1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division 11 KARA GORDON, et al., Case No. 20-cv-06442-LB
12 Plaintiffs, ORDER DENYING MOTION FOR A 13 v. PRELIMINARY INJUNCTION
14 STATE BAR OF CALIFORNIA, et al., Re: ECF No. 6 15 Defendants. 16 17 INTRODUCTION 18 The three plaintiffs in this lawsuit — all with disabilities that preclude their taking the October 19 5–6, 2020 California bar exam remotely under the State Bar of California’s current testing 20 requirements — sued the State Bar and the National Conference of Bar Examiners (“NCBE”) and 21 moved for a preliminary injunction to enjoin the State Bar from requiring them to take the bar in 22 person. In the complaint, the plaintiffs contend that the defendants’ failure to accommodate their 23 inability to comply with three remote-testing conditions — no bathroom breaks during a test 24 session, no paper tests, and no physical scratch paper — violates (1) Title II of the Americans with 25 Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12131 et seq. (claim one against the State Bar), (2) 26 Title III of the ADA (claim two against the NCBE), and (3) California’s Unruh Civil Rights Act, 27 1 Cal. Civ. Code § 51 et seq. (claim three against the NCBE).1 In the motion, they contend that they 2 are likely to succeed on the merits of their ADA claims because the defendants’ “two-tiered 3 system” facially discriminates against disabled test takers, burdens and disproportionately impacts 4 them, and denies them equal and meaningful access to the exam. They contend too that the 5 defendants can accommodate their inability to comply with the remote-testing requirements, 6 without undue burden, and that absent that accommodation, they will suffer irreparable harm 7 through heightened risk of COVID-19 infection, poor performance because of the resulting stress, 8 and for one plaintiff, possible postponement of an important surgery.2 9 The State Bar opposed the motion on the grounds that the plaintiffs are not likely to succeed 10 on the merits of their claims because (1) its remote rules that promote exam security do not 11 discriminate because they are neutral, and its in-person test procedures — with heightened 12 COVID-19 protocols developed by an epidemiologist (including private hotel rooms for each test 13 taker) — allow equal and safe access to the exam, and (2) the plaintiffs’ proposed 14 accommodations would require it — in a short time — to implement new systems, causing undue 15 burden. It also contends that the plaintiffs have not established irreparable harm, given the 16 COVID-19 protocols, the lowering of the passing score for the bar by 50 points, and its 17 establishment of a provisional-licensing program that allows law-school graduates who have not 18 yet passed a bar exam to practice law until June 2022.3 19 The NCBE has authorized the State Bar to offer paper versions of the Multistate Bar 20 Examination (“MBE”) remotely, but, it contends, the State Bar makes the decisions about how it 21 will administer the exam to ensure its fairness and integrity.4 It thus opposed the motion on the 22 ground that the plaintiffs are not likely to succeed on the merits of their claims because (1) they 23 lack Article III standing for claims against the NCBE because the State Bar is the decisionmaker, 24
25 1 First Am. Compl. (“FAC”) – ECF No. 24. Citations refer to the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of the documents. 26 2 Mot. – ECF No. 6 at 26–31; Reply to State Bar Opp’n – ECF No. 47 at 14–20; Reply to NCBE Opp’n – ECF No. 47-1 at 6–11. 27 3 State Bar Opp’n – ECF No. 44 at 7–29. 1 not the NCBE, and (2) the ADA claim against it fails, in part because the NCBE has complied 2 with the rules that apply to it and in any event has authorized remote testing. It also contends that 3 the plaintiffs have not established irreparable harm (largely for the reasons that the State Bar 4 advances) or the other elements for preliminary-injunctive relief.5 5 The court denies the motion. On this record, in October 2020, the plaintiffs are not likely to 6 succeed on the merits of their claims and have not established irreparable harm. 7 8 STATEMENT 9 The State Bar of California is administering the October 2020 exam to 10,043 test takers. 10 9,600 will take the test remotely, including 462 remote test takers who were granted 11 accommodations related to their disabilities. 