The State Bar seeks public comment on proposed rule changes addressing the process for seeking and obtaining testing accommodations for the California Bar Exam or the First-Year Law Students’ Exam.
Deadline: July 31, 2023, at 11:59 p.m.
Comments should be submitted using the online Public Comment Form. The online form allows you to input your comments directly and can also be used to upload your comment letter and/or other attachments.
Testing accommodations are provided to ensure that an applicant who has a disability or disabilities can access the exam and is afforded an equal opportunity to obtain the same result, gain the same benefit, or reach the same level of achievement as that provided to others. The State Bar is revising the rules and process for handling requests for testing accommodations for the California Bar Exam, First-Year Law Students’ Exam, and Legal Specialist Exam. This rewrite, shaped by public comments, incorporates into the rules key elements formerly contained in a separate document, which had been referred to as “the framework.” This includes language expressly limiting documentation to that which is limited, reasonable, and narrowly tailored, as well as language providing deference to the applicant’s qualified professional. Language in the rules has been simplified, and definitions aligned with Title II of the Americans with Disabilities Act have been added for clarity. Additionally, the process for automatically approving prior testing accommodations on other high-stakes exams and considering those from educational settings has been significantly altered.
Comments are sought on the revised version of the testing accommodations rules 4.80 through 4.92. The key issues addressed by the revised rules proposal (all of which were revised in response to the public comment received) center around the topics described below.
Automatic approval of accommodations previously granted for high-stakes exams: The proposed rules allow automatic approval for the same (or lesser) accommodations as those previously granted for high-stakes exams based on a permanent physical or mental disability. High-stakes exams include the California Bar Exam, First-Year Law Students’ Exam, a bar exam in another U.S. jurisdiction, and various standardized tests. The new proposal removes the requirement that prior accommodations be approved within the last five years. Applicants only need to provide proof of the prior accommodation and certify that they still experience the same functional limitations. This change aims to streamline application processing and significantly reduce approval time.
If the prior accommodations include more than 50 percent extra time, more than 100 percent extra time for severe visual impairments, or a private room, applicants must explain why they need those additional accommodations to access the exam on an equal basis as others. (See Rules 4.83 and 4.85.)
Accommodations granted in law school or college: The proposed rules were revised to incorporate language from the consent decree reached in The Department of Fair Employment and Housing v. Law School Admission Council (LSAC Consent Decree), which ensures that when evaluating requests for testing accommodations, the State Bar will give considerable weight to past testing accommodations provided for timed exams in college or law school. The Committee of Bar Examiners did not recommend automatically approving such accommodations because it is challenging to ensure consistency and rigor across all institutions evaluating testing accommodation requests. Therefore, applicants who haven’t received testing accommodations for a high-stakes exam but have in college or law school must provide limited, reasonable, and specific documentation to establish their need for accommodations. (See Rule 4.82.)
Documentation: The proposed rules now include language from the framework specifying that the State Bar will defer to documentation from a qualified professional who has made an individualized assessment of the applicant. The applicant and their qualified professional are given flexibility in providing supporting documentation for disability-related functional limitations, access needs, and requested testing accommodations. To expedite the processing of testing accommodation requests, applicants without automatic approval based on prior testing accommodations must have their chosen qualified professional respond to specific questions on the State Bar’s forms. This streamlined form clarifies the information needed for approval of testing accommodations. (See Rule 4.82.)
Timelines for processing initial requests: The proposed rules state that the State Bar will promptly evaluate all complete requests received by the deadline and will aim to complete the evaluation as far in advance of the exam as practicable. Under the new procedures, staff anticipates being able to process the majority of requests, especially those requesting the same accommodations approved for prior high-stakes exams, and those with a long history of testing accommodations in an academic setting, more expeditiously than under the current process. At the outer limits, the State Bar will notify the applicant within 30 days of receipt of the request if the request is incomplete. The applicant will be notified within 60 days after submitting a complete application if the request is approved, partially approved, denied, or action is pending. The State Bar will issue more specific timelines to staff along with the new rules, differentiating between requests eligible for automatic approval and those needing individual review. These will be posted on the State Bar website. Once the rules have been implemented for two bar exam cycles, the timelines will be brought back to the Committee of Bar Examiners for further consideration. (See Rules 4.82, 4.84, 4.86.)
Denial only permissible after evaluation of initial request by disability accommodations expert: The proposed rules require that before denying any testing accommodation requests, they must be reviewed by a disability accommodations expert. A denial or approval of reduced accommodations must include a detailed report from this expert, explaining the reasons for such decisions to ensure the applicant has fair notice of the State Bar’s reasoning. The notice must also inform the applicant of their right to request a review. (See Rule 4.86. See also Rule 4.88.)
Appeal/review process: In an earlier version of the rule proposal, the State Bar proposed having a disability accommodations expert make decisions on review, previously called appeals, instead of the Committee of Bar Examiners. This proposal was aimed at streamlining the process and ensuring unbiased, consistent handling of testing accommodations reviews. However, after public feedback, the rules revert the review process back to review by the committee. Additionally, the proposed rules extend the deadline from 10 days to 14 days unless exam scheduling necessitates a shorter period. The State Bar shall continue its practice of offering extra time, upon request, to submit the documentation to support the request for review, but not beyond the appeal deadline, which is the first business day of the exam month. Applicants can request a review only once per exam cycle to ensure fairness and proper resource allocation, but may reapply in future exam cycles. Due to the volume of requests, allowing multiple opportunities to request review during the same exam cycle creates an unfair situation for applicants who are able to apply early and request review many times and could result in limited resources being assigned disproportionally to a few applicants while other applicants who have to apply closer to the testing accommodation application deadline have not had the opportunity to receive a timely decision on their initial request and/or their request for review. (See Rule 4.88.)
Staff believes that the adoption of the automatic approval process, in conjunction with the new forms and updated information to applicants and qualified professionals, will result in the ability to process requests more expeditiously. Having final determinations in place with more time before the administration of the exam should result in fewer instances of confusion at the exam site as to the accommodations for which applicants have been improved. Staff, at this time, is unable to estimate the impact these changes will have on the number of accommodations provided and the resources needed to implement those accommodations, but will keep the Board informed as experience is gained with handling testing accommodation requests consistent with the proposed amended rules.
Board of Trustees
July 31, 2023, at 11:59 p.m.