Kohn v. State Bar of California

Background

Benjamin Kohn, a law school graduate, alleged that he had several physical and psychological conditions, including autism, neurological and attention disorders, digestive conditions, and visual impairments. He had taken the California Bar Examination in July 2018, February 2019, and February 2020. For those exams, the defendants granted some accommodations but denied others, including additional written-exam time, limits on daily testing time, ergonomic equipment, specialized proctors, and additional break time.

Kohn sought accommodations for the October 2020 exam. The Committee granted increased time on the written portions and a limit on daily testing time comparable to that of nondisabled test takers, with additional exam days. It denied requests for weekend-only testing, a private room, discretionary prescheduled breaks, a complete ergonomic workstation, a hotel room, and an experienced proctor. Kohn’s First Amended Complaint asserted 15 claims, including claims under Title II of the Americans with Disabilities Act (ADA), California Government Code sections 11135 and 12944, and California’s Unruh Act. The complaint also referenced the Rehabilitation Act.

Court’s analysis

The defendants moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Rule 12(b)(1) concerns the court’s subject-matter jurisdiction, while Rule 12(b)(6) tests whether a complaint alleges a legally sufficient claim.

For the prospective injunctive and declaratory relief connected to the October 2020 exam, the court ruled that the claims were moot because Kohn had completed the exam. The court therefore granted the motion as to that portion of the fourth claim and dismissed it with prejudice.

For the first through seventh and fifteenth ADA claims, the court focused on state sovereign immunity under the Eleventh Amendment. Although Congress expressly sought to remove state immunity for ADA claims, the court explained that the removal is valid for damages claims only when the alleged conduct also violates the Fourteenth Amendment, or when the Constitution otherwise permits Congress to remove that immunity for the particular class of conduct.

The court concluded that Kohn had not alleged a constitutional violation sufficient to overcome that immunity. It stated that there is no fundamental right to take the California Bar Examination or to practice law, and found that Kohn had not shown that the State Bar’s procedures and accommodations failed rational-basis review. The court also rejected his procedural due-process theory because he had not identified a protected liberty or property interest and, in any event, had been allowed to submit accommodation requests and appeal unfavorable decisions. The court likewise found that the October 2020 remote-testing policy did not state an Equal Protection claim because the policy did not facially discriminate against disabled applicants or disproportionately burden them in the manner alleged. The court held that the defendants were immune from suit for damages under Title II of the ADA and dismissed the first through seventh and fifteenth claims with prejudice.

For the fifth through seventh claims under California Government Code sections 11135 and 12944, the court relied on California Business and Professions Code section 6001. That provision exempts the State Bar from state laws regulating state agencies, including the relevant division of the Government Code, unless the Legislature expressly says otherwise. The court found that these provisions did not apply to the defendants and dismissed those claims with prejudice.

For the eighth through fourteenth claims under the Unruh Act, the court observed that the claims were based on the same alleged conduct as the ADA claims. Because Kohn failed to state an ADA claim, he also could not state an Unruh Act claim based on an ADA violation. The court additionally ruled that the Unruh Act applies to business establishments and that government entities are not business establishments. It granted dismissal of those claims with prejudice.

Although the First Amended Complaint referenced the Rehabilitation Act, it did not plead a particular Rehabilitation Act cause of action. The court nonetheless considered the defendants’ argument concerning any such claim. Section 504 of the Rehabilitation Act applies to programs or activities receiving federal financial assistance. The defendants submitted evidence that the State Bar did not receive federal financial assistance, and Kohn did not submit evidence rebutting that showing. The court therefore granted the motion to dismiss any purported Rehabilitation Act claim with prejudice.

Disposition

The court granted the defendants’ motion to dismiss. It dismissed with prejudice the First Amended Complaint, including the specified ADA, California Government Code, and Unruh Act claims, the prospective relief portion of the fourth claim, and any purported Rehabilitation Act claim. The order was signed by Judge Phyllis J. Hamilton on October 27, 2020.