Gordon v. State Bar of California

Background

Three plaintiffs with disabilities sued the State Bar of California and the National Conference of Bar Examiners (NCBE) over the October 2020 California bar examination. They sought a preliminary injunction, which is a court order issued before final judgment to prevent likely harm while a case continues. The plaintiffs asked to take the exam remotely with accommodations instead of taking it in person.

The plaintiffs said their disabilities prevented them from complying with one or more remote-testing conditions: staying visible to a webcam during each testing session, not using physical scratch paper, and taking an entirely electronic exam without a paper test. The opinion also describes the challenged conditions as including no bathroom breaks during a testing session. The State Bar had granted the plaintiffs other accommodations, including additional time, private testing rooms, printed materials, and mid-session bathroom breaks, but only through in-person testing.

The complaint asserted a claim under Title II of the Americans with Disabilities Act (ADA) against the State Bar, a claim under Title III of the ADA against the NCBE, and a claim under California’s Unruh Civil Rights Act against the NCBE. The plaintiffs proposed remote procedures involving bathroom breaks, paper exams, remote proctors, couriers, and safeguards for physical scratch paper.

Parties’ positions

The plaintiffs argued that the remote-testing conditions facially discriminated against disabled test takers, disproportionately burdened them, and denied them equal and meaningful access to the exam. They contended that their proposed accommodations could be implemented without undue burden. They also cited COVID-19 infection concerns, stress that could affect performance, employment-related hardships, and, for one plaintiff, a possible need to postpone surgery.

The State Bar argued that its remote-testing conditions were neutral security measures that applied to all test takers. It relied on an infectious-disease expert and epidemiologist and described in-person safeguards including private hotel rooms, mandatory face coverings, disinfectant, limits on crowding, ventilation measures, and temperature checks. The State Bar also argued that implementing new remote procedures shortly before the exam would be infeasible and would impose an undue burden.

The NCBE argued that the plaintiffs lacked Article III standing—a constitutional requirement that a plaintiff show an injury caused by the defendant that a court decision is likely to remedy—because the State Bar made the remote-testing decisions. The NCBE also argued that it had authorized remote paper testing and that the plaintiffs were unlikely to succeed on their ADA claim against it.

Court’s analysis

The court denied the motion because the plaintiffs had not shown a likelihood of success on the merits or irreparable harm. For the Title II ADA claim against the State Bar, the court reasoned that the remote-testing conditions were facially neutral and applied to all test takers, not only disabled people. The court also found that the plaintiffs had not shown that the conditions disproportionately burdened them or denied them meaningful access to the exam. It noted that 462 of 657 test takers who received disability-related accommodations were approved to test remotely, while other test takers also took the exam in person.

The court further found that the State Bar’s proposed in-person procedures reduced COVID-19 risks and that the plaintiffs had not meaningfully challenged the State Bar’s evidence that the exam could be administered safely. Separately, the court concluded that the plaintiffs’ proposed remote accommodations would require new and untested procedures for roughly 100 test takers, including some with extended-time accommodations. On the record, the court found that those changes would fundamentally alter, disrupt, and burden the State Bar’s administration of the October 2020 exam and therefore were not required at that time under the ADA.

Regarding the claims against the NCBE, the court said the plaintiffs lacked standing based on the NCBE’s representations that it would allow remote proctoring and remote paper testing and that the State Bar made the ultimate remote-testing decision. The court nevertheless addressed the ADA claim and found that the plaintiffs were not likely to succeed. The plaintiffs did not challenge the NCBE’s position that it was not a Title III public accommodation or that it was subject to the separate exam-accessibility requirement in 42 U.S.C. § 12189. The court also concluded that the Unruh Act claim was unlikely to succeed because the plaintiffs treated an ADA violation as its required underlying violation, and the court found no likely ADA violation on this record.

The court also found that the plaintiffs had not established irreparable harm. It characterized their COVID-19, performance, and lost-opportunity concerns as speculative in light of the State Bar’s safety measures, provisional-licensing program, and 50-point reduction in the passing score. Because the plaintiffs failed to show likely success and irreparable harm, the court did not address the remaining preliminary-injunction factors—the balance of equities and the public interest.

Disposition

Judge Beeler denied the plaintiffs’ motion for a preliminary injunction. The opinion did not enter a final judgment on the underlying claims.