A disabled law school graduate sued the State Bar of California for violating the Americans with Disabilities Act (ADA), claiming it failed to properly accommodate his needs when he took the bar exam. The case, which the plaintiff lost because the District Court believed the State Bar has sovereign immunity, will be heard in September by the Ninth Circuit Court of Appeals.

A published order from Chief Judge Mary H. Murguia on July 21, said that the Ninth Circuit Court of Appeal will hear the case of Benjamin Kohn v. State Bar of California and the Committee of Bar Examiners (Committee) en banc. Under her order, the Ninth Circuit will review the motion to dismiss that had been issued by Phyllis J. Hamilton, United States District Judge for the Northern District of California on October 27, 2020.

Kohn, who failed the bar exam on three previous occasions from 2018 to 2020, has several psychological and physical conditions, including autism, visual impairments, and other neurological disorders. He asked for and was granted a number of accommodations each time he took the bar exam. Some were granted while others were denied. He claims that his doctors had approved giving him such concessions as 150% extra time, various equipment that would improve his efficiency and comfort, and additional break time.

Prior to his fourth attempt, Kohn again requested every adjustment that was previously denied. This time, the Committee complied with his previous request and gave him some additional time. He was denied permission to take the exam on a weekend and have a private testing room, pre-scheduled breaks, a hotel room, and supervision by “an experienced proctor.” Kohn filed for a preliminary injunction that directed defendants to grant his petition and give him declaratory relief that granted all his requests. Hamilton denied Kohn’s relief requests under the Federal Rules of Civil Procedure, which require that the claims be legally sufficient.

Judge Hamilton addressed Kohn’s alleged ADA violations, which defendants argued were blocked by the Bar’s sovereign immunity. They said the State Bar is immune from claims of damages because Kohn “failed to plead a cognizable ADA violation.” Citing the Eleventh Amendment to the U.S. Constitution, she said that the “judicial power of the United States shall not be construed to extend to any suit…against the United States…(and) no state or its agencies may be sued in federal court without consent.”

“This immunity extends to defendants, which are state agencies,” she concluded. “The Eleventh Amendment’s grant of sovereign immunity bars monetary relief from state agencies such as California’s Bar Association and Bar Court,” Hamilton wrote.

To support her conclusion, the judge cited precedent that held “it is undisputed that Congress unequivocally expressed its intent to abrogate Eleventh Amendment immunity in enacting the ADA.” She then discussed whether Congress did so “pursuant to a valid grant of constitutional authority.” She noted that a valid denial of the Eleventh Amendment requires denial of a “fundamental right of access to the courts.” This was not present, she wrote, because “plaintiff does not have a fundamental right to take the California Bar Exam or to practice law.”

Precedent holds that only a “rational basis standard of review” is required. Under this standard, California is allowed to “set its own bar examination standards” because this right is “rationally related to the legitimate government need to ensure the quality of attorneys within the state.” Kohn failed to persuade the district court that he has a fundamental right to take the bar exam and that, as a disabled person, he is a member of a suspect class. Hamilton also said that the Equal Protection Clause, which prohibits “irrational and invidious discrimination” against the disabled, would not apply because Kohn had failed to show that the State Bar’s testing procedures violated the ADA.

Kohn argued that a 2021 Ninth Circuit decision in Crowe v. Oregon would support his argument against the Bar’s sovereign immunity. He said that the Oregon State Bar did not enjoy sovereign immunity because it did not “perform core government functions.” The District Court, however, ruled that the defendants are immune from suits for damages under the ADA and Kohn did not “identify further facts that would state a claim.” She dismissed his claims with prejudice.

A three-judge panel of the Ninth Circuit, composed of Judges Kim Wardlaw, Consuelo M. Callahan and Jacqueline H. Nguyen, heard Kohn’s appeal on February 15. Kohn argued that a 2021 Ninth Circuit decision in Crowe v. Oregon held that the Oregon Bar did not enjoy sovereign immunity because it did not “perform core government functions.” One California appellate judge argued that the Oregon ruling and Hamilton’s California opinion created “an intra-Circuit conflict on a critical question of constitutional law, even though the Oregon case “did not concern a state attorney regulatory agency under the control of the State Supreme Court,” but was about free speech and freedom of association based on political statements.

The Ninth Circuit will hear oral argument on the issue of whether the State Bar has sovereign immunity. Murguia’s one-paragraph order states only that “Upon the vote of a majority of nonrecused active judges, it is ordered that this case be heard en banc.” They will hear it the week of September 18.