Today's Offers:

News > Federal Court

Student with disability sues after failing law exam
7/25/2008 8:00 AM By Steve Korris  -Kanawha Bureau

CHARLESTON - West Virginia's Board of Law Examiners printed its examination in big type for Shannon Kelly last year, gave him a room to himself and allowed him an extra day to complete the test, and he blames them for his failure.

Kelly sued the examiners July 21 in U. S. District Court at Charleston, demanding four days to finish an exam that most law school graduates finish in two days.

"He has severe deficits in processing speed, cognitive fluency and rapid naming," wrote his attorney, Edward McDevitt of Bowles Rice McDavid Graff and Love in Charleston. "Petitioner will be forced to take an examination in a manner which denies him an equal opportunity to pass the examination as individuals without disabilities.

"With each day that passes, petitioner loses professional opportunities which he can never regain. If petitioner is not given the reasonable and necessary accommodations he has requested, then he will once again be unable to start work as an attorney.

"His ability to practice law is at stake, after he has invested enormous, time, money and energy to reach the threshold of the profession at the age of 32."

Kelly received a score of 253 last year, 17 points fewer than he needed to pass the exam.

He had asked for four days to take the exam, but the board had granted three.

McDevitt's complaint identifies Kelly as a resident of Lester in Raleigh County, though correspondence in the file shows his address in Orlando, Fla.

Kelly graduated from Concord University in Athens, W.Va., in 1997. He attended Thomas M. Cooley Law School in 2001 and transferred to Barry University School of Law in 2003.

At first he received time and a half for examinations, according to McDevitt, but on a psychologist's recommendation the school granted double time.

"His historical performance at law school clearly demonstrates that, when given double time as ordered by professionals following thorough evaluations of Shannon, petitioner performs quite capably," McDevitt wrote, noting that policies and actions of the law examiners don't meet requirements of the Americans with Disabilities Act.

"The board has made insubstantial efforts to elucidate the scope and meaning of the ADA only at the urging of the petitioner and this court," he wrote. "Indeed, petitioner is essentially paying for the education of the board as to the implications of the ADA."

Kelly sued the board and board members Lawrence Shultz of Martinsburg, Ancil Ramey of Charleston, Sue Ann Howard of Wheeling, Ward Stone Jr. of Morgantown, Bradley Pyles of Logan, Sarah Hall of Welch and John Cyrus of Huntington.

EMAIL A FRIEND | PRINT | DIGG THIS | POST TO DEL.ICIO.US

Comments on this article

  • Law student wit disabilities fails exam

    I feel for the fellow. But I also wonder how he will practice law. He succeeds in Law School by taking twice as much time, which is great. He claims that he can pass the bar if given twice as much time. What will he do when he practices law. Will he have to charge clients twice as much on an hourly basis to do their work? Will he have to ask courts to all delays twice as long? Should an employer pay him half as much since it will take him twice as long to perform some tasks? I wish him luck but would expect to see more suits from him in the future.

    by PJ

    url:

  • Law student with disabilities fails exam

    I have many of the same questions as previous commentator P.J. about this article. However, I also wonder what area of law Mr. Kelly plans to practice? Also, how does he plan on meeting time deadlines that have been in effect for all attorneys? I would think that he would be penalized considerably after awhile and this would probably then be passed on to any client he may have. It almost seems that he would have to become part of the corporate world or work for an agency. At age 32, he will be passed over I am sure by younger and quicker attorneys. I also, wish him luck but as P.J. commented "expect to see more suits from him in the future."

    by L Cecilia Cook

    url:

  • WHAT?!

    Frankly I hope they give him the 4 days and he fails again. I hope they give him 7 days. He'll still probably fail, considering where he went to school. I'm sorry, but if he has "severe deficits in processing speed, cognitive fluency and rapid naming," how in the world does he expect to practice law? Are we all going to have to stand around in court waiting for him to think about what he wants to say, and write it down so he can read it to us from a piece of paper? I have trouble thinking about what I can to say too, but I never went to a shrink and had them put a name on it so I could get special treatment. The only job he's going to be qualified for is some research hound in a law library of a large law firm (such as the one who represents him in this joke of a suit). He can do that without a law degree. Whose son is he anyway? There has to be a reason Bowles Rice is fighting for him to get a law degree, and I doubt it's that he's paid them $250 an hour to do it.

    by ARay

    url:

  • Again, what?

