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  • 2023 Public Comment
Seal of The State Bar of California The State Bar of California

Proposed Amendments to the Rules of the State Bar Pertaining to Testing Accommodations

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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: January 31, 2023

Direct comments to

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.

Background

Applicants with disabilities may submit a request for testing accommodations to take the California Bar Exam or the First-Year Law Students’ Exam. A request is granted when the applicant demonstrates they have a disability or disabilities that prevent them from taking an examination under standard testing conditions; the testing accommodation(s) requested are necessary to address the functional limitations related to their disability or disabilities, and the testing accommodations requested are reasonable and appropriate in light of their disability or disabilities (Rule 4.80(C)).

The State Bar is revising its rules, processes, and procedures to ensure equal access to the exams, create a consistent and transparent process, and design a streamlined process that seeks to limit applicants’ need to secure additional documentation or medical evaluation. The process relies heavily on proof of past testing accommodations on high stakes exams, and where additional documentation is necessary, limiting it to that which is reasonable and narrowly tailored to determine the applicant’s need for the requested testing accommodations.

Discussion/proposal

The proposed amendments to State Bar rules is part of a comprehensive set of changes to the process for requesting and approving testing accommodations. The changes are reflected in the new framework or guidelines, these rules, and the newly developed forms for requesting accommodations and submitting documentation of a qualified professional, when required. The State Bar framework for handling testing accommodations was guided heavily by the Consent Decree arising out of The Department of Fair Employment and Housing v. Law School Admission Council litigation (LSAC Consent Decree) and the guidelines issued by the US Department of Justice (DOJ guidelines).

Streamlined approval process/Five-year timeframe:  Building on the framework, the proposed rules streamline an approval process for applicants requesting the same or equivalent testing accommodations as approved within the past five years by another testing entity when the request is accompanied by a copy of the notice of approved accommodations and certification by the applicant that they are still experiencing the same functional limitations. Public comments were made questioning the appropriateness of the five-year time limitation. 

Although the LSAC Consent Decree does not contain a similar limitation, it does authorize the LSAC to require that medical testing used to support a testing accommodation request based on a mental or cognitive impairment have occurred within the past five years. That requirement appears to support the proposal to limit prior approvals of testing accommodations only to those that date back to no more than five years prior. We are specifically interested in public comments on this issue, and encourage submission of alternative evidenced-based recommendations. 

Documentation: The rule revisions ensure that applicants are only required to submit documentation that is reasonable, limited, and narrowly tailored to the information needed to determine an applicant’s disability-related functional limitations, their specific access needs, and how those needs relate to the testing accommodations requested. Based on public comments received previously, staff borrowed language from the DOJ guidelines and revised the framework to provide that “the State Bar shall defer to documentation from a qualified professional who has made an individualized assessment of the candidate that supports the need for the requested testing accommodation(s)” and “where the State Bar finds that the documentation does not support the need for the requested accommodation(s), the State Bar shall supply an explanation.”

Evaluation: The enhanced testing accommodations process includes the use of a disability accommodations expert to evaluate requests for accommodations, as well as a disability accommodations expert to handle requests for review. When requests for testing accommodations are denied or approved with modifications, the proposed rules provide that the recommendation will be accompanied by the report from the disability accommodations expert, in lieu of the excerpts currently provided. This applies to the initial evaluation as well as the requests for review. The proposed review process shall be de novo and shall be conducted by a different accommodations' expert than the initial reviewer.

This amendment will help ensure adequate time for processing and consideration prior to the examination by an expert that is specifically trained and practicing in this field. The proposed rules also clarify that the decision issued after the request for review shall be final, and there is no further opportunity to request State Bar review of the request. This change eliminates the committee’s role as the reviewing body in exchange for a quicker review process by a testing accommodations expert. The rules, however, do set forth an ongoing oversight role for the committee. 

These rules were recommended for circulation by the Committee of Bar Examiners and approved for circulation by the Board of Trustees. When presented to the Board, this rule proposal was packaged with changes to other rules regarding Admissions. This request is only seeking input on the Rules of the State Bar that relate to Testing Accommodations. The other rule changes are circulating separately.

Any fiscal/personnel impact

None

Background material

For the agenda item comprehensively describing the revisions to the Testing Accommodations rules and related rule changes, please see: CBE Action on Revisions to the Testing Accommodations Rules; Recommendation to Circulate for Public Comment

Attachment O-202. Attachments A-E.

A. Proposed Amendments to Title 4, Division 1, Chapter 7 of the Rules of the State Bar (Redline) 

B. Proposed Amendments to Title 4, Division 1, Chapter 7 of the Rules of the State Bar (Clean Version)

C. Testing Accommodations Framework

D. Testing Accommodations Request Form

E. Qualified Professional Certification Form

(These are the rule changes for which public comment is sought. The language relating to committee oversight in rule 4.93 was modified by vote of the committee; the language contained in the below agenda item reflects that modification.)

This item was approved by the Board of Trustees for circulation for public comment as part of a package of several rules proposals which are each being circulated separately. That more condensed description of the testing accommodations rule proposal is available here:

BOT November 17–18 Agenda item 706 – Proposed Amendments to Admissions Rules Related to Testing Accommodations, Moral Character, Law Office Study, and the Practical Training of Law Students Program: Request to Circulate for Public Comment

Source

On October 14, the Committee of Bar Examiners recommended the rules be circulated for public comment. 

On November 17, the Board of Trustees approved circulating the rules. 

Deadline

January 31, 2023

Direct comments to

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.

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