By Bill Wichert

Law360 (October 2, 2020, 8:18 PM EDT) -- Remote bar exam rules like those that limit bathroom breaks and restrict the use of scratch paper are forcing law graduates with disabilities across the nation to choose between going without certain accommodations or potentially exposing themselves to COVID-19 by taking an in-person test.

With thousands of examinees scheduled to test remotely in New Jersey, Massachusetts, Texas, Washington, D.C., and 15 other states Monday and Tuesday, potential test-takers with disabilities said such measures discriminate against them and heighten fears about their performance on electronic exams that already have been beset with technological concerns.

"It's wild how much people with disabilities have really kind of been almost sacrificed in this, in the sense that ... if it works for most of the people, that seems to be good enough," said 2019 New York University School of Law graduate Melanie Blair, who has ADHD and is planning to take the Illinois bar exam remotely. "It's really, really frustrating."

"It really feels like we're kind of forgotten about and left to beg for ourselves," Blair added. "In our examiners' ... panic and stress about trying to make this work, they're OK sacrificing us."

Testing officials have cited security concerns to explain the restrictions at issue and claimed that certain alternative measures are not feasible.

James Chang, assistant general counsel for the State Bar of California, made such points during a court hearing Wednesday in a suit from three potential test-takers challenging a requirement that prospective examinees with disabilities take the state's test in person in order to receive certain accommodations.

Addressing the plaintiffs' preliminary injunction request to let them and people with similar needs test remotely, Chang told U.S. Magistrate Judge Laurel Beeler, "One of the main reasons the state bar is administering the paper exam in person is because of the security need to maintain physical custody of those paper exams at all times."

If one of those tests "finds its way online on the morning of the exam, that could potentially invalidate the bar exam for the entire population of 10,000 test-takers who are taking the exam this year," Chang added during the Zoom hearing.

Judge Beeler acknowledged those security concerns in an order later that day denying the plaintiffs' motion. She said the remote testing restrictions apply to all test-takers and don't discriminate against people with disabilities, and that the plaintiffs' proposed solutions — such as using couriers and remote proctoring — would impose an "undue burden" on the state bar.

"There are practical limits — given the safety and security issues with the administration of the bar exam in person and remotely — to the state bar's ability in October 2020 to accommodate all needs remotely," Judge Beeler said.

The plaintiffs later asked the Ninth Circuit to review that decision and issue an injunction allowing them to take the remote exam with their requested accommodations. As of Friday night, the appellate court had not issued a decision.

After the judge's ruling came out, Beth Karp, a 2020 graduate of the University of Chicago School of Law and director of accommodations at the National Disabled Law Students Association, stressed on Wednesday that in certain cases, other jurisdictions have approved measures similar to what was sought by the California plaintiffs.

Some potential test-takers with disabilities secured such arrangements after getting lawyers involved, Karp noted.

She pointed to her own situation as an example. Due to her disability, which causes light sensitivity, she could not take the remote exam in Illinois. After a disability rights legal group sent a letter on her behalf to the Illinois Board of Admissions to the Bar, she ultimately received approval to take a paper exam remotely in a hotel room by herself and be proctored via Zoom.

"Feasibility is sometimes used as a proxy for willpower and, when I hear someone saying something is infeasible, I often hear that … what they're really saying is that they lack the will to do it," Karp said.

The remote-testing concerns raised by the plaintiffs in the Golden State litigation were echoed by potential examinees with disabilities around the country.

The National Disabled Law Students Association's director of professional development, Jordan Berger, who has a form of irritable bowel syndrome, among other disabilities, said she has similar concerns to one of the California plaintiffs about bathroom breaks as she prepares to take the New York bar exam remotely from Indiana.

A 2020 NYU School of Law graduate, Berger said she would have had unlimited bathroom access if she had taken the exam in person in July, which was her original plan before New York testing officials canceled that exam due to the coronavirus outbreak. Now, she will only be allowed to use the bathroom at certain times.

Berger said she asked to be able to use the bathroom at any time, but the New York State Board of Law Examiners told her that the only way to have unlimited access would be to return to New York for an in-person test. That scenario posed a number of concerns for her, including the risk of COVID-19 exposure, Berger said.

Berger said that due to the threat of the virus, "the only time I really go into … a public place is to the grocery store," and that she tries to stay about 12 feet away from people, adding, "I feel like I wasn't going to have that control at all in the testing environment."

She also noted she can't predict her gastrointestinal problems and that it would be very distracting to try to fight through possible severe pain during the remote exam.

"You just hope you're not making your symptoms worse by trying to control them," she said.

Berger's fellow NYU Law alum, Blair, said she asked Illinois testing officials if she could take the exam in person with paper materials, scratch paper and ear plugs, but they denied her request.

On the remote exam, Blair said she will only be allowed to use physical scratch paper on one of the three portions of the test. Given that restriction and her ADHD, Blair said she is worried about "my ability to organize my thoughts" and type them out. Without being able to mark up paper materials or use scratch paper, "it's so easy for me to skip over words," she said.

"It'll completely change … some of the questions if I miss a word," she said, adding that not having those materials is "a massive disadvantage."

Representatives for the New York and Illinois boards did not respond to requests for comment.

Potential examinees with disabilities also have raised concerns about an artificial intelligence program that will be used to detect possible cheating on the remote exams. The AI function will flag movements, sounds and other abnormalities for further review by human proctors.

For Caitlyn Tallarico, who has Type 1 diabetes and will be taking the Pennsylvania bar exam remotely, the system will likely raise such flags if her glucose monitor beeps and she has to increase her blood sugar levels by having food or juice.

"I don't know how many times this will flag throughout the three-day exam, but again, there's nothing I can do about it," said Tallarico, a 2020 graduate of Widener University Commonwealth Law School. "It's [either] take care of my blood sugar or pass out at the table."

The potential flagging has made her more stressed about an already stressful situation and will be a distraction during the exam, Tallarico said. She had alerted the Pennsylvania Board of Law Examiners to her condition and previously received its approval to use her monitor when the state's exam was originally supposed to be administered in person in July.

"I don't know if I'm going to be able to be in the zone … the way I would have otherwise," she said. "I just think this is going to … throw a wrench into my ability to just stay focused the entire time."

David Fine, chair of the Pennsylvania board, said "the flag itself means nothing" and only alerts testing officials to review a video file.

"In the case of a person who has alerted us that that person may need to use supplies related to diabetes … we would look at the video file and we would say, 'Oh, John Doe is doing exactly what he said he might need to do. Nevermind,'" Fine said. "There would be no consequence to John Doe at all."

As for general claims that people with disabilities are facing discrimination when it comes to remote testing, Fine added: "We've done the very best we can and we have a tremendous amount of respect for all of our applicants, those who have disabilities, those who don't have disabilities, and we've done our very best to work hard to find ways to make the exam accessible to everyone as equally as we can possibly make it."

But Karp said the issue stems in part from how the remote testing was designed in the first place. As she put it, "The problem isn't people's medical conditions. The problem is that the test wasn't designed for their body."

"The bottom line is that they designed a test for the mainstream of test-takers that was safe — in spite of its other problems, it kept them safe from COVID — and they refused to find workarounds to extend protections to the very small minority of test-takers that the exam was not designed for," Karp said.

--Editing by Aaron Pelc and Orlando Lorenzo.

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