Disability Groups Say California Bar Reforms Don’t Go Far Enough

The State Bar of California’s proposed reforms to improve accommodations for disabled test takers have drawn sharp criticism from disability rights groups that say the measures don’t go far enough.

About 50 disability and civil rights groups, and individuals, submitted comments to the bar by its July 31 cut-off date, which were subsquently made publicly available.

Advocates for the disabled said the amended procedures if implemented would make it more difficult, time intensive, and costly to obtain testing accommodations and be a step backward for disability access and inclusion.

The state bar is revising several rules and processes for handling requests for testing accommodations, including whether applicants who haven’t received testing accommodations for a high-stakes exam previously, but have in college or law school, must provide new documentation to establish their need, and whether accommodation requests must be reviewed by a disability accommodations expert before being denied.

The reforms are due to be voted on by the bar’s Board of Trustees later this year.

The state bar is about 20 years “behind the curve” on the accommodation issue, and continues to resist making needed changes, said Claudia Center, legal director for the Disability Rights Education and Defense Fund.

“They’re inching forward, but what we really need is wholesale reform,” Center said in a phone interview.

The reform fight comes as the 270,000-member state bar faces a complaint filed in May by four disabled law school graduates along with the U.S. Department of Justice, which claims that the regulator violated the Americans with Disabilities Act by creating a “two-tier system” that failed poorer test takers because of the prohibitive cost of applying for accommodations—which often were denied anyway.

The requested accommodations are for test takers who suffer from permanent physical or mental disabilities. Their advocates say they’ve been put at a disadvantage because of the bar’s refusal to make easier the process to accommodate requests such as extending the testing schedule, allowing for customized exam materials like Braille or large print, or permitting disabled applicants to use medical aids while taking its tests.

Taking Issue

Center and other critics of the state bar’s proposals took issue with several if not each of its half-dozen proposed changes.

One would give “considerable weight” to past testing accommodations provided for timed exams in college or law school.

The Committee of Bar Examiners hasn’t automatically recognized that those prior accommodations shouldn’t be automatic precedent for future ones.

Yet according to the revised proposed amendments from the state bar, automatically approving such prior accommodations—a solution many disability rights advocates say is fair—isn’t the right answer because “it is challenging to ensure consistency and rigor across all institutions evaluating testing accommodation requests.”

The state bar’s current solution is that applicants who haven’t yet received accommodations for a “high-stakes” test like the bar exam, but did in college or law school, “must provide limited, reasonable, and specific documentation” to prove they need accommodation.

Applicants requesting the same or equivalent accommodations based on prior approvals by individual institutions must include documentation to demonstrate they have a disability or disabilities that prevent them from taking an examination under standard testing conditions, including a medical evaluation less the five years old.

That timing could be problematic for individuals “because most people get their assessments in junior high or high school,” Center said. “It’s very burdensome. It’s very expensive. People have to go out and get additional psychosocial assessment, assessments that can cost $4,000 to $5,000,” she said.

“We respectfully oppose these proposed amendments and request they be amended for further research and analysis, as their implementation has not resulted in a truly equitable change for applicants with disabilities,” said Kendra Muller, a staff attorney with Disability Rights California, in that group’s comments letter.

Testing Knowledge, not Disability

“While the proposal includes a few helpful principles, it still fails to include the necessary components of a lawful, effective, and inclusive testing accommodations program,” wrote three representatives of the Coelho Center for Disability Law, Policy and Innovation with Loyola Law School in its July 31 letter.

The proposed changes are part of the bar’s review of admission rules and practices, with the stated intention of ensuring individuals with disabilities have equal access to the twice-yearly California bar exam, and the first year law student exam, known as the baby bar, so that the tests evaluate “an individual on the knowledge, skills, and abilities the exam is designed to measure, and is not a reflection of the effects of any disability,” a memo to the board of trustees said.

Ruben Duran, California Bar Board of Trustees chairman, said he hoped for meaningful public comment “so the bar can evaluate it on the diversity and access issue and also from the angle of concern of fairness and the Americans with Disabilities Act.”

“We’re not going to have diversity on the bench unless we have diversity of lawyers,” he said in an interview.

Consent Decree Concerns

The proposals could also collide with state and federal consent decrees, disability rights advocates say.

Documentation requests are supposed to be reasonable and limited to the need for the testing accommodation requested under a California decree.

In a July 27 letter, an Ohio State law professor and two of her co-authors of the best practices report created from the consent decree said they said they were pleased to see attention being paid to the automatic approval process.

At the same time, “we believe the process needs to go even further,” wrote Ruth Colker, a professor at Moritz College of Law at the Ohio State University, together with Nancy Mather, a University of Arizona Department of Disability and Psychoeducational Studies professor emeritus, and Nicole Ofiesh, a cognitive behavioral scientist.

“Because many professors give exams that seek to mimic the kinds of questions asked on the Bar Exam, it seems especially odd to not honor accommodation decisions made by a law school,” they wrote.