Applicant Who Flunked Bar Can Sue Examiners, For Now

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By Joan C. Rogers

A former Big Law associate who flunked the bar exam twice cleared a preliminary hurdle Sept. 25 in her suit claiming the New York State Board of Law Examiners wrecked her career prospects by not accommodating her disability ( T.W. v. N.Y. State Bd. of Law Exam’rs , 2017 BL 341259, E.D.N.Y., No. 16-cv-3029 (RJD) (RLM), 9/25/17 ).

Judge Raymond Dearie decided that the plaintiff, “T.W.,” can get limited discovery into whether the board receives federal funds so that it’s not immune from her suit.

Accommodations for taking the bar exam is a big issue for applicants with disabilities and state bars. As an aid for would-be lawyers with disabilities, the ABA Commission on Disability Rights has compiled a directory of information about seeking accommodations for the bar exam in each state.

T.W. claims that the New York board of law examiners discriminated against her on the basis of disability when it denied most of her requested accommodations for taking the New York bar.

Flunked Twice, Got Fired

Recounting T.W.'s allegations, the court said that as a Harvard law student, she received accommodations for depression, anxiety, and panic attacks, as well as deficits in short-term memory and “solving of complex abstract problems” caused by a 2009 injury.

When she applied to take the New York bar, T.W. asked the board to provide the same accommodations that she got at Harvard—50 percent extra time, off-the-clock breaks, and a separate testing room.

After T.W. flunked twice, she lost her job as an associate at Ropes & Gray. The denial of accommodations derailed her nascent legal career, caused her to lose a lucrative job, and continues to undermine her job prospects, according to her complaint.

T.W. ultimately passed the bar on her third try when the board provided her with double time to take the exam, the court said.

Sovereign Immunity?

The court dismissed two of T.W.'s claims but left in place—for the time being, at least—her claims under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.

The board claims that it has sovereign immunity from being sued in federal court on those claims. However, the plaintiff’s claims wouldn’t be barred if the board consented to suit by accepting federal funds, the court said.

The parties dispute whether the board receives federal funds. T.W. says the board receives federal funds through a voucher program for veterans, but the board says no federal funds come to it and that it’s funded solely by attorney registration fees.

A ruling on the sovereign immunity issue will be deferred until after limited discovery on this issue, the court said.

Protecting Private, Public Interests

The plaintiff filed the suit under her full name, Tamara Wyche, but later asked the court to seal various filings.

The court found it appropriate to use her initials in the case caption, but declined to order blanket sealing of documents.

Instead, it said the parties should meet and confer on limited redactions to protect the plaintiff’s personal privacy while also considering the public interest in access to court documents. The clerk should temporarily seal the complaint and briefs in the meantime, the court said.

Jo Anne Simon, Brooklyn, N.Y., and Stein & Vargas LLP represented the plaintiff. The Office of Attorney General, New York, represented the defendants.

To contact the reporter on this story: Joan C. Rogers in Washington at jrogers@bna.com

To contact the editor responsible for this story: S. Ethan Bowers at sbowers@bna.com

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