    I certainly don't see any bias here. Simply a number of people who question how someone who admits to having cognitive deficiencies expects to be able to keep up with those of us who don't. And you'll note that I said that I hope he DOES get extra time, because I think he'll still fail anyway. In other words, his "deficiencies" might not even be the problem - it's likely the quality of his edumacashun from ole' Barry U. Did you even read the part about WHY he needs the accommodation? Being blind (as you are) is NOT the same thing as having a cognitive deficiency. I can't believe you've made it through life without realizing that. I'm really not interested in posting my grades and bar scores here, nor is there a way to do so, Chief. I passed the bar the first time, and the first time in the other state where I'm admitted, and I got grades in law school that were a B average. I have no idea what I got on the bar exam. I passed. Now, what is the point in providing that info? I'm not allowed to comment on someone who ADMITS to being not as "with it" as others if my GPA wasn't high enough? Hooo-kay. I can express my opinion the same as you. If you think this guy should have a license, then why don't you hire him in Texas?

    by Aray

    url:

  • Billable?

    Pity the poor client that gets stuck being billed twice the hours if this character gets his JD.

    by wk

    url:

  • Law Student with disabilities fails exam

    He was given three days to pass the exam that all other students have to complete in two days. The exam was printed in large type just for him. When you factor this along with the fact that he graduated from law school that I've never heard of (Barry University?? - is it even ABA accredited?), my advice to him is to either study harder and take the exam again, or realize that not all people are meant to practice law. This probably seems cold to many, but the fact remains that this candidate has to understand that he's not going to extra days to complete work or additional days to try a case if he becomes a licensed lawyer. There is only so much accommodation, and it sounds like the Board has done all that it should. It's now up to him to pass the bar under those favorable conditions. Suing the Board because he didn't pass the bar is ridiculous. Our law licenses have to meet a certain standard, and they should not be devalued just because someone can't pass the bar even with accommodations.

    by Sam

    url:

  • Law student with disabilities fails exam

    The ability to complete a task within time constraints is part of what's being tested on the bar exam. If you question the validity of that constraint, perhaps there just shouldn't be a bar exam. We all know that, once you start to practice, it would be malpractice to answer any of the questions on the test off the top of your head, without doing research.

    by Janet

    url:

  • no way in hell i would hire him

    This is why the ADA should be abolished. There should not even be chance that a person such as this can become a lawyer if he cannot pass the bar under the same constraints as everyone else. If we are going to fake-pass him into being a lawyer, why not a doctor as well? The consequences be damned if it makes HIM feel better. People with disabilities are often not equal to the average person, that is why they demand all kinds of advantages. Giving him special treatment demeans the accomplishment of everyone who passes the test legitimately, and it puts unknowing potential clients at the risk of his inadequate abilities. The bar tests a minimum level of competence. Whether this guy cannot pass it because he is stupid or because he is disabled, the fact remains that he has not demonstrated an ability at this minimum level. People like Kelley make me not want to give any accommodation to any disabled person. Equality means everyone receives equal treatment.

    by joe

    url:

