state bar violated the Americans with Disabilities Act, given that it is already providing accommodations for people with disabilities.
“I just don’t see how what the plaintiffs ask for is feasible at this juncture,” Judge Beeler said during the preliminary injunction hearing.
Citing security and technological limitations of the remotely administered exam, the state bar is requiring people in need of certain accommodations to take the exam in person this year.
But plaintiffs Kara Gordon, Isabel Callejo-Brighton and a John Doe — who seek bathroom breaks during a test session, paper tests, and scratch paper for remote test takers — say the state bar must further accommodate their needs. They say that the state bar and the National Conference of Bar Examiners are violating the Americans with Disabilities Act and that the NCBE is also running afoul of a state anti-discrimination law.
The prospective test takers filed suit on Sept. 14 seeking an injunction forcing the state bar to allow them to take the exam remotely and permit their requested accommodations. They say that they are being singled out and that if tested in person, they would be subjected to potential viral exposure as well as the anxiety that comes with such exposure.
Taking the exams at home would alleviate that risk, but the state bar’s demands of remote test takers won’t permit some of the accommodations they need, the plaintiffs say.
One plaintiff suffers from irritable bowel syndrome and would 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 a third says he requires a paper copy of the exam due to his attention deficit hyperactivity disorder.
During Wednesday’s preliminary injunction hearing, plaintiffs’ attorney Malhar Shah of the Disability Rights Education and Defense Fund argued that in the Ninth Circuit it is well established that “the ADA requires equal safety” and that the state bar’s testing policy would place plaintiffs at increased risk of contracting COVID-19.
Shah told the judge that plaintiffs’ requested accommodations are feasible and not overly burdensome.
But counsel for the state bar argued that it has an obligation to keep the exam secure and protect its integrity.
James J. Chang, assistant general counsel to the State Bar of California, told Judge Beeler that the plaintiffs’ requested modifications are not feasible and that the harm they allege is only speculative, saying the state bar’s epidemiologist had determined that the risk of contracting COVID-19 while taking the in-person exam is very low.
Chang said the state bar has been able to accommodate 70% of prospective test takers with disabilities in the remote exam format but that there are security concerns to consider, saying that if a paper test ends up online it could invalidate the test for more than 10,000 test takers.
“That security issue is an insurmountable burden for us,” Chang told the judge.
Chang also argued that difficulties facing test takers this year have been considered by the California Supreme Court, which has dropped the passing score of the exam this year by 50 points.
In her order rejecting the preliminary injunction bid, Judge Beeler wrote that “the plaintiffs are not likely to succeed on the merits of their claims and have not established irreparable harm.”
Following the order, the state bar’s interim executive director, Donna Hershkowitz, said in a statement that the association was pleased with the judge’s order.
“The court recognized that the state bar’s criteria for remote testing are neutral, do not discriminate, and ensure equal access,” Hershkowitz wrote. “The court also recognized that the plaintiff’s proposed accommodations would be a fundamental alteration that would have imposed an undue burden on the state bar.”
The agency is committed to balancing exam security with equal and safe access, Hershkowitz said, adding that the COVID-19 protocols in place for the in-person administration of the bar exam follow national and state public health guidelines to minimize the risk of infection.
Robert Burgoyne of Perkins Coie LLP, who is representing the National Conference of Bar Examiners, said in an emailed statement Wednesday afternoon that the judge’s decision “recognized the effort that has been required for the State Bar of California to offer a remote administration of the October bar exam in response to the ongoing pandemic, and the significant logistical and exam security challenges that such a remote administration presents.”
“NCBE did not believe that a preliminary injunction was warranted against the State Bar or NCBE, and is gratified that the Court agreed,” Burgoyne said.
Representatives for the plaintiffs did not immediately respond to requests for comment Wednesday.
The plaintiffs are represented by Claudia Center and Malhar Shah of the Disability Rights Education and Defense Fund.
The State Bar of California is represented in-house by Vanessa Holton and James Jou Chang.
The National Conference of Bar Examiners is represented by Robert Burgoyne of Perkins Coie LLP.
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 Brandon Lowrey. Editing by Peter Rozovsky.
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