In re O.M.
| Decision Date | 03 March 2023 |
| Docket Number | 23-AP-048 |
| Citation | 2023 VT 14 |
| Parties | In re O.M. |
| Court | Vermont Supreme Court |
Original Jurisdiction
Board of Bar Examiners
In the above-entitled cause, the Clerk will enter:
¶ 1. In this expedited appeal, applicant challenges the Board of Bar Examiners' denial of his request for testing accommodations for the February 2023 Vermont Bar Exam. Given the expedited nature of the appeal, we issued an entry order on February 16, 2023, that contained our mandate only. We held that the Board acted within its discretion in denying applicant's request. We now address appellant's arguments.[*]
¶ 2. The record indicates the following. Applicant is a third-year law student. In late November 2022, he sought permission to take the bar exam early, which was granted. See generally V.R.A.B. 9 (). Applicant also requested testing accommodations-specifically, time-and-a-half in which to take the exam-due to a disability. See V.R.A.B. 28 (); see also General Instructions for Requesting Test Accommodations for Vermont Bar Examination (Nov. 2020) [hereinafter General Instructions], at 1, available at https://www.vermontjudiciary.org/sites/default/ files/documents/900-00030.pdf [https://perma.cc/639H-JGHY] ( that "[a] qualified applicant with a disability who is otherwise eligible to take the bar examination, but who cannot demonstrate under standard testing conditions that he/she possesses the knowledge and skills to be admitted to the Vermont Bar, may request reasonable test accommodations"); 28 C.F.R. § 36.309(a) ().
¶ 3. The Board's stated policy is "to administer the bar examination . . . in accordance with the Americans with Disabilities Act [(ADA)], as amended." General Instructions, supra, at 1. This includes providing "additional testing time and other accommodations when necessary to ameliorate the impact of the applicant's disability on the applicant's ability to take the bar examination." Id.; see also 28 C.F.R. § 36.309(b)(2) (). Applicants requesting accommodations "must submit documentation from one or more qualified professionals that provides information on the diagnosed impairment(s), the applicant's current level of impairment, and the rationale for the accommodations requested on the bar examination," as well as "verifying documentation of his or her history of accommodations, if any." General Instructions supra, at 1. The instructions state that "[accommodations granted elsewhere do not necessarily entitle an applicant to accommodations on the bar examination, although the Board gives considerable weight to documentation relating to past accommodations received in similar testing situations or in response to an IEP [(Individualized Education Plan)] or Section 504 plan." Id.; see also 28 C.F.R. § 36.309(b)(1)(v) (providing that testing entity must, in considering accommodations request, "give[] considerable weight to documentation of past . . . accommodations . . . received in similar testing situations, as well as such . . . accommodations . . . provided in response to an Individualized Education Program (IEP)" or "Section 504 Plan"). The Board considers accommodation requests for the February Bar Exam timely if received by December 1, but the timeline can be extended for "extraordinary circumstances." General Instructions, supra, at 2; see also V.R.A.B. 9(c)(2)(B) (); V.R.A.B. 9(f) ().
¶ 4. The Board's instructions include various forms that must be submitted in support of a request for testing accommodations. This includes, as relevant here, "a comprehensive evaluation report from the qualified professional who conducted an individualized assessment of the applicant and is recommending accommodations on the bar examination on the basis of a psychological disability." General Instructions, supra, Form 5, at 1. As part of this form, the qualified professional must indicate their recommended testing accommodations and explain the basis for their recommendation. With respect to a request for extra time, the professional must explain "why extra testing time is necessary and describe how [they] arrived at the specific amount of extra time recommended." Id. at 5. Applicants must also provide verifying documentation of their prior accommodations history, if any. Id., Form 1, at 6. Applicants have the burden of establishing their "compliance with the Application process." V.R.A.B. 9(c).
¶ 5. On November 27, 2022, applicant requested testing accommodations using the Board's application form. He provided information related to his disability and explained why he had not filled out certain required Board forms in support of his request, including Form 5 referenced above. Applicant noted that his requested accommodation (time-and-a-half) was provided to him in high school, law school, and for purposes of taking the Law School Admissions Test (LSAT). The National Conference of Bar Examiners was also considering this same accommodation request for the Multistate Professional Responsibility Examination (MPRE). Applicant submitted a 2014 letter from a mental health professional stating that applicant had been diagnosed with Attention-Deficit/Hyperactivity Disorder (ADHD) and an anxiety disorder in 2011; a copy of his Section 504 Student Plan from high school; a letter from the Law School Admission Council identifying his testing accommodations for the LSAT; and information about the testing accommodations he received at law school. An associate dean of applicant's law school also completed a form concerning applicant's law school testing accommodations. This form reflected that applicant had documented diagnoses of ADHD and Generalized Anxiety Disorder (GAD), but it misstated the permanent accommodations that applicant received. Applicant also submitted a November 2020 email from a mental health professional at his university who stated that she had diagnosed applicant with GAD in September 2020 based on an "Assessment Interview." The counselor described the severity of the disorder as moderate and chronic though she noted that it was expected to improve with treatment. The counselor stated that applicant's symptoms impacted his ability to study and take exams. She noted that applicant had had testing accommodations since high school and that he had found time-and-a-half to be effective for him.
¶ 6. Applicant separately explained to the Board that he was unsure about which disability-related form he should complete because his diagnosis did not fit neatly into the forms. He explained that his 2014 evaluation formed the basis of his 504 plan and LSAT accommodations and he did not receive treatment related to the diagnoses because he had learned various coping skills and the accommodations he received helped him focus during examinations. Applicant recounted that in trying to complete the forms, he attempted to use his university's free counseling resources but his request was denied as he did not regularly use their services and they did not provide "one-off" evaluations for purposes of a form like that supplied by the Board. He stated that several other providers declined to complete the form for the same reason. Applicant asserted that it would be unduly burdensome for him to hire someone for the purpose of filling out the Board's form. He asked that the Board approve his requested accommodation based on the uniform accommodations he received in high school, law school, and on the LSAT.
¶ 7. In a January 4, 2023 email, Licensing Counsel told applicant that the Board had denied his accommodations request. As summarized by Licensing Counsel, the Board found that applicant had been diagnosed with anxiety based on one assessment interview without any systemic testing and he had not submitted documentation in support of a diagnosis of ADHD. It further found that applicant failed to tie these conditions to the need for the requested accommodations. It noted that although applicant was provided extra time in law school, that was based on a hand injury rather than anxiety or ADHD.
¶ 8. Applicant moved for reconsideration on January 24, 2023 and included additional materials in support of his request. He explained that his law school had erred in describing his accommodations-an error the school acknowledged-and applicant submitted a corrected statement. This document showed that in law school, applicant received a permanent accommodation of time-and-a-half for examinations due to his GAD diagnosis. Applicant also explained that he had been diagnosed in 2020 with...
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