443 test takers, including 195 test takers who were 12 granted accommodations due to their disabilities, will take the test in person.6 13 The State Bar has requirements for taking bar remotely, including technical requirements (such 14 as a laptop with a functional webcam and a reliable internet connection) and the ability to comply 15 with remote-testing conditions.7 The in-person test takers who do not have disabilities generally 16 were unable to comply with remote-testing requirements such as a laptop with a webcam and 17 reliable access to the internet.8 The plaintiffs were unable to comply with one or more of the 18 following remote-testing conditions: (1) the ability to stay in view of the webcams for each testing 19 session, meaning, test takers can leave the webcam only for scheduled breaks; (2) an agreement 20 not to use physical scratch paper during the essay portion of the bar exam; and (3) taking the bar 21 exam via the ExamSoft software program, which delivers test questions at timed intervals, 22 monitors test takers to ensure that there is no cheating, and is entirely electronic, which means that 23 remote test takers cannot use a paper exam.9 The three plaintiffs here undisputedly have 24 5 Id. at 13–16. 25 6 Hershkowitz Decl. – ECF No. 44-1 at 9 (¶¶ 49–50). 26 7 Id. at 5 (¶¶ 23–25) & Acknowledgment of Testing Requirements, Ex. E to id., ECF No. 44-1 at 51– 56. 27 8 Hershkowitz Decl. – ECF No. 44-1 at 9 (¶ 49). 1 disabilities that preclude their compliance with one or more of the three testing conditions, and for 2 that reason, the State Bar granted their requests for testing accommodations, including (for 3 example) additional testing time, private rooms for testing, printed test materials, and mid-session 4 bathroom breaks.10 The issue thus is only whether the ADA requires the defendants to 5 accommodate the plaintiffs’ disabilities by allowing them to take the bar exam remotely. Facts 6 relevant to that issue are summarized in the next sections: (1) the State Bar’s protocols for 7 administering the October 2020 bar exam, and (2) the plaintiffs’ proposals for accommodating 8 their disabilities remotely. 9 10 1. The State Bar’s Administration of the October 2020 Bar Exam 11 Usually the State Bar — an administrative arm of the California Supreme Court — administers 12 the bar exam twice a year, in person, in a timed, closed-book, two-day examination that includes 13 essay questions, a performance test, and the NCBE’s Multistate Bar Examination (“MBE”).11 If 14 test takers need an accommodation, they must petition the State Bar, which grants hundreds of 15 testing-accommodation requests for every administration of the exam.12 16 To address the impact of COVID-19, the Supreme Court of California — rather than 17 cancelling the bar exam — implemented remote administration of the exam, hired an 18 epidemiologist to develop a protocol for in-person exam takers, and allowed 2020 law-school 19 graduates to provisionally practice law through June 1, 2022 without passing a bar exam.13 The 20 main issue here is the COVID-19 protocol for in-person exam takers. 21 22 23 24 25 10 Id. at 11–12 (¶¶ 60–62) & Testing Accommodations Notices, Exs. G–I to id. – ECF No. 44-1 at 78– 26 86. 11 Hershkowitz Decl. – ECF No. 44-1 at 3 (¶¶ 10–11). 27 12 Id. (¶ 9) 1 The State Bar developed its COVID-19 protocol with the assistance of an infectious-disease 2 expert and epidemiologist, Jeffrey Klausner, M.D., M.P.H.14 The protocol adheres to best 3 practices, as recommended by the Centers for Disease Control and Prevention and the California 4 Department of Public Health, and it includes the following: (1) each test taker has a private hotel 5 room; (2) face coverings are mandatory for all staff and exam takers; (3) alcohol-based 6 disinfectants are available for hand use; (4) there will be designated site-safety leaders; (5) 7 measures will be implemented to reduce the occupancy of communal areas, lunch areas, and 8 restrooms to reduce crowding and possible COVID-19 exposure; (6) environmental interventions 9 — such as the opening of windows and doors and the use of outside registration tables — will be 10 used; and (7) the State Bar’s COVID-19 Code of Conduct will be followed (including taking the 11 temperature of those entering the testing location).15 The hotels have safety, cleaning, disinfection, 12 and COVID-19 prevention plans that are consistent with best practices in the industry and that will 13 lower the risk of COVID-19 transmission.16 Dr. Klausner concludes that the bar exam may be 14 conducted safely and that the risk of infection (associated with attending the examination and 15 staying in a single, private hotel room) is less than visiting a grocery store and is not greater than 16 visiting a bank.”17 17 In response to the plaintiffs’ challenge to two of Dr. Klausner’s sources on the ground that 18 there has been no peer review of them, Dr. Klausner’s supplemental declaration establishes that 19 they have been submitted for peer review.18 He also responds to the plaintiffs’ contentions about 20 the risks of COVID-19 (including to disabled persons): most persons with disabilities are not at 21 22
