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Applicant with ADHD may continue appeal of denial of test accommodations

In a November 3 ruling, U.S. District Court for the Western District of Texas dismissed several charges that the National Conference of Bar Examiners, the Texas Board of Law Examiners, and the Law School Admissions Council discriminated against an applicant with disabilities by failing to provide requested him with testing accommodations for taking the bar exam. But the court allowed some of the applicant's claims against the defendants to survive.

(Glueck v. National Conference of Bar Examiners, et al.)

The plaintiff, Andrew Glueck, a third-year law school student, alleges he suffers from Attention Deficit Hyperactivity Disorder (“ADHD”) Combined Type, Specific Learning Disorder (Reading and Comprehension Impairment), and dyslexia. Glueck alleges that his disability significantly compromises his reading comprehension and the rate at which he reads and writes. He received accommodations while pursuing a graduate degree and on law school exams, including being granted extended testing time.

Glueck filed his ADA claim under 42 U.S.C. § 12189, which states that “[a]ny person that offers examinations . . . related to applications, licensing, certification, or credentialing for . . . professional . . . purposes shall offer such examinations . . . in a place and manner accessible to persons with disabilities or offer alternative accessible arrangements for such individuals.”

In December 2016, Glueck submitted a request for accommodations with the NCBE to take the Multistate Professional Responsibility Examination (“MPRE”), an ethics exam one must take and pass to be admitted to the State Bar of Texas. He asked for extended time (50%), an audio CD, and a non-scantron answer sheet for the MPRE.

On January 23, 2017, NCBE notified Glueck that it had received his registration for the March 2017 MPRE test and that he should allow ten to fifteen days for its decision on his accommodation request.

But when NCBE denied Glueck’s request, it was too late for him to request reconsideration in time to register for the subsequent exam administration. Glueck filed suit against the NCBE, asserting claims under the Americans with Disabilities Act, the Texas Human Resources Code, and the Texas Deceptive Trade Practices Act.

The court found that the right to practice law is not a fundamental right, and that the Texas board was entitled to Eleventh Amendment state sovereign action immunity for its actions. The court also rejected Glueck’s claim that the NCBE retaliated against him or interfered with his exercise or enjoyment of his rights, since Glueck made no factual allegations in support of this claim.

But Glueck’s’ § 12189 claim under the ADA, which goes to discrimination against people disabilities on standardized examinations, survived the defendants’ motion for summary judgment, the court said, as did his Title V § 12033 claim against the state board.