Kohn v. State Bar of California

Background

Benjamin Kohn brought seven claims under the Americans with Disabilities Act (ADA) and seven corresponding claims under California’s Unruh Act against the State Bar of California and the California Committee of Bar Examiners. He is a law school graduate who registered for the October 2020 California Bar Examination and has several physical and psychological conditions, including autism, attention-related disorders, digestive conditions, and visual impairments.

Kohn had previously taken the California Bar Examination three times without passing. For those examinations, he requested testing accommodations from the defendants. For the October 2020 examination, he again requested accommodations. On August 27, 2020, the Committee issued its final decision. It approved, among other things, two-and-one-half times the usual time for each section, no more than 6.5 hours of testing per day, permission to bring a laptop and backup computer, food and drink in the testing room, remaining in the room during lunch, and bringing his own ergonomic equipment. The Committee denied other requests, including control over when testing occurred, provision of a complete ergonomic workstation, a hotel room, a private room for storing equipment, and assignment of an experienced proctor. The Committee also stated that pandemic protocols would provide a private room where Kohn could leave his equipment.

Motion and legal standard

Kohn renewed his motion for a preliminary injunction, seeking additional accommodations. A preliminary injunction is a temporary court order issued before final judgment. Because Kohn sought an order requiring defendants to take affirmative action, the court treated the request as a mandatory injunction, which requires a stronger showing than an order merely preserving existing conditions.

To obtain preliminary relief, Kohn had to show a likelihood of success on the merits, likely irreparable harm without relief, that the balance of hardships favored him, and that an injunction served the public interest. The court stated that mandatory relief generally should not issue unless the facts and law clearly favored the requesting party.

Court’s analysis

The court first determined that the matter was ripe for review because the Committee had completed its review of Kohn’s accommodation petition. Kohn argued that the requested accommodations were reasonable because they would allow him to demonstrate his abilities. The defendants argued that he had already received substantial accommodations and that factual disputes remained about whether his additional requests were reasonable or would fundamentally change administration of the Bar Examination.

The court agreed with the defendants. It noted that the Committee’s staff routinely handled accommodation petitions and consulted medical experts. In the court’s view, Kohn was asking the court to bypass the State Bar’s petition and appeal process and to reassess the medical evidence on an abbreviated schedule. The court also noted that some requested accommodations apparently had not been submitted to the Committee.

The court compared Kohn’s physicians’ recommendations—including symptom-based breaks, a proctor familiar with autistic individuals, computer access, a private room, ergonomic equipment, food and drink in the examination room, a larger monitor, and no in-person testing because of COVID-19—with the accommodations the Committee had already granted. The court concluded that the existing factual record did not clearly show that the approved accommodations were insufficient under the ADA’s reasonable-accommodation requirement. Kohn therefore had not shown that he was likely to succeed on his Title II ADA claim under the heightened standard for a mandatory injunction.

Disposition

The court denied Kohn’s renewed motion for preliminary injunction. Because Kohn had not established likely success on the merits, the court did not reach the remaining preliminary-injunction factors. The opinion does not state a final disposition of Kohn’s underlying ADA and Unruh Act claims.