March 11, 2020

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The National Disabled Law Students Association Submits Public Comment On Proposed Revised California State Bar Rule 4.90 Regarding Testing Accommodations

[New York, New York] The National Disabled Law Students Association (NDLSA) adamantly opposes the proposed revisions to California State Bar Rule 4.90 and would like to draw attention to the backstory. The proposed revisions are a response to 2020 litigation initiated by several of our colleagues in California whose disability accommodations had been preconditioned on testing in person. The State Bar chose to impose this condition, which exposed disabled candidates to COVID-19, even though it had other options. The National Conference of Bar Examiners (NCBE) offered to collaborate on remote testing arrangements for accommodated test-takers. Instead of taking NCBE up on that offer, the California State Bar vigorously litigated against disabled bar candidates seeking to join its ranks and now seeks to make securing safe and equitable testing conditions even more difficult. In short, the California State Bar has responded to discrimination claims by doubling down. The proposed rule changes appear facially neutral, but they are designed to disadvantage and endanger disabled bar candidates.  


The proposed revisions to Rule 4.90(A) prohibit bar candidates from challenging disability accommodations that are “fully” granted. These revisions are designed to block challenges by candidates granted accommodations, such as testing on paper, only on the condition that they test in person during a viral pandemic. Pandemic aside, the revisions allow the State Bar to evade appeals entirely by characterizing partial grants as full grants with “modifications.” No one appeals a granted accommodation unless the grant includes unacceptable conditions, such as potential exposure to a deadly virus or traveling several hundred miles to a testing site. The proposed revisions are not a good-faith effort to promote efficiency but a license to impose onerous or dangerous conditions on candidates with accommodations. 


The proposed revisions to Rule 4.90(B) narrow the window for accommodation appeals. The revisions purportedly “allow sufficient time for processing and consideration by the director of Admissions and the committee” but any time they tack on for review is taken away from candidates who must secure additional paperwork and, often, schedule medical appointments to complete their appeal. Neither the current rules nor the proposed revisions provide any guarantee that candidates requesting accommodations will receive a decision in a sufficiently timely fashion that they can prepare an appeal.  


The new Rule 4.90(E) would limit candidates to a single request for review. Such a rule is inconsistent with the interactive process required under the Americans with Disabilities Act. Additionally, the proposed revisions will particularly disadvantage first-generation and low-income candidates, who often have less disability documentation and less experience navigating accommodation processes. 


State boards of law examiners across the country have chosen to treat disabled lives as expendable, implementing policies that require accommodated candidates to test in person instead of working toward solutions that allow disabled candidates to test remotely, i.e., safely, in light of the testing software’s accessibility shortcomings.1 These policies have been proven unnecessary, as NDLSA is aware of bar candidates in Washington, D.C., Massachusetts, New York, Illinois, and Washington State who have received accommodations (with express NCBE approval) to test remotely on paper and/or using alternative software.  These arrangements demonstrate that it is feasible to accommodate disabled bar candidates without endangering their lives. The California State Bar’s refusal to adopt such accommodation policies indicates that the organization simply lacks the will to prioritize disabled lives. 


NDLSA calls on the California State Bar to treat disabled individuals as valued colleagues and future members of the profession by protecting their lives and health to the same degree that it protects the lives and health of its non-disabled candidates. The proposed rule changes will shoehorn disabled candidates into a Hobson’s choice between testing under unacceptable conditions and foregoing the license and career they have worked so hard to attain. The proposed changes are not intended to promote efficiency but to force disabled bar candidates to test in person while their non-disabled peers test from the safety of their homes. That is grossly inequitable, dangerous, and no way to treat one’s future colleagues.  

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