A Harvard Law graduate who failed the New York bar exam twice, lost her Biglaw job because of it, and filed a disability bias suit against the state’s Board of Law Examiners has now had that suit tossed out — and you might be able to guess why if you’re deep into studying for the bar exam right now.
First, we’ll provide some background. If you recall, back in 2016, the plaintiff in this case, now identified as T.W., sued the New York BOLE, alleging that she’d been denied testing accommodations on the bar exam that she’d received while in law school. It was because of this denial, she claimed, that she failed the bar exam twice in a row, which led to her losing her job at Ropes & Gray. “Once you are in a big, white-shoe law firm and you’re forced to leave, you are out of sync,” her lawyer said at the time. “The likelihood of getting another job at a big firm is slim to none. This has really derailed her career.” T.W. passed the exam on her third try, but a career in Biglaw had already passed her by.
So, why was this lawyer’s bar exam suit banished from court? According to Judge Raymond J. Dearie of the Eastern District of New York, the BOLE is like an arm of the state, and that means it’s entitled to sovereign immunity against ADA claims like the plaintiff in this case had levied.
On top of Dearie booting T.W.’s last remaining cause of action — the Second Circuit kicked another one of her claims in 2021 — he went ahead and denied her the injunctive relief she sought to stop the BOLE from reporting her past exam results. An expungement, he noted, would simply not undo what had already been done. The ABA Journal has the money quote from the judge:
“T.W. submits that she faces continuing injury because the record of her bar examination failures has hindered her job search and career prospects,” Dearie wrote. “But T.W. never alleges that a prospective employer has inquired about her bar examination record, much less made a hiring decision based on that record. Instead, she alleges that law firms have learned ‘that she did not have the opportunity to gain the experience they seek from a 2013 graduate due to the disruptions caused by her bar examination failure.’ … The court cannot rewrite history; expungement will neither alter T.W.’s level of experience nor undo the fact that she did not successfully pass the bar until 2015. Moreover, the injunctive relief T.W. requests would suppress a record that, according to the board, it is prohibited from disclosing to employers.”
T.W. may have spent the last few years of her life litigating against the New York BOLE and ended up with a loss, but it wasn’t exactly all for naught. At least future bar exam candidates in the state will know just how difficult it is to sue the bar examiners. That’s not what she was hoping for, but it’s something.
Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.