Virginia Lawyers Weekly VA Lawyers Weekly
A law student who was denied testing accommodations by the Virginia Board of Bar Examiners should have sought state-court review. In addition, the Board was immune from the disability claims, and the student failed to state a Fourteenth Amendment claim.
Background
In 2012, Plaintiff Donshur Oliver was diagnosed with ADHD, an Adjustment Disorder, and Mixed Anxiety and Depressed Mood. As a result, he received accommodations while attending law school, including extra time and breaks during exams and a separate exam room or reduced distraction environment. In anticipation of the Virginia Bar Examination, in 2016 Oliver obtained an updated psychological evaluation, with diagnoses of a Specific Reading Disorder and Major Depressive Disorder. In his Bar application, Oliver requested testing accommodations, specifically “additional testing time, use of a reader, separate testing area, and a private testing room.”
Bar applications are submitted to and reviewed by the Virginia Board of Bar Examiners, which is a public entity and an agency of the Supreme Court of Virginia. Petitions for accommodations are reviewed on a case-by-case basis in accordance with the ADA. On June 9, 2016, the Board denied Oliver’s request by letter, stating that the Board’s expert review determined that his submitted clinical documentation didn’t support the request for additional time. Oliver requested reconsideration and provided additional documentation from his physician, but the Board affirmed its denial.
Oliver sat for the Virginia Bar Exam without accommodation; he missed a passing score by three points. Oliver took the Michigan Bar Exam with accommodations and passed. He currently works as an attorney in Michigan, but he wishes to practice in his home state of Virginia. He brought this action alleging claims against the Board under the ADA, the Rehabilitation Act, and the Equal Protection Clause of the Fourteenth Amendment.
Rooker-Feldman
The Rooker-Feldman doctrine prevents lower federal courts from hearing cases where a plaintiff, under the auspice of bringing a constitutional claim, seeks relief from a state action or proceeding that is essentially judicial in nature.
Here, the Board’s adjudication of Oliver’s request was more judicial than administrative in nature. The Board considered Oliver’s request for a “waiver” of the time constraints and other standardized test-taking procedures that normally apply to Virginia Bar examinees. The Board was presented with competing expert reports regarding Oliver’s disability, and it had to determine based on those reports, Oliver’s medical and academic records, relevant law, and its own experience and precedents whether it should grant the requested accommodations. Adjudication of current rights such as those arising from the ADA is, as the U.S. Supreme Court has held, the essence of a judicial proceeding. Thus, the Board performed a judicial function when it denied Oliver’s petition for accommodations on the Virginia bar examination.
Oliver’s complaint makes clear that he seeks a determination from this court that the state court, through the Board, wrongly applied the ADA in deciding the merits of his petition for accommodations. Although Oliver doesn’t appear to have presented ADA-specific or constitutional arguments to the Board, he had the opportunity to raise those arguments in an appeal of the Board’s decision to the Virginia Supreme Court. Instead of filing such an appeal, Oliver brings this suit.
Oliver claims that he didn’t appeal the Board’s decision because he was misled by the language in a letter accompanying his Bar Examination results. This letter stated: “There is no additional review or regrading of your essay examination score and no additional score information is available.” But there’s no connection between Oliver’s ability to appeal the Board’s accommodations decision and the letter conveying his examination results. The temporal gap alone renders Oliver’s professed confusion incredible: The Board denied reconsideration on July 6, 2016, while Bar results were not released until October 20, 2016. Moreover, the letter clearly states that it is the recipient’s “essay examination score” that is unreviewable. To say that Oliver — a graduate of law school — was misled by this letter is frankly inconceivable.
Because Oliver failed to take his claims to the Virginia Supreme Court, an avenue entirely open to him, he forfeited his right to obtain review of the state court decision in this court. Although the analysis could end here, the 4th Circuit has not previously addressed Rooker-Feldman’s application to erstwhile appeals of Board decisions in the specific context of Bar Examination accommodations, so the court will address alternative grounds for dismissal.
Sovereign immunity – ADA
Oliver has failed to prove that Congress validly abrogated Virginia’s sovereign immunity for purposes of applying Title II of the ADA to state-regulated professional licensing. The Eleventh Amendment establishes that the states may not be sued by private individuals in federal court. Because this immunity extends to the “agents and instrumentalities” of the states as well, the Board enjoys the state’s sovereign immunity as an arm of the Supreme Court of Virginia.
But such immunity is not absolute. To begin with, the right of access to the courts discussed in Lane is not a right to practice law and represent a client before the courts. Similarly, the right to pursue one’s chosen profession or common calling is not a fundamental right guaranteed by the Fourteenth Amendment. In addition, the U.S. Supreme Court has held that the Fourteenth Amendment doesn’t require states to make special accommodations for the disabled, so long as their actions towards such individuals are rational. Accordingly, in the context of professional licensing examinations, Title II doesn’t enforce any fundamental right, and the court finds no historical record to indicate that Congress enacted Title II to address irrational disability discrimination in professional licensing.
Congruence and proportionality
Because state professional licensing doesn’t implicate fundamental rights, rational-basis review is appropriate. Here, the abrogation of sovereign immunity would require states to justify a significant range of rational, everyday licensing decisions that would otherwise be constitutional. Every time a disgruntled bar applicant disagrees with the Board’s decision to listen to one doctor over another with regard to accommodations or disciplinary measures, the door would stand open to litigation in federal court. The potential magnitude of this opening counsels against abrogation, as does the fact that doing so may have Tenth Amendment consequences as well.
For all these reasons, the remedial scheme established by Title II is neither congruent nor proportional to the negligible history of disability-based discrimination in state-administered professional licensing, and it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior in this context. As a result, Congress did not validly abrogate sovereign immunity with regard to discrimination in the specific field of legal licensing, and the court lacks jurisdiction over Oliver’s ADA claim.
Sovereign immunity – Rehabilitation Act
Although Oliver was unable to find any evidence that the Board received federal funding, he clings to the argument that, because the Supreme Court of Virginia receives federal funding for programs, and because the Board is an arm of the Virginia Supreme Court, the Board indirectly benefits from the federal funds.
This position ignores the “piecemeal” structure of the Rehabilitation Act’s waiver provision, as well as the “knowing and voluntary” requirement imposed by the 4th Circuit. The same goes for Oliver’s unsupported argument that the Board receives federal funds in the form of vouchers supplied by other entities to cover Bar exam-takers’ costs and fees. At the very least, such a scheme would give rise to ambiguity as to the Board’s knowing acceptance of federal funds, and, as stated above, ambiguities are construed in favor of the sovereign in this analysis.
Accordingly, the Board does not accept federal funds and has not waived its Eleventh Amendment sovereign immunity with regard to the Rehabilitation Act. Therefore, the court lacks jurisdiction over this claim as well.
Equal protection
Finally, Oliver fails to sufficiently allege that he was treated differently from other similarly situated test-takers. The complaint states simply that the Board “denied Oliver reasonable accommodations,” yet it goes on to claim that this individual denial “discriminates against Oliver and other learning disabled and others with disabilities examinees [sic].” It then alleges that the Board “is discriminating and violating the equal protection clause against Oliver, and other [sic] similarly situated, by denying learning disabled and other with disabilities examinees [sic] equal access to the bar examination and the legal profession.”
These bare allegations are insufficient to prove that the Board took an affirmative action toward or against Oliver that it did not take in the case of a similarly situated individual. The absence of firm comparators renders Oliver’s claim nebulous at best, leaving the court to wonder if Oliver is similarly situated to a test-taker without disabilities, or to a test-taker who was similarly disabled yet granted accommodations while Oliver was not. Such an ambiguous claim is not viable. Accordingly, the complaint fails to plead unequal treatment that resulted from intentional or purposeful discrimination.
Moreover, to the extent Oliver claims his disparate treatment was that he was not placed on what he perceived to be equal footing with other test-takers, the state has a rational and legitimate interest in preserving the integrity of the bar exam, given that the process of attorney qualification and licensing impacts the public interest. In addition, given that the Board does grant accommodations when it finds them to be warranted, the fact that it determined that accommodations were not warranted in Oliver’s case does not alone render its policies and procedures unconstitutional.
Taking Oliver’s allegations as true, the Board provided extensive justifications for its denial of his requested accommodations. While Oliver has alleged that he does not agree with the Board’s decision, he has not alleged facts to show that the decision was arbitrary and capricious, or otherwise divorced from the Board’s purpose in regulating and administering the bar examination. For these reasons and those stated above, Oliver fails to state a claim for a violation of the Equal Protection Clause.
Motion to dismiss granted.
Oliver v. Va. Bd. of Bar Examiners, Case No. 3:17cv492, Apr. 26, 2018. EDVA at Richmond (Hudson). VLW No. 018-3-166, 31 pp.
