The U.S. Court of Appeals for the Second Circuit has just rejected a Harvard Law School graduate’s claims that the New York State Board of Law Examiners wrongly denied test-taking accommodations during the bar exam, affirming the board’s sovereign immunity protections.

In the recent opinion, authored by Second Circuit Judge William J. Nardini, the panel affirmed a ruling by U.S. District Judge Raymond Dearie of the Eastern District of New York dismissing claims brought under the Americans with Disabilities Act by a plaintiff identified as T.W., who suffers from a variety of complications resulting from a severe head injury.

The plaintiff alleged that, despite the special accommodations she was granted at Harvard Law School, including extra test time, stop-clock breaks and separate testing facilities, the New York State Board of Law Examiners denied her requests for similar accommodations, which allegedly caused her to twice fail the examination in 2013 and 2014.

This, in turn, resulted in T.W.’s inability to find employment comparable to a position she had held at her firm.

On its second consideration by the appellate court, the plaintiff argued that even though the Second Circuit previously found the board was immune from suit under Section 504 of the Rehabilitation Act, the board is not entitled to immunity as an arm of the state. She argued that even if the board was immune, she could seek declaratory judgment and injunctive relief .

The Second Circuit panel disagreed, affirming the district court’s July 2022 decision on procedural grounds, rather than on its own assessment of the merits.

“We begin by noting that this question—whether the board is an arm of the state—is hardly an unfamiliar one. In T.W. I, our court wrote, point-blank: ‘The Board of Law Examiners, as an arm of the State of New York, shares in [Eleventh Amendment] immunity.’ It therefore appears that we expressly decided this issue in T.W. I.,” Nardini wrote. “But even if we had not been so explicit, resolution of the sovereign immunity question was necessarily implicit in our holding that dismissal of the Rehabilitation Act claim was required; therefore, the law of the case doctrine settles the issue.”

The court also rejected the plaintiff’s claims for declaratory and injunctive relief, concluding that her claim for declaratory relief was sought retrospectively, rather than prospectively, and that her claim for injunctive relief was not sufficiently tied to an allegation of ongoing violations of federal law.

Mary Vargas, a partner at the Stein & Vargas law firm in Washington, D.C., represented the plaintiff and said the decision left her client without a remedy, despite the court’s acknowledgment that T.W. continues to suffer ongoing harm.

“The Americans with Disabilities Act was passed to address profound discrimination against individuals with disabilities and to allow people with disabilities to use their potential, their knowledge, their talents to make the world better for everyone,” Vargas said in an emailed statement. ”This decision clears the way for state professional licensing entities to discriminate and in so doing deprives all of us of the gifts that people with disabilities have to offer.”

 You can read more about this recent decision here.

We want to once again wish good luck to all the students who just sat for the bar exam! If you are planning to sit for the next bar exam in February 2025  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.