SAN FRANCISCO (CN) — Three law school graduates with disabilities must sit for the bar exam in person after a federal judge rejected their bid to take it remotely with requested accommodations.
“On this record, in October 2020, the plaintiffs are not likely to succeed on the merits of their claims and have not established irreparable harm,” U.S. District Judge Laurel Beeler wrote in an 18-page order issued just hours after hearing arguments in the case.
With the exam looming on Oct. 5, Kara Gordon, Isabel Callejo-Brighton, and a John Doe sued the State Bar and National Conference of Bar Examiners for violating state and federal disability laws.
While the State Bar granted their requests for accommodations like unscheduled bathroom breaks, extra time, and a paper iteration of the test, it made them conditional on taking the exam at a testing center because of security concerns.
Gordon has a debilitating spinal condition for which she is scheduled for surgery the week after the test. She will be allowed more time to complete each section, and will be able to lie down, eat and drink, and have a private testing room to take the test. But Gordon and her fellow plaintiffs say their disabilities put them at greater risk for contracting Covid-19 at a testing center and believe stress of anticipating this potentiality will hurt their chances at earning a passing score.
Her attorney, Malhar Shah with the Disability Rights Education & Defense Fund, said disability laws require the State Bar to ensure that disabled applicants can take the exam in a setting that is equally safe as those who take it remotely.
He said the agency is singling out disabled test takers and putting them at greater risk by forcing them to take the test in person. Stress and anxiety will only exacerbate their health conditions.
“The defendants’ policy unlawfully places on plaintiffs and other disabled test takers the overwhelming burden of taking the exam in-person during a pandemic where their scores will be determined not by their competence to practice law, but by their disabilities,” he said.
With traditional bar exam administration upended by the Covid-19 pandemic, the State Bar has focused on preventing every possible form of cheating in order to maintain the integrity of the high-stakes test. Remote test takers, which make up the majority of applicants, will have to sit for hours in front of their computers as webcams capture their every move during each section.
The plaintiffs proposed modifications they believe could be applied remotely, offering to display all written materials in front of their webcams and remain in view of the cameras at all times. Callejo-Brighton said she is willing to scan the interior of her bathroom with the webcam and leave it just outside the door during unscheduled breaks.
Attorney James Chang with the State Bar told Beeler at the Wednesday morning hearing that the agency must have physical custody of the exam at all times, and that it would be overly burdensome for the State Bar to arrange for a sealed paper exam to be delivered at test takers’ homes.
“If the paper exam showed up online the morning of the exam it could potentially invalidate the bar exam for the 10,000 test takers this year. That security issue is an insurmountable burden for us,” Chang said.
He said it is very important that the State Bar enforce its policies equitably across the board. “It will not be appropriate for us to make changes for the three individuals simply became they are represented and have brought litigation. The idea that we could simply limit it to these three plaintiffs and not have the floodgates opening of others who want to arrange the same complicated system is unfortunately not realistic.”
Attorney Claudia Center with the Disability Rights Education and Defense Fund said the State Bar should have anticipated the need for creative solutions earlier in the pandemic when it became clear that in-person testing would be infeasible for the majority of examinees.
Beeler indicated at the hearing that she would deny the plaintiffs’ motion, as one week is not enough time to deliver requested relief.
“I just don’t see how what the plaintiffs ask for is feasible at this juncture,” she said.
“I really think this case is a moment in time,” Beeler said. “To me this case in large measure comes down to burden, and what it costs the State Bar in effort to try to deliver what the plaintiffs want.”
Remote accommodations could be feasible in a few weeks, she said, but “burdens vary based on circumstances.”
Center said the State Bar could have been exploring its options month ago.
“They have expended enormous resources to allow 10,000 people to test remotely and we are dismayed that a small portion of that effort didn’t go to allowing disabled test takers to test on an equal level as nondisabled test takers,” she said.
But Beeler found it much too close to the Oct. 5 exam date to rule based on what the State Bar could have done earlier this year.
“It may be that the State Bar’s future administration of the bar exam will allow the plaintiffs’ suggested accommodations,” she wrote. “But on this record, the State Bar has demonstrated that for the October 2020 bar, the proposed accommodations would fundamentally change, disrupt, and burden the State Bar’s administration of the exam.”
Beeler’s order also said the three law grads’ concerns do not differ enough from other in-person test takers to warrant an injunction.
“Their concerns about Covid-19, poor performance, and lost professional opportunities are no different than the concerns of any in-person test taker. Covid-19 is a public-health crisis, and it causes understandable stress. But on this record, given the State Bar’s Covid-19 protocols, the harm to the plaintiffs is speculative,” she wrote.