23 14 Hershkowitz Decl. – ECF No. 44-1 at 10 (¶ 54); Klausner Decl. – ECF No. 44-2 (recounting his substantial credentials, the plan, and his opinion that the individual plaintiffs may take the bar 24 examination safely in person). 25 15 Klausner Decl., ECF No. 44-2 at 6–7 (¶¶ 36–50); Healthy Exam Plan, Ex. B to id. – ECF No. 44-2 at 24–36. 26 16 Klausner Decl., ECF No. 44-2 at 8 (¶¶ 50–51). 27 17 Id. at 8 (¶ 52). 18 Sur-Reply to State Bar’s Opp’n – ECF No. 50-1 at 5–6; Klausner Supp. Decl. – ECF No. 53 at 2–3 1 higher risk for COVID-19, and there can be an association between disability and other chronic 2 conditions that may increase the risk of COVID-19.19 3 4 2. The Plaintiffs’ Proposals for Accommodating Their Disabilities Remotely 5 The plaintiffs have disabilities that do not allow them to comply with one or more of the three 6 remote-testing conditions at issue in the litigation: no bathroom breaks during a test session, no 7 paper tests, and no physical scratch paper.20 All plaintiffs submitted declarations that they (1) have 8 hardships related to their employment if they do not take the bar examination now and (2) fear 9 poor performance on an in-person exam because of their stress about COVID-19.21 10 The plaintiffs also identify other COVID-19 concerns. Plaintiff I.C.-B. has asthma, a risk 11 factor for COVID-19.22 Plaintiff John Doe’s wife is pregnant with twins and has asthma, and he is 12 concerned about the risk that in-person test taking poses to her.23 Plaintiff K.G. has a surgery 13 scheduled on October 13, 2020 (a week after the bar exam) to ameliorate symptoms associated 14 with K.G.’s disability (a cerebrospinal-fluid leak that increases the risk of serious illness from 15 COVID-19).24 K.G.’s doctor — a specialist at Stanford — requires K.G. to take a COVID-19 test 16 two to three days before the surgery, socially distance by at least six feet, and ensure proper 17 handwashing.25 Exposure to COVID-19 might require rescheduling the surgery, causing 18 hardship.26 The plaintiffs’ expert recommends that K.G. take the bar exam remotely.27 19 19 Klausner Supp. Decl. – ECF No. 53 at 3 (¶¶ 9–10). 20 20 The State Bar approved John Doe’s application to take the exam remotely. Hershkowitz Decl. – ECF 21 No. 44-1 at 11 (¶ 62) (the State Bar granted John Doe’s petition for additional testing time, testing in a private room, and permission to circle MBE answers in the MBE question book; State Bar staff will 22 transfer the answers to the MBE answer sheet later; John Doe did not ask to take a paper test). 21 Gordon Supp. Decl. – ECF No. 47-4 at 6 (¶¶ 20–21); Callejo-Brighton Supp. Decl. – ECF No. 47-5 23 at 4 (¶¶ 13–15); Doe Supp. Decl. – ECF No. 47-6 at 4–5 (¶¶ 11–12). 24 22 Callejo-Brighton Decl. – ECF No. 6-1 at 2 (¶ 7). 23 Doe Supp. Decl. – ECF No. 47-6 at 3–4 (¶¶ 8–9). 25 24 Gordon Decl. – ECF No. 6-3 at 7 (¶ 21). 26 25 FAC – ECF No. 24 at 13 (¶ 36); Gordon Decl. – ECF No. 6-3 at 7 (¶ 22). 27 26 Gordon Supp. Decl. – ECF No. 47-4 at 5 (¶ 16). 27 Graves Decl. – ECF No. 6-4 at 10 (¶ 33) (filed before the State Bar submitted its COVID-19 1 The plaintiffs contend that the State Bar can accommodate their inability to comply with the 2 at-issue testing conditions — no bathroom breaks during a test session, no paper tests, and no 3 physical scratch paper — easily and without undue burden. 4 Disabled test takers who need bathroom breaks during test sessions can scan the bathroom at 5 the beginning of the test day to prove the absence of unauthorized material, announce their need 6 for a break on camera, take the laptop to the bathroom and leave it outside, use the bathroom 7 privately, and collect the laptop upon leaving.28 (The D.C. Bar accommodates mid-session breaks 8 for remote test takers.29) 9 Disabled test takers who need paper exams can receive them by courier or through a secure file 10 transfer that they print in front of a proctor.30 The State Bar can proctor the exam through 11 ExamSoft (in the same way it proctors other remote test takers) and through Zoom (via a second 12 device that captures the workspace with the paper exam).31 Human proctors can use Zoom 13 breakout rooms or a dedicated Zoom session to proctor and record each test session.32 Third-party 14 vendors are available for this project.33 The typed essay and performance tests can be uploaded to 15 Dropbox (or a similar file-transfer service) or returned through ExamSoft.34 The hand-marked 16 MBE answers can be sealed in front of the human proctor and returned by courier, or the test taker 17 can photograph the pages in front of the proctor and upload them to Dropbox (or a similar 18 service).35 A courier can collect the exam pages.36 (The NCBE told the State Bar that it was 19 20 21