  • Puzzlement and Dismay

    I am shocked at how lawyers commenting about this law school graduate’s inability to pass his bar exam, demonstrate such a clear level of prejudice and misguided “club members only” attitude toward our profession. I am simply puzzled at the persistence of narrow-minded, misguided, and conceited views that many lawyers making these negative and unproductive comments are so ready and willing to publicize. Indeed, have they forgotten how most lawyers only expect to pass the exam with an average score due to the exam’s truly difficult nature? Have they forgotten how statistics indicate that most law graduates barely pass their bar exams? And, who can forget how many of us struggled with grades in law school? Gee, I would challenge any attorney making comments to post their bar exam score and grade transcripts next to their law degree on the wall! Oh, and also, who guarantees that passing a bar exam and having a license to practice law guarantees the abilities of any attorney to behave in an unbiased and ethical manner—to say nothing about professional competence in their chosen area of practice? The board of examiners certainly does not! Clearly, most posted views on this topic fail to appreciate the functional limitations that people with disabilities facing such exams must contend with on a daily basis. These are functional limitations that have nothing to do with a specific set of knowledge or skills. The bar exam of any state represents a unique challenge to anyone who has ever taken a licensing examination. But the danger of taking such exams by people with disabilities who dare to meet the challenge, is that the exam could end up measuring the extent of their disability and not their ability to practice law. On the matter of questioning the competence of lawyers who have disabilities, I am surprised at how clearly these posted views indicate the level of personal bias and prejudice that nondisabled lawyers continue to embrace. Yet, this is a two way avenue. As an HR consultant in ADA and labor law, I am made aware of how many licensed attorneys so readily dismiss or hush clients with disabilities when the client is unable to communicate effectively due to a hearing, speech, sight, learning, or cognitive disability. The comments about this article basically lends credence to the many stories I hear about lawyers who forget their professional and ethical obligations in exchange for the quick fee or easy client. I can hardly count the number of cases involving unethical attorneys who drop their clients midstream due to heir client’s disability or disability-related inability to comprehend a difficult issue. The Justice Department has consistently demonstrated through its published Settlement Agreements, how attorneys fail to reasonably accommodate a client who may demand more time because of a disability. I challenge anyone to identify how many attorneys who have disabilities have been sued for malpractice. Thus, before questioning the future lawyering abilities of law school graduates with disabilities, perhaps we should question our own histories in the same mirror? The board of examiners fear that their exam may in some way be compromised when having to provide additional testing time. Or, in ADA language, that the exam taker’s request for reasonable accommodation may impose an undue burden on board operations, or cause a fundamental alteration to the exam. But this is simply misguided and uninformed based on the number of complaints against examining boards. Research clearly indicates how willing licensing examiners in almost every profession are quick to arbitrarily modify an individual’s request--simply because 4 days is too long. Or, simply because they, themselves, did it in two days. Indeed, their view is, why should this person get more time than I did. After all, I passed in two days? Surely, a person with a disability has the ability to pass like anyone else? It must be true, that since they are unable to pass their exams despite having received reasonable accommodations, that they are simply not worthy of “membership” in the industry. Indeed, it is strange then, how such individuals managed to graduate from law school successfully? After all, as we lawyers know, grades in law school come easily? For what it’s worth to this audience of lawyers, the board’s obligation under the ADA is to consider requests for reasonable accommodations and, on an individual basis, determine whether the requested time adjustments or auxiliary aids and services are related to the test-taker’s disability-related functional limitations. No doubt, one issue in this case will likely be that the board might have failed in this capacity. A recurring problem is that schools and examiners will simply pool a history of disability-related requests from individual test takers and use recurring accommodations to provide same for new applicants with same or similar disabilities. That is, since an applicant is blind, and the board had previously provided twice the amount of standard testing time to a previous blind applicant, then the new blind test-taker should therefore receive twice the amount of time. Wrong! Why? Because the public accommodation failed to make a determination based on that individual’s specific needs. Where one blind exam taker might prefer to use audio materials to take her exam, another might prefer to have the exam read to him by a live person. Similarly, where a person who has an attention deficit disorder might prefer a quiet room without distractions but no extra time, another ADD exam taker might actually necessitate extra time and a time keeper to help with concentration and focus. Moreover, the board of examiners have to attempt to comprehend the logistical and physical strain that comes with taking such a complex examination with adaptive devices, live readers, or even the extended time. I doubt that anyone would want to sit through an examination for 4 days while reading with a hand-held magnifier! Hence, the role of the ADA and board of examiners is to make certain that such an exam is testing for the substance of the examination, and not the extent of the individual’s disability. I therefore find most comments about this young man as unkind and offensive, but also an insult to the intelligence of any lawyer who strives to be ethical, professional, and competent. Regarding people with disabilities, not completing a bar exam is generally the reason for non-passing scores—but not because an individual was unable to handle the material on an exam. And, notice how this can be true of any exam taker—not only those who have disabilities. How does completion of such an exam within a limited amount of time certify that such individual will be competent in his profession? How does arbitrarily modifying a person’s specific accommodation request make the board’s action consistent with ADA obligations? Indeed, comments such as the ones found posted here, again, lend credence to an already well established notion that the licensed legal professional industry is highly discriminatory and unwilling to promote a diverse population of lawyers. (These are strictly my views and not those of anyone I associate with or work for.) Diego Demaya, J.D. Houston, Texas

    by Diego Demaya

    url:

SEND US YOUR COMMENTS ON THIS ARTICLE:

* - Required fields

Subject: *
Message: *
Contact Name: *
Contact URL:
Contact Email: *
This Is CAPTCHA Image
Write the characters in the image above: