Benjamin Kohn is a law school graduate who registered to take the October 2020 sitting of the California Bar Examination.

He suffers from and has been diagnosed with several physical and psychological conditions including autism and neurological/attention disorders, digestive system conditions (gastroparesis, postoperative dysphagia, pelvic floor dyssynergia, and irritable bowel syndrome with chronic constipation), and visual impairments (keratoconus, dry eye syndrome, uncorrectable astigmatism, floaters).

Because of his conditions, Kohn has been granted several accommodations on past exams administered at various levels and by various institutions.

Kohn has previously taken the California Bar Exam in July 2018, February 2019, and February 2020 and for each exam he was granted some testing accommodations but denied others. Examples of denied accommodations included: 150% extra time on the written portion of the exam, a cap of no more testing time per day than non-disabled test takers, ergonomic/physical equipment supplied in the exam room, specialized disability proctors, and 30 minutes of break time per 90 minutes of testing.

On March 19, 2020, Kohn submitted a petition for testing accommodations for the October 2020 exam. In his petition, he sought all accommodations that the Committee previously granted on his prior attempts at the California Bar Exam, as well as accommodations that were previously denied.

On August 27, 2020, the Committee granted some of his requests, but denied requests for administration of the exam over weekend days only, testing in a private room, pre-scheduled breaks to be taken instead at Kohn’s discretion, a complete ergonomic workstation provided by the Committee, a hotel room for Kohn provided by the Committee, and assignment to an experienced proctor.

Kohn filed a complaint in the Federal District Court alleging seven violations of the Americans with Disabilities Act (“ADA”) and seven corresponding violations of California’s Unruh Act, Cal. Civ. Code § 51(f). Dkt. The same day, he filed a motion for preliminary injunction, which the court denied on August 13, 2020, finding that plaintiff’s motion was not ripe for adjudication.

Kohn then filed a first amended complaint with fifteen claims: (1) violation of ADA related to the February 2019 Bar Exam; (2) violation of the ADA for deliberate indifference related to the February 2019 Bar Exam; (3) violation of the ADA related to the February 2020 Bar Exam; (4) violation of the ADA related to the October 2020 Bar Exam; (5) – (7) violations of the ADA and California Government Code §§ 11135 et seq. & 12944 et seq. for deliberate indifference for each of plaintiff’s past three exams; (8) – (14) violations of the Unruh Act, Cal. Civ. Code § 51(f) for each ADA violation; (15) violation of the ADA for failure to provide reasonable accommodations for the October 2020 Exam and defendants’ deliberate indifference.

Defendants moved to dismiss the First Amended Complaint in its entirety pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The trial court dismissed the case of Kohn v State Bar of California -4:20-cv-04827-PJH (July 2020)

Defendants’ first argument was dispositive of the First through Seventh & Fifteenth Claims (ADA). The Eleventh Amendment provides: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. Accordingly, no state or its agencies may be sued in federal court without consent. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). This immunity extends to defendants, which are state agencies. Hirsh v. Justices of Supreme Ct. of State of Cal., 67 F.3d 708, 715 (9th Cir. 1995) (per curiam) (“The Eleventh Amendment’s grant of sovereign immunity bars monetary relief from state agencies such as California’s Bar Association and Bar Court.“

Plaintiff’s fifth through seventh claims also allege that defendants acted with deliberate indifference in violation of California Government Code § 11135 et seq. and § 12944 et seq. Defendants argue that the State Bar Act, Cal. Bus. & Prof. Code § 6001, exempts the State Bar from the requirements of Division 3 of Title 2 of the California Government Code.

California Business and Professions Code § 6001 states in relevant part: “No law of this state restricting, or prescribing a mode of procedure for the exercise of powers of state public bodies or state agencies, or classes thereof, including, but not by way of limitation, the provisions contained in Division 3 (commencing with Section 11000) … of Title 2 of the Government Code, shall be applicable to the State Bar, unless the Legislature expressly so declares.” Thus the District Court dismissed these causes of action with prejudice as well.

Plaintiff’s eighth through fourteenth claims are for violations of the Unruh Act, Cal. Civ. Code § 51(f). Plaintiff alleges that each predicate violation of the ADA is also a violation of the Unruh Act. Id. Defendants contend that plaintiff’s Unruh Act claims fail because plaintiff has failed to plead compliance with the California Government Claims Act and the State Bar is not subject to claims attempting to incorporate alleged Title II ADA violations into the Unruh Act.

In dismissing these cause of actions the court concluded that “Because plaintiff fails to state a claim for violation of the ADA, it follows that he cannot state a claim for violation of section 51(f). Plaintiff’s claim also fails because the Unruh Act only applies to “business establishments,” Cal. Civ. Code § 51(b), and California courts have held that government entities are not “business establishments” and not subject to the Unruh Act, see, e.g.,

In November 2020 Kohn appealed this case to the 9th Circuit Court of Appeal. The case was briefed by the parties and Amicus. In November 2022 in accordance with Federal Rule of Appellate Procedure 44 and 28 U.S.C. § 2403(b), the Court of Appeals certified to the United States Attorney General a constitutional challenge to a federal statute raised in a pending appeal in which the United States is not a party. The case was argued (video recording) in San Francisco and submitted on February 15, 2023. However, on 5/9/2023 a judge of this court called for a vote to determine whether this case should be heard en banc.

On July 21, 2023 upon the vote of a majority of nonrecused active judges, it was ordered that this case be heard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3. Judge Koh did not participate in the deliberations or vote in this case. En banc oral argument will take place during the week of September 18, 2023, in San Francisco, California. The date and time will be determined by separate order.