22 28 Gonzales Decl. – ECF No. 23 at 7 (¶ 22). 23 29 Reply to State Bar Opp’n – ECF No. 47 at 11–12. 30 Gonzales Decl. – ECF No. 23 at 4 (¶ 16). 24 31 Id. at 4–5 (¶ 16). 25 32 Id. 26 33 Id. at 3 (¶10), 7 (¶ 21). 34 Id. at 5 (¶ 16). 27 35 Id. 1 “open” to having the written exam proctored either (1) in person at the test taker’s home by a 2 proctor retained by the Bar or (2) by a remote service such as a secure Zoom meeting.37) 3 Disabled test takers who need physical scratch paper can use the paper-test protocol for 4 detecting concealed pages and can use their webcam to scan a finite number of pages before each 5 test session.38 6 In addition to authorizing the State Bar to allow remote test takers to take a written MBE, the 7 NCBE points to “the State Bar’s independent role in determining how it will administer its bar 8 examination so as to fulfill its important mission in licensing lawyers in the State of California. 9 Exam security is a critical part of ensuring the fairness and integrity of any examination that is 10 used as part of a state’s process for licensing professionals and protecting the general public.”39 11 According to the State Bar, the plaintiffs’ proposals are not feasible. Virtual monitoring during 12 an entire test session allows the State Bar to verify that a test taker is not cheating during the 13 closed-book exam.40 It is difficult to verify by webcam whether physical scratch paper is blank or 14 has hidden notes.41 Distribution of the secure ExamSoft software program prevents unauthorized 15 disclosure of test questions and preserves the security and integrity of the exam.42 16 The State Bar’s admissions director provides more information about test takers with 17 disabilities that preclude their compliance with the at-issue testing conditions: 79 test takers 18 require paper copies of the test questions, 17 require mid-session restroom breaks, and 7 require 19 physical scratch paper.43 Because remote test takers have other accommodations — such as 20 additional testing time — remote administration would require customization of the remote-testing 21 schedules.44 The director and her team met with “multiple vendors” (including ExamSoft, Zoom, 22
23 37 Email, Ex. E to Hill Decl. – ECF No. 43-5 at 2. 38 Mot. – ECF No. 6 at 3. 24 39 NCBE Opp’n – ECF No. 42 at 9. 25 40 Hershkowitz Decl. – ECF No. 44-1 at 7 (¶ 35). 26 41 Id. at (¶ 38). 42 Id. at 9 (¶ 46). 27 43 Nunez Decl. – ECF No. 48 at 2 (¶¶ 2–4). 1 Prometric, ProctorTrack, and Mettl), but “none . . . can guarantee the development and 2 implementation of a new remote proctoring program that will reliably meet the needs of Plaintiffs 3 and other similarly situated test takers.”45 The State Bar has worked for months to test the remote 4 administration of the bar exam, and it is not feasible to do the same now for 100 test takers.46 5 6 3. Procedural History 7 The plaintiffs filed their complaint on September 14, 2020, and moved for a preliminary 8 injunction on September 15, 2020, attaching a proposed order that asked the court to “restrain and 9 enjoin” the defendants from “[r]equiring Plaintiffs to take the California Bar Examination in-person 10 instead of virtually with the accommodations to which they are entitled and have been granted.”47 The 11 plaintiffs amended the complaint to add an additional State Bar defendant.48 On September 21, 12 2020, they filed a new proposed order that asked the court to “restrain and enjoin” the defendants 13 from (1) “[r]equiring Plaintiffs to take the California Bar Examination in person instead of 14 remotely with the accommodations to which they are entitled and have been granted; and (2) 15 “[r]equiring all other test takers with disabilities who are approved for paper copies of the exam 16 and/or unscheduled bathroom breaks to take the California Bar Exam in person instead of 17 remotely with the accommodations to which they are entitled and have been granted.”49 All parties 18 consented to the undersigned’s jurisdiction.50 The court held a hearing on September 30, 2020. 19 20 STANDARD OF REVIEW 21 The standards for a TRO and a preliminary injunction are the same. Stuhlbarg Int’l Sales Co. 22 v. John D. Brush & Co., Inc., 240 F.3d 832, 839 n.7 (9th Cir. 2001). A movant must demonstrate 23
