A federal judge has just dismissed a lawsuit filed by a New York attorney who claims that she failed the bar exam on her first two tries because of disability bias by the New York State Board of Law Examiners. 

U.S. District Judge Raymond J. Dearie of the Eastern District of New York has ruled that the Board is entitled to 11th Amendment immunity from the lawyer’s claim under Title II of the Americans with Disabilities Act. 

The lawsuit was filed in June 2016 by a lawyer who graduated from Harvard Law School and is now identified in court documents as T.W. The suit claimed that bar examiners’ failure to accommodate T.W.’s disability led to her firing at Ropes & Gray.  

T.W. had sought the accommodations for anxiety and cognitive deficits caused by an incident in an all-terrain vehicle. 

The ADA issue was the last remaining claim in T.W.’s lawsuit. The 2nd U.S. Circuit Court of Appeals at New York had ruled in April 2021 that bar examiners could not be sued under Section 504 of the Rehabilitation Act, which bans disability discrimination by programs or activities receiving federal financial assistance. The issue was that the board does not receive federal funding, the appeals court ruled. 

In deciding on T.W.’s ADA claim, Dearie said Congress attempted to abrogate state immunity in ADA Title II suits for money damages, but it was not constitutionally valid. Congress can eliminate immunity under its authority to enforce the 14th Amendment, but in T.W.’s case, there is no alleged 14th Amendment violation, Dearie said. 

“T.W. submits that she faces continuing injury because the record of her bar examination failures has hindered her job search and career prospects,” Dearie wrote. “But T.W. never alleges that a prospective employer has inquired about her bar examination record, much less made a hiring decision based on that record. Instead, she alleges that law firms have learned ‘that she did not have the opportunity to gain the experience they seek from a 2013 graduate due to the disruptions caused by her bar examination failure.’ … The court cannot rewrite history; expungement will neither alter T.W.’s level of experience nor undo the fact that she did not successfully pass the bar until 2015. Moreover, the injunctive relief T.W. requests would suppress a record that, according to the board, it is prohibited from disclosing to employers.” 

You can read more about this case here. 

And if you have been considering sitting for the next bar exam in February 2023 and want to get a head start (which is always a good idea), just email or call us to discuss our Early Start bar review program.