Varad v. Barshak, CIV.A.2002-11311-RB.

• Decision Date: 15 May 2003
• Docket Number: No. CIV.A.2002-11311-RB.,CIV.A.2002-11311-RB.
• Citation: 261 F.Supp.2d 47
• Parties: Christine M. VARAD, Plaintiff, v. Edward J. BARSHAK, as Chairman of the Massachusetts Board of Bar Examiners, Defendant.
• Court: U.S. District Court — District of Massachusetts

261 F.Supp.2d 47

Christine M. VARAD, Plaintiff, v. Edward J. BARSHAK, as Chairman of the Massachusetts Board of Bar Examiners, Defendant.

No. CIV.A.2002-11311-RB.¹

United States District Court, D. Massachusetts.

May 15, 2003.

Christine M. Varad, Scituate, MA, Pro se.

Maite A. Parsi, Attorney General's Office, Boston, MA, for Defendant.

MEMORANDUM AND ORDER ON MOTION BY EDWARD J. BARSHAK FOR SUMMARY JUDGMENT (#24)

COLLINGS, United States Magistrate Judge.

I. Introduction

On July 1, 2002, pro se plaintiff Christine M. Varad ("Varad" or "the plaintiff) filed a complaint naming as the sole defendant Edward J. Barshak ("Barshak") in his capacity as the Chairman of the Massachusetts Board of Bar Examiners. The plaintiff claims to be a qualified person with a disability within the meaning of the Americans with Disabilities Act of 1990 ("ADA") and that, as such, she was entitled to certain accommodations with respect to the essay portion of the February 2002 Massachusetts Bar Examination. Varad contends that the defendant's failure to afford her such accommodations based upon her oral request made in January, 2002, constituted violations of the ADA, Article 114 of the Articles of Amendment to the Massachusetts Constitution, and Massachusetts General Laws chapter 93 § 103.

Barshak filed a motion for summary judgment (# 22) and a memorandum in support (# 24) thereof in mid-January, 2003, seeking the entry of judgment as a matter of law on all of the plaintiffs claims. On January 31, 2003, Varad timely submitted a memorandum in opposition (# 25) to the dispositive motion. Oral argument on the summary judgment motion was heard on February 24, 2003, and the matter was taken under advisement. With the record now complete, the motion for summary judgment is poised for resolution.

II. The Facts

Unless otherwise noted, the recited facts are not the subject of dispute. Varad is a 2001 graduate of New England School of Law. (#25, Exh. B ¶ 2) In July of 2001 and February of 2002 she took the examination for admission to the bar of the Commonwealth of Massachusetts; she failed both exams. (# 25, Exh. B ¶¶ 7, 18, 26)

The Board of Bar Examiners ("BBE") is the entity in the Commonwealth responsible for the administration of the bar examination and for "reporting to the Supreme Judicial Court the character, aquirements and qualifications of those petitioning for admission to the Bar." (# 24, Exh. A ¶ 5) The Massachusetts bar examination is administered over a two day period. On the first day, the Multistate Bar Examination ("MBE") consisting of 200 multiple choice questions is given. The second portion of the exam on day two is "ten questions based on statements of facts, each calling for an `essay' type answer." (# 24, Exh. A ¶¶ 12-13)

The BBE provides information and application materials to bar applicants. The application materials for the July 2001 bar examination included a document entitled "Notice and Information Regarding the Next Bar Examination, July 2001 Examination." (# 24, Exh. A ¶ 6 and Exh. A-2) This document supplied information regarding, among other things, the place and time of the examination, the filing of completed applications, and eligibility requirements for taking the bar examination. (#24, Exh. A ¶ 10 and Exh. A-2) Also included was a section entitled "SPECIAL ACCOMMODATIONS" which read as follows:

All requests for taking the Massachusetts Bar Examination under non-standard conditions must be in writing and submitted to the Board of Bar Examiner, 77 Franklin St., Boston, MA 02110. Upon receipt of written request, the Board will issue to the applicant Special Accommodation Petition forms. These forms must be completed by the applicant and professionals to provide details and documentation relating to a disability and shall be returned to the Board 75 days prior to the date of the examination (May 14, 2001). Written requests to type the essay portion of the examination will be permitted to persons with disabilities and then to others if seating is available. DO NOT SEND SPECIAL ACCOMODATIONS (sic) OR SPECIAL ACCOMODATIONS (sic) FORMS TO THE COURT.

Memorandum In Support # 24, Exh. A at Exh. A-2 (emphasis in original). It is uncontested that the plaintiff received this information along with the application form and instructions for first time applicants. (# 24, Exh. A ¶¶ 7-8, 10 and Exh. A-2) While Varad properly completed and filed all of the appropriate forms to sit for the July 2001 bar examination, she did not submit a written request or fill out a Special Accommodation Petition form. (# 24, Exh. A ¶ 11)

Some three weeks prior to the bar examination the BBE sent all applicants a document entitled "Suggestions on Writing the Essay Examination" which document was also "included in the packet given to test takers at the time of the [examination." (# 24, Exh. A ¶ 16 and Exh. A-4) In addition to suggesting tips on how to formulate and draft answers for the essay portion of the bar exam, this document also explained that "the purpose of the bar examination is to test your ability to think and express yourself as a lawyer." (# 24, Exh. A ¶ 16 and Exh. A-4) The document further reads:

The Board presumes that you have completed your law studies, under competent instructors, and have passed examinations given by them. It does not challenge the results of your law school course. It is testing your ability to apply what you have already learned to the facts of the problems such as those which might arise in your practice, and which, in some instances, involve more than one field of law. The value of an answer depends not only upon your conclusions, but even more upon the evidence it displays of the elements mentioned above.

Memorandum In Support # 24, Exh. A and Exh. A-4.

The plaintiff took the two day bar examination in July, 2001, and completed the entire examination. (# 24, Exh. A ¶ 18) In a form letter dated November 2001, Barshak informed Varad that she "did not obtain a total combined scaled score of 270.00 or greater, the passing score, on the July 25-26, 2001 Massachusetts law examination." (# 24, Exh. A ¶ 18 and Exh. A-5) In response, by letter dated November 3, 2001, the plaintiff requested that the BBE sent her copies of her essay answers and also inquired as to the existence of "any designated mechanism by which essay results may be challenged." (# 24, Exh. A ¶ 19 and Exh. A-6)

In a November 5, 2001 letter the Executive Director of the BBE, Elaine Vietri (hereinafter "Vietri"), advised Varad that "[t]he Board of Bar Examiners has reviewed our calculations of your scores and found them to be accurate and complete, all ten essays were graded and included in the calculated essay score." (# 24, Exh. A ¶ 20 and Exh. A-7) The letter further stated that "the Rules of the Board of Bar Examiners do not allow for a rereading of [plaintiffs] essay answers of the July 2001 bar examination" because Varad's total sealed score was "below the 265 necessary for a reread." (# 24, Exh. A ¶ 20 and Exh. A-7)(emphasis in original)

In due course the plaintiff applied to take the February 2002 examination for admission to the bar of the Commonwealth of Massachusetts. (# 24, Exh. A ¶ 21 and Exh. A-9) The reapplication packet included information similar to that sent with respect to the July 2001 bar exam, including a section entitled "nonstandard testing" delineating the procedures for requesting a special accommodation.² (#24, Exh. A ¶ 22 and Exh. A-10) Specifically the pertinent parts of this section read:

If you have a disability that will require special assistance or accommodations on the bar examination and have not previously been granted accommodations, you must complete and file the Special Accommodations Petition forms.... The applicant and professionals must complete these forms to provide the Board with details and documentation relating to the disability. The Special Accommodations Petition shall be returned to the Board no later than 75 days prior to the date of examination (December 17, 2001)...

Memorandum In Support #24, Exh. A ¶ 22 and Exh. A-10 (emphasis in original). The plaintiff did not request any accommodations by December 17, 2001 or file a special accommodations petition with reference to the February 2002 examination. (#24 ¶ 23)

On January 18, 2002, Varad spoke with Vietri at the BBE by telephone and requested an accommodation for a handwriting disability.³ (# 25, Exh. B ¶ 9) According to the plaintiff, her request was denied. (# 25, Exh. B ¶ 10) She consequently took the February 2002 examination without any accommodations and wrote out all responses to the ten essay questions. (# 24, Exh. A ¶ 25 and Exh. A-25)

The BBE informed the plaintiff in May of 2002 that she had not attained the required passing score on the February examination. (# 24, Exh. A ¶ 26 and Exh. 13) In a letter dated May 2, 2002, the plaintiff wrote to Chief Justice Margaret Marshall of the Massachusetts Supreme Judicial Court ("SJC") seeking a hearing pursuant to S.J.Ct. Rule 3:01 § 5.3 with regard to her bar admission. (# 24, Exh. A ¶ 27 and Exh. A-14⁴) In a May 8, 2002 letter Varad informed the BBE that she had petitioned the SJC for "judicial review of the validity of the Board's actions in regard to its assessments of my acquirements and qualifications for admission as an attorney and to review the appropriateness of the Board's failure to provide accommodations for me as a test-taker on the essay portion of the Bar examination." (# 24, Exh. A ¶ 31 and Exh. A-16)

The plaintiffs May 2nd letter was referred by Chief Justice Marshall to the Deputy Administrative Assistant of the SJC, Robert S. Bloom (hereinafter "Bloom"). (# 24, Exh. A ¶ 28) In a letter dated May 9, 2002, Bloom replied to Varad that "[t]he court does not consider granting such hearings in cases where the applicant has not exhausted his or her remedies with the [BBE]. In your case, there is no indication in your letter that you made any...