24 45 Id. at 3–9 (¶¶ 8–45); Nunez Supp. Decl. – ECF No. 54-1 (recounting the State Bar’s ongoing efforts to explore the feasibility of remote monitoring and delivery of paper exams). 25 46 Hershkowitz Decl. – ECF No. 44-1 at 12 (¶ 63), 16–17 (¶¶ 87–93). 26 47 Compl. – ECF No. 1; Mot. – ECF No. 6; Proposed Order – ECF No. 6-7. 48 FAC – ECF No. 24. 27 49 Am. Proposed Order – ECF No. 37. 1 (1) a likelihood of success on the merits, (2) a likelihood of irreparable harm that would result if 2 an injunction were not issued, (3) the balance of equities tips in favor of the plaintiff, and (4) an 3 injunction is in the public interest. Winter v. Nat’l Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). 4 The irreparable injury must be both likely and immediate. Id. at 20–22. “[A] plaintiff must 5 demonstrate immediate threatened injury as a prerequisite to preliminary injunctive relief.” 6 Caribbean Marine Serv. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988). 7 Before Winter, the Ninth Circuit employed a “sliding scale” test that allowed a plaintiff to 8 prove either “(1) a likelihood of success on the merits and the possibility of irreparable injury; or 9 (2) serious questions going to the merits were raised and the balance of hardships tips sharply in 10 its favor.” Walczak v. EPL Prolong, Inc., 198 F.3d 725, 731 (9th Cir. 1999) (cleaned up). On this 11 continuum, “the greater the relative hardship to [a movant], the less probability of success must be 12 shown.” Id. After Winter, the Ninth Circuit held that although the Supreme Court invalidated one 13 aspect of the sliding scale approach, the “serious questions” prong of the sliding scale survived if 14 the plaintiff satisfied the other elements for preliminary relief. Alliance for Wild Rockies v. 15 Cottrell, 632 F.3d 1127, 1131–32 (9th Cir. 2011). Thus, a preliminary injunction may be 16 appropriate when a movant raises “serious questions going to the merits” of the case and the 17 “balance of hardships tips sharply in the plaintiff’s favor,” provided that the other elements for 18 relief are satisfied. Id. at 1134–35. 19 20 ANALYSIS 21 The plaintiffs contend that (1) they are likely to succeed on the merits of their ADA claims that 22 by requiring them to test in person (because they cannot comply with one or more of the three 23 remote-testing conditions of no bathroom breaks during a test session, no paper tests, and no 24 physical scratch paper), the defendants discriminate against them, and (2) they otherwise satisfy 25 the other elements for preliminary-injunctive relief.51 The defendants counter that the plaintiffs 26 27 51 1 have not shown a likelihood of success on the merits of their claims, irreparable harm, or standing 2 for claims against the NCBE.52 The court denies the plaintiffs’ motion because on this record, in 3 October 2020, the plaintiffs have not established that they are likely to succeed on the merits of 4 their claims or shown irreparable harm. 5 6 1. Likelihood of Success on the Merits: ADA Claim Against the State Bar 7 The State Bar undisputedly granted the plaintiffs their requests for accommodations (such as 8 paper tests and mid-session bathroom breaks), albeit through in-person testing. The parties dispute 9 whether the ADA requires the State Bar to further accommodate the plaintiffs by allowing them to 10 take the exam remotely. On this record, it does not. 11 Title II of the ADA, 42 U.S.C. § 12131 et seq., prohibits discrimination on the basis of a 12 disability in the programs, services, or activities of a public entity. Federal regulations require a 13 public entity to “make reasonable modifications in policies, practices, or procedures when the 14 modifications are necessary to avoid discrimination on the basis of disability, unless the public 15 entity can demonstrate that making the modifications would fundamentally alter the nature of the 16 service, program, or activity.” 28 C.F.R. § 35.130(b)(7). The elements of a claim under Title II of 17 the ADA are as follows: (1) the plaintiff is an individual with a disability; (2) the plaintiff is 18 otherwise qualified to participate in or receive the benefit of some public entity's services, 19 programs, or activities; (3) the plaintiff was either excluded from participation in or denied the 20 benefits of the public entity’s services, programs or activities, or was otherwise discriminated 21 against by the public entity; and (4) such exclusion, denial of benefits, or discrimination was by 22 reason of the plaintiff’s disability. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). 23 On this record, in October 2020, the plaintiffs have not shown a likelihood of success on the 24 merits because the State Bar’s criteria for remote testing do not discriminate: they are neutral 25 facially and as applied to the plaintiffs, and they ensure equal access to the October 2020 exam. In 26 27 1 any event, as the State Bar contends, the plaintiffs’ proposed accommodations impose undue 2 burden on the State Bar and are not feasible before the October exam. 3 1.1 The Criteria for Remote Testing are not Discriminatory 4 The plaintiffs contend that they are likely to prevail on the merits of the ADA claim that the 5 remote-testing requirements are facially discriminatory, burden them disproportionately, and deny 6 them equal and meaningful access to the exam.53 The plaintiffs have not established that they are 7 likely to succeed on the claim. 8 First, the conditions of remote testing do not facially discriminate against the plaintiffs. A 9 facially discriminatory policy is one that categorically excludes disabled persons from 10 participation in a public program. Lovell v. Chandler, 303 F.3d 1039, 1057 (9th Cir. 2002). To 11 support their claims of facial discrimination, the plaintiffs cite cases where municipal ordinances 12 bar methadone clinics.54 See Bay Area Addiction Research & Treatment, Inc. v. City of Antioch, 13 179 F.3d 725, 733–34 (9th Cir. 1999); MX Group, Inc. v. City of Covington, 293 F.3d 326, 344–45 14 (6th Cir. 2002). But the ordinances in those cases target disabled persons receiving treatment for 15 drug addiction. By contrast, the State Bar’s security-related remote-testing conditions apply to all 16 test takers. 17 The plaintiffs, citing Lovell, nonetheless contend that the three challenged remote-testing 18 conditions (as opposed to other equipment-based conditions) apply only to disabled persons.55 303 19 F.3d at 1054. Again, they do not. In Lovell, the Ninth Circuit affirmed the district court’s partial 20 summary-judgment in favor of the plaintiffs and against the state of Hawaii under the ADA and § 21 504 of the Rehabilitation Act based on Hawaii’s exclusion of certain disabled persons from its 22 health-insurance program. Id. at 1044. By contrast, the challenged remote-testing conditions do 23 not apply only to disabled test takers and instead apply to all test takers. 24 25 26 53 Mot. – ECF No. 6 at 26–30; Reply to State Bar Opp’n – ECF No. 47 at 14–18. 27 54 Mot. – ECF No. 6 at 26–27. 1 In sum, to prevail on a facial challenge, the plaintiffs must show that “no set of circumstances 2 exists under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). 3 They have not. 4 Second, on this record, the conditions do not burden the plaintiffs disproportionately. Most of 5 the in-person test takers are not disabled. Of the 657 test takers with disability-related 6 accommodations, the State Bar approved 462 (or 70 percent) for remote testing. The plaintiffs 7 counter that 195 (or 44 percent) of the in-person test takers are disabled persons with testing 8 accommodations.56 But this number does not necessarily establish that the State Bar denied the 9 plaintiffs “meaningful access to state-provided services.” Crowder v. Kitagawa, 81 F.3d 1480, 10 1484 (9th Cir. 1996) (cleaned up) (citing Alexander v. Choate, 469 U.S. 287, 302 (1985)). There 11 are practical limits — given the safety and security issues with the administration of the bar exam 12 in person and remotely — to the State Bar’s ability in October 2020 to accommodate all needs 13 remotely. 14 Third, the plaintiffs have not shown that they are likely to succeed on the merits of their claim 15 that the remote-testing conditions deny them equal and meaningful access to the exam. Their main 16 argument is that disabled test takers must either test remotely without their accommodations or 17 test in person with their accommodations and risk catching COVID-19.57 The concern about 18 COVID-19 contagion applies to all in-person test takers. Moreover, with its infectious-disease 19 expert and epidemiologist, the State Bar has implemented safety measures — including private 20 rooms and other COVID-19 protocols — for in-person test takers who cannot use the remote 21 format. The plaintiffs do not meaningfully challenge the State Bar’s evidence that the protocols 22 are consistent with best practices, lower the risk of COVID-19 transmission, and allow the State 23 Bar to administer the bar exam safely. 24 Instead, the plaintiffs argue that a public entity’s programs must be equally safe for disabled 25 and non-disabled persons and that the State Bar’s remote-testing conditions violate that 26
27 56 Id. at 16. 1 principle.58 The cases they cite do not compel the conclusion that the State Bar provides unequally 2 safe programs. See California Sch. for the Blind v. Honig, 736 F.2d 538, 545–46 (9th Cir. 1984); 3 Putman v. Oakland Unified Sch. Dist., No. C-93-3772-CW, 1995 WL 873734, at *13 (N.D. Cal. 4 June 9, 1995). In California School for the Blind, the Ninth Circuit affirmed the district court’s 5 preliminary injunction ordering school officials to conduct additional tests to ensure seismic safety 6 or to close the school. 736 F.3d at 540. In Putnam, the district court addressed the existence of 7 architectural barriers (such as excessively steep wheelchair ramps and heavy doors) that made 8 Oakland schools inaccessible to students in wheelchairs. 1995 WL 873734, at *1, 14. Both cases 9 involved barriers affecting only disabled persons, and neither supports the conclusion that the 10 State Bar’s testing conditions and protocols — which apply to all test takers — violate the ADA in 11 October 2020, especially given the considerable efforts that the State Bar has taken to administer 12 the bar safely and securely to over 10,000 test takers. 13 1.2 The Plaintiffs’ Proposed Accommodations Impose Undue Burden 14 The State Bar contends that implementing the plaintiffs’ proposed accommodations — in the 15 form of couriers and remote proctoring, for example — would be a fundamental alteration to its 16 administration of the bar exam.59 The plaintiffs’ procedures are untested, the State Bar has 17 evaluated them with vendors and cannot implement them on this timeline, and at this point, they 18 apparently would disrupt the overall administration of the exam. Thus, even if the State Bar’s 19 remote-testing conditions are discriminatory, the plaintiffs’ relief would be a fundamental 20 alteration that imposes an undue burden on the State Bar. 21 The ADA does not require the State Bar “to take any action that it can demonstrate would 22 result in a fundamental alteration in the nature of the service, program, or activity or in undue 23 financial and administrative burden.” 28 C.F.R. § 35.164. Even if the remote-testing conditions 24 result in a disproportionate or undue burden on disabled persons, the court determines whether the 25 26 27 58 Mot. – ECF No. 6 at 19 (citations omitted); Reply to State Opp’n – ECF No. 47 at 17 (citations omitted). 1 plaintiffs’ proposed modifications to the conditions are reasonable or whether they require 2 fundamental alterations to the program. Crowder, 81 F.3d at 1485. 3 Accommodating the plaintiffs would require different procedures for roughly 100 test takers, 4 some with additional accommodations such as an extended time to take the exam. The plaintiffs 5 do not meaningfully challenge the State Bar’s evidence about feasibility and implementation, 6 except to say that it is a surmountable problem that the State Bar incurred by ignoring the 7 plaintiffs’ needs.60 It may be that the State Bar’s future administration of the bar exam will allow 8 the plaintiffs’ suggested accommodations. But on this record, the State Bar has demonstrated that 9 for the October 2020 bar, the proposed accommodations would fundamentally change, disrupt, 10 and burden the State Bar’s administration of the exam. 11 12 2. Likelihood of Success on the Merits: ADA Claim Against the NCBE 13 The NCBE contends that the plaintiffs are not likely to succeed on the merits of the ADA 14 claims for two reasons: (1) the plaintiffs lack standing because the NCBE will allow a remote 15 written MBE, and thus the plaintiffs have not shown an injury fairly traceable to the NCBE that 16 will be redressed by a favorable judicial decision; and (2) the plaintiffs do not state an ADA claim 17 against it.61 The plaintiffs lack standing and are not likely to prevail on the merits of the claim. 18 2.1 Standing 19 Federal-court jurisdiction extends only to “cases” and “controversies.” Raines v. Byrd, 521 20 U.S. 811, 818 (1997); see Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). To establish 21 standing, “[t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the 22 challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial 23 decision.” Spokeo, 136 S. Ct. at 1547 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 24 (1992)). 25 26
27 60 Reply to State Bar Opp’n – ECF No. 47 at 18–19. 1 To establish that an injury is “fairly traceable” to the defendant, “there must be a causal 2 connection between the injury and the conduct complained of[:] the injury has to be “fairly . . . 3 trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent 4 action of some third party not before the court.” Lujan, 504 U.S. at 560 (quoting Simon v. Eastern 5 Ky. Welfare Rights Organization, 426 U.S. 26, 41–42 (1976)). 6 To establish redressability, a plaintiff must show that it is “likely, as opposed to merely 7 speculative, that the injury will be redressed by a favorable decision.” Id. at 561 (quoting Simon 8 426 U.S. 26, 38, 43) (cleaned up). A plaintiff’s burden to demonstrate redressability is “relatively 9 modest.” Renee v. Duncan, 686 F.3d 1002, 1013 (9th Cir. 2012) (quoting Bennett v. Spear, 520 10 U.S. 154, 171 (1997)). A plaintiff “need not demonstrate that there is a ‘guarantee’ that [the] 11 injuries will be redressed by a favorable decision.” Id. (quotation omitted). “[R]ather, a plaintiff 12 need only ‘show a “substantial likelihood” that the relief sought would redress the injury.’” M.S. v. 13 Brown, 902 F.3d 1076, 1083 (9th Cir. 2018) (quoting Mayfield v. United States, 599 F.3d 964, 971 14 (9th Cir. 2010)). “If, however, a favorable judicial decision would not require the defendant to 15 redress the plaintiff’s claimed injury, the plaintiff cannot demonstrate redressability, see, e.g., 16 Mayfield, 599 F.3d at 971, unless she adduces facts to show that the defendant or a third party are 17 nonetheless likely to provide redress as a result of the decision, see Lujan, 504 U.S. at 562.” Id. 18 The NCBE has said that it will allow remote proctoring of the MBE and remote paper tests, 19 and it has told the State Bar this. It contends that the decision about remote testing thus is the State 20 Bar’s decision, and it is not fairly “traceable to [the] NCBE.”62 Under the circumstances, and 21 based on these representations, the plaintiffs do not have Article III standing. The plaintiffs 22 counter that the need for “reasonable security measures” and the NCBE’s requirement of in-person 23 proctoring mean that both defendants’ practices cause their injuries.63 Given the NCBE’s 24 concessions, this is not obviously so. Nonetheless, given the relatively modest burden that the 25 plaintiffs have to establish redressability, the court addresses the ADA claim in the next section. 26
27 62 Id. at 12; Hill Decl. – ECF No. 43 at 5 (¶¶ 18–19). 1 2.2 ADA Claim 2 The NCBE contends that the plaintiffs are not likely to succeed on the merits of the ADA 3 claim because it is not a public accommodation subject to Title III of the ADA.64 The plaintiffs 4 counter that “this distinction is of little consequence” because they have an Unruh Act claim 5 against the NCBE.65 The plaintiffs are not likely to succeed on the merits of the claims. 6 First, the plaintiffs do not challenge the NCBE’s contention that it is not a private 7 establishment that is considered a public accommodation because it is not one of the twelve 8 categories of private establishments listed in Title III of the ADA. See 42 U.S.C. § 12181(7) 9 (listing twelve categories that are considered “public accommodations” if the establishment affects 10 interstate commerce); Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 11 2000) ( “public accommodations” are “actual, physical places where goods or services are open to 12 the public, and places where the public gets those goods or services”). They also do not 13 meaningfully challenge the NCBE’s contention that it is governed by 42 U.S.C. § 12189, which 14 applies to private entities offering exams and requires the NCBE to offer its exams in a place and 15 manner accessible to disabled individuals or to offer “alternative accessible arrangements.” 16 Finally, they do not challenge the NCBE’s contention that it has done all that it can — given its 17 relative responsibilities compared to the State Bar — to offer the MBE at equally convenient 18 locations and with conditions comparable to those given to non-disabled persons.66 19 Second, the plaintiffs did not cite the Unruh Act in their preliminary-injunction motion and 20 instead challenged both defendants’ conduct collectively under the ADA.67 In any event, the ADA 21 violation is the predicate claim for the Unruh Act claim. The plaintiffs thus are not likely to 22 succeed on the merits of the claim for the same reasons that they are not likely to succeed on the 23 merits of the Title II ADA claim against the State Bar, at least for the October 2020 bar exam. 24 25 26 64 NCBE Opp’n – ECF No. 42 at 13–16. 65 Reply to NCBE Opp’n – ECF No. 47-1 at 6–7. 27 66 NCBE Opp’n – ECF No. 42 at 13–16; cf. Reply to NCBE Opp’n – ECF No. 47-1. 1 3. Remaining Winter Factors 2 The remaining elements are a likelihood of irreparable harm if an injunction does not issue, the 3 balance of equities tips in the plaintiffs’ favor, and an injunction is in the public interest. Winter, 4 |} 555 US. at 20. 5 The plaintiffs have not established irreparable harm. Their concerns about COVID-19, poor 6 || performance, and lost professional opportunities are no different than the concerns of any in- 7 person test taker. COVID-19 is a public-health crisis, and it causes understandable stress. But on 8 || this record, given the State Bar’s COVID-19 protocols, the harm to the plaintiffs is speculative. 9 The State Bar also has mitigated the harm with its provisional-license program and its lowering of 10 || the passing score by 50 points. 11 Given the court’s holdings on the plaintiffs’ likelihood of success on the merits of the claims 12 and irreparable harm, it does not reach the remaining Winter elements.
CONCLUSION 3 15 The court denies the plaintiffs’ motion for a preliminary injunction. a 16 IT IS SO ORDERED. 3 17 Dated: September 30, 2020 LAE 18 LAUREL BEELER 19 United States Magistrate Judge 20 21 22 23 24 25 26 27 28