Peter Vieth//July 8, 2016
Peter Vieth//July 8, 2016//
A recent law school graduate is suing to get extra time to complete the essay test of the Virginia Bar Exam.
The 2016 University of Richmond law grad is asking U.S. District Judge Henry E. Hudson to order the Virginia Board of Bar Examiners to provide the accommodation for this month’s exam session in Roanoke.
The applicant said her disability – Attention Deficit Hyperactivity Disorder combined with Panic Disorder – limits her ability to produce written responses on timed tests. She contended the Americans with Disabilities Act requires the accommodation of extra time.
Denying the request from E. Nicole Manning, the VBBE reportedly cited an expert’s conclusion that Manning’s medical documentation lacked substance.
The case highlights difficulties faced by lawyer licensing agencies in determining when to allow accommodations for ADHD claims. The issue is the basis of a cover story in the most recent edition of “The Bar Examiner,” a publication of the National Conference of Bar Examiners.
The article – by a university professor and psychologist who consults with about 20 attorney licensing agencies – states that accommodations based on ADHD diagnoses have become “fairly routine and accepted” in the past 20 years.
In Virginia, the VBBE “routinely” provides extra time for the bar exam, according to Manning’s lawsuit.
Manning was not diagnosed with ADHD until the year before she entered law school, based on information in her suit. She did not receive accommodations on timed tests until the spring semester of her first year.
A UR psychologist opined that ADHD limited Manning’s ability to perform on timed written exams, Manning said. Manning said her grades improved with extra time on law school tests.
But the VBBE’s “unnamed expert” reportedly described the documentation submitted by Manning as “virtually void of objective and verifiable information.”
The VBBE rejected Manning’s request for extra time on June 9 and again on June 21, according to Manning’s pleadings.
“Ms. Manning is entitled to take the Virginia Bar Exam in a way that accurately reflects the ‘aptitude, achievement level, and the skill’ that the Virginia State Bar Exam measures. Instead, the Defendant is attempting to penalize Ms. Manning on the basis of her disability,” wrote Manning’s attorney, Steven M. Traubert of Richmond.
Arguing for prompt injunctive relief, Manning said there is no way to put a monetary value on a seven-month delay in taking the exam with accommodations. The next bar exam will be given in February.
“A specific value cannot be placed on the postponement of a profession or the thwarting of an otherwise promising career” if Manning were to sit for the July exam and fail for lack of extra time, the lawsuit said.
Traubert – Manning’s attorney – practices at the disAbility Law Center of Virginia, a non-profit organization that represents people with disabilities.
Executive Director Colleen Miller said bar licensing agencies nationwide have recognized the obligation to provide accommodations for applicants with ADHD.
“Virginia might have been just a little bit slow to come to the table,” she said.
Miller said a settlement conference was scheduled for July 14 and a hearing on July 18. The bar exam in Roanoke begins July 26.
The VBBE had not yet filed responsive pleadings as of July 11.
VBBE secretary and treasurer Catherine Crooks Hill said the agency could not comment on pending litigation and referred inquiries to the attorney general’s office. A spokesperson for the AG’s office did not immediately respond to a request for comment.
A search of online court records disclosed no other case where the VBBE has been sued over test accommodations.
One unsuccessful 2008 examinee sued for access to his essay answers, saying he wanted to determine if his failure was due to his performance or a purported “computer glitch.”
His case moved from state to federal court, with relief denied at every level.