Oliver v. Virginia Board of Bar Examiners

Filing 47

MEMORANDUM OPINION. See Opinion for details. Signed by District Judge Henry E. Hudson on 4/26/2018. (sbea, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

DONSHURL. OLIVER,
Plaintiff,
Civil Action No. 3:17CV492-HEH

V.

VIRGINIA BOARD OF BAR

EXAMINERS, et aL,
Defendants.
MEMORANDUM OPINION

(Granting Defendants' Motion to Dismiss)

Donshur L. Oliver ("Plaintiff) brings this action against the Virginia Board of Bar

Examiners ("Board") and Catherine Crooks Hill* (collectively, "Defendants"), seeking
declaratory relief, injunctive relief, andcompensatory damages for the Board's alleged
discrimination in its administration of the Virginia Bar Examination. Specifically,

Plaintiff claims that the Board did not properly accommodate his disability, in violation
of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 1201, e/ seq., as amended,

the Rehabilitation Act, 29 U.S.C. §§ 794, et seq, and the Fourteenth Amendment to the
United States Constitution. The matter is presently before the Court on Defendants'
Motion to Dismiss Plaintiffs Amended Complaint pursuant to Rules 12(b)(1) and
12(b)(6) of the Federal Rules of Civil Procedure (ECF No. 17). The parties have

thoroughly briefed the underlying issues, and the Court heard oral argument on the

' Defendant Hill is Secretary andTreasurer for the Board.

Motion on March 22, 2018. The matter is accordingly ripe for decision. For the reasons
discussed below, Defendants' Motion to Dismiss will be granted.
L BACKGROUND

Plaintiff enrolled at Western Michigan University Cooley Law School in 2012.

(Am. Compl. ^ 18, ECF No. 12.) During his first semesterPlaintiff sought a

psychological evaluation, as a result of which Dr. John Braccio diagnosed him with
"ADHD predominately inattentive type (Guarded) and an Adjustment Disorder with
Mixed Anxiety and Depressed Mood." {Id, at U19.) While in law school at Western

Michigan, Plaintifftook a reduced course load and received extra time on his exams. (Id.
at fl 20, 21.) In January of 2015, Plaintiff transferred to Michigan State University

College of Law, where he also received extra time on exams; he received additional
accommodations in the form of "a 30 minute break for any exam that exceed[ed] four (4)

hours and a separate exam room or reduced distraction environment if [a] separate room
[was] not available." {Id. at 123.)

In anticipation of applying to take the Virginia Bar Examination, in 2016 Plaintiff
obtained an updated psychological evaluation, this time from a different clinical

psychologist. Dr. Jennifer Thompson. {Id. at ^ 25.) She diagnosed Plaintiff "with a
Specific Reading Disorder ... and Major Depressive Disorder, Single Episode, Mild."
{Id. at H26.) In his subsequently filed Bar Application, Plaintiffrequested testing
accommodations, specifically "additional testing time, use of a reader, separate testing
area, and a privatetesting room." {Id. at ^ 28.) Plaintiffsupplemented his application

and request for accommodations with the necessary forms and records of his psycho

logical evaluations, as well as other supporting documentation. {Id. at

27, 30-32.)

Bar applications are submitted to and reviewed by the Board, which is a public
entity and an agency of the Supreme Court of Virginia. {Id. at H8.) The Board is

responsible for administering the Bar Examination and otherwise ascertaining the
qualifications of applicants for admission to the Bar of Virginia. {Id.) It is also

responsible for issuing disability-accommodation decisions; petitions for accommoda
tions are reviewed on a case-by-case basis in accordance with the ADA, as amended by
the ADA Amendments Act of 2008 ("ADAAA"), and controlling interpretive case law.
(/c/.atfl83, 84.)

On June 9, 2016, the Board denied Plaintiffs request for accommodations by

letter, statingthat the Board's expert reviewing Plaintiffs claimed disability found that
the clinical documentation did not support the request for additional time. {Id. at H36.)

On June 23, 2016, Plaintiff filed a request for reconsideration with the Board; he included
a letter from Dr. Thompson outlining why she believed Plaintiff fit the criteria for a

Specific Learning Disability. {Id. at ^ 43.) In his request for reconsideration. Plaintiff
also increased his requested time-accommodation, "because he ... learned that there is
more reading on the Virginia Bar Examination than he first understood." {Id. at f 44.)
On July 6, 2016, the Board affirmed its denial of Plaintiffs requested accommodations;
Plaintiff did not appeal this denial further. {Id. at H45.)
As a result of the Board's decision. Plaintiff took the Virginia Bar Examination

without accommodation. {Id. at H56.) On October 20,2016, Plaintiff learned that he did

not pass the Bar, and that he missed the passing score by three points. {Id. at fH 59, 60.)
Plaintiff subsequently took the Michigan Bar Examination, with accommodations, and
passed. {Id. at

65, 66.) He now works as an attorney in Michigan; however, he desires

to practice in Virginia, his home state. {Id. at

67, 68.) Accordingly, he brings this

action.

In Count One of the Amended Complaint, Plaintiff alleges that the Board

unlawfully denied him accommodations to which he was entitled pursuant to the ADA
{Id. at

102-03). In Count Two, Plaintiff alleges that the Board unlawfully

discriminated against him and other individuals with disabilities through its acts and the

policies, practices, and guidelines in place at the time of his application to the Virginia
Bar, in violation of the anti-discrimination requirements of § 504 of the Rehabilitation

Act. {Id. at

113-14.) Finally, Plaintiffalleges in CountThree that the Board violated

Plaintiffs fundamental right to pursue his chosen profession, and that its policies,

practices, and procedures deny him and others like him equal access to the Virginia Bar
Examination and to the legal profession. {Id. at fl 120-22.) Plaintiff seeks declaratory

and injunctive relief, as well as compensatory damages in the amount of$100,000.00.^
11. LEGAL STANDARDS

A motion made pursuant to Fed. R. Civ. P. 12(b)(1) challenges the court's

jurisdiction over the subject matter of a complaint. Such challenges can be facial,
asserting that the facts as pled fail to establish jurisdiction, or factual, disputing the
^Among the reliefrequested inthe Amended Complaint is for the Court to "[o]rder the Defendant to

grant Plaintiffapassing score on the Virginia State Bar." (Am. Compl. 20.) Acl^owledging the Court's
strong reservations regardingthe Tenth Amendment implications ofthis remedy, counsel for Plaintiff
withdrew this particular request for relief at oral argument on Defendants' Motion to Dismiss.

pleadings themselves and arguing that other facts demonstrate that no jurisdiction exists.
If a defendant raises a factual challenge, "the district court may then go beyond the

allegations of the complaint and resolve the jurisdictional facts in dispute by considering
evidence outside the pleadings, such as affidavits." United States ex rel Vuyyuru v.

Jadhav, 555 F.3d 337, 348 (4th Cir. 2008). Consideration of evidence outside of the

pleadings on a 12(b)(1) motion does not necessarily convert the motion to one for
summary judgment. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999)
(citation omitted); McBurney v. Cuccinelli, 616 F.3d 393,409 (4th Cir. 2010) (Agee, J.,

concurring in part and dissenting in part) (motions under Rule 12(b)(1) are not restricted
by Rule 12(d)). Regardless of whether the challenge is facial or factual, the plaintiff
bears the burden of proof to preservejurisdiction. Jadhav, 555 F.3d at 348; Richmond,

Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
Meanwhile, "[a] motion to dismiss under Rule 12(b)(6) tests the sufficiency of a

complaint; importantly, it does not resolve contests surrounding the facts, the merits of a
claim, or the applicability of defenses." Republican Party ofN.C. v. Martin, 980 F.2d
943, 952 (4th Cir. 1992) (citation omitted). To survive a Rule 12(b)(6) challenge, a

complaint must contain sufficient factual information to "state a claim to relief that is
plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); see
also Fed. R. Civ. P. 8(a)(2). To do so, it must contain "'a short and plain statement of the
claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair
notice of what the ... claim is and the grounds upon which it rests.'" Id. at 555 (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957)). Mere labels and conclusions declaring that

the plaintiff is entitled to relief are not enough. Id. Thus, the "[f]actual allegations must
be enough to raise a right to relief above the speculative level" to a level that is "plausible
on its face" rather than merely "conceivable." Id. at 555, 570 (citations omitted). In

considering such a motion, a plaintiffs well-pleaded allegations are taken as true and the
complaint is viewed in the light most favorable to the plaintiff T.G. Slater & Son v.
Donald P. & Patricia A. Brennan, LLC, 385 F.3d 836, 841 (4th Cir. 2004) (citing
Labs, Inc. v. Matkari, 1 F.3d 1130, 1134 (4th Cir. 1993)). Legal conclusions enjoy no

such deference. Ashcroftv. Iqbal, 556 U.S. 662, 678 (2009).
III. DISCUSSION

The Court notes as an initial matter that, while Catherine Crooks Hill is named as

a Defendant in this action, her only mention in the Amended Complaint is in a single

paragraph, which introduces her as "an officer of the [Board], namely Secretary and
Treasurer." (Am. Compl. ^ 10.) Moreover, none of Plaintiff s allegations are levelled

against Defendants, in the plural, butrather against "Defendant," singular, or simply "the
VBBE" (Plaintiffs label for the Board). Finally, Plaintiff introduces his Amended

Complaint by saying that he "states the following ... against the defendant, the Virginia
Board of Bar Examiners (VBBE):...." {Id. at 1.) As such, the Court finds that Plaintiff
has failed to allege any facts that would put Defendant Hill on notice of any claims
asserted against her, personally. See Twombly, 550 U.S. at 555.
To the extent Plaintiff endeavors to use Defendant Hill to preserve jurisdiction

through the Ex Parte Young doctrine, the attempt fails. Ex Parte Young is a jurisdictional
"fiction" that enables a plaintiff to enjoin government officials in their official capacities

from perpetuating violations of constitutional or federal statutory rights, usually where
sovereign immunity bars a suit against the government entity itself. Antrican v. Odom,
290 F.3d 178, 184 (4th Cir. 2002). In this case, however, Defendants are correct that

Plaintiff has failed to allege any actions by Defendant Hill in her individual capacity

which, if enjoined, would provide the relief Plaintiffseeks.^ Accordingly, the Court finds
that Ex Parte Young does not apply, and to the extent that Plaintiff endeavored to state
any claims against Defendant Hill, those claims will be dismissed

More generally speaking, with respect to Plaintiffs claims against the Board,
Defendants argue that the Complaint as a whole should be dismissed because the Court

lacksjurisdiction pursuant to the Rooker-Feldman doctrine. Alternatively, Defendants

arguethat Counts One and Two shouldbe dismissed in recognition of the Board's
sovereign immunity and that Count Three should be dismissed for failure to state an
equal protection claim. For the reasons set forth below, the Court agrees.
A.

The Court Lacks Subject Matter Jurisdiction Pursuant to Rooker-Feldman
The Rooker-Feldman doctrine prevents lower federal courts from hearing cases

where a plaintiff, underthe auspice of bringing a constitutional claim, seeks "review of,
or relief from, a state action or proceeding that is essentiallyjudicial in nature." Suarez
Corp. Indus, v. McGraw, 125 F.3d 222, 228 (4th Cir. 1997) (citing Rooker v. Fidelity
Trust Co., 263 U.S. 413 (1923); District ofColumbia Ct. App. v. Feldman, 460 U.S. 462
^Pickering v. Virginia State Police, relied onby Plaintiff, isdistinguishable insofar as the complaint
in that case alleged that the state entity performed its unlawful conductunder the administration of the
defendant individual. Such is not the case here. As stated above, the Amended Complaint contains one

bare sentence introducing Defendant Hill; nothing else in the pleadings or presented at the hearing
demonstrated that Defendant Hill had individual control over the actions or decisions of the Board or

otherwise personally caused the constitutional violations Plaintiff allegedly suffered.

(1983)). The doctrine applies where a plaintiff brings a claim in federal court that was

actually adjudicated by a state court or inextricably intertwined with the state court's

judgment, or where the plaintiff otherwise had the opportunity to raise that claim during

state proceedings. See Feldman, 460 U.S. at 482 n.l6 (1983). "[I]f 'in order to grant the
federal plaintiff the relief sought, the federal court must determine that the state court

judgment was erroneously entered or must take action that would render the judgment
ineffectual,' Rooker-Feldman is implicated." Jordahl v. Democratic Party, 122 F.3d
192, 202 (4th Cir. 1997).

Defendants contendthat by bringing the present action, Plaintiff is in actuality

asking the Courtto overturn the outcome of a statejudicialproceeding. (Mem. Supp.
Mot. Dismiss 13-14, ECF No. 18.) Among Plaintiffs desired relief is that the Court

declare that Defendantviolated Plaintiffs rights under the ADA and the Rehabilitation

Act by not providing Plaintiff the accommodations that he believes he was entitled to,
and for the Court to "require Defendant to accommodate Plaintiffon any future bar

examinations." (Am. Compl. 20-21.) Plaintiffprimarily argues that the Board's decision
to deny his requested accommodations was not a judicial function, taking the issue
outside the purview of Rooker-Feldman.

It is undisputed that the Board is an agency of the Supreme Court of Virginia. The
critical question for the Court to determine, therefore, is whether or not the Board

proceedings underlying this action were "judicial in nature," as opposed to administrative
or ministerial processes. If the Court concludes that the proceedings were in fact judicial,
it must then consider whether, in the course of those proceedings, the state court actually

adjudicated Plaintiffs claims, or whether Plaintiff has waived adjudication by failing to
bring his claims before the state court when it was proper to do so.
1. The Board's Accommodations Decision was Judicial in Nature

"In evaluating the [Board]'s proceedings to assess their judicial character, we
examine the nature and effect of the proceeding and not the form of it." Allstate Ins. Co.
V. W. Va. State Bar, 233 F.3d 813, 817 (4th Cir. 2000) (citing Feldman, 460 U.S. at 477).

In District ofColumbia Court ofAppeals v. Feldman, the United States Supreme Court

found that the D.C. Court ofAppeals'* engaged in ajudicial act when it denied Feldman
and Hickey waivers that would have allowed them to take the D.C. Bar Examination
despite not having graduated from an accredited law school. The Supreme Court

considered and expressly rejected the characterization of the D.C. Court's determination
as administrative or ministerial. It based its finding on the fact that "the proceedings
before the [D.C.] Court of Appeals involved a 'judicial inquiry' in which the court was

called upon to investigate, declare, and enforce 'liabilities as they [stood] on present or
past facts and under laws supposed already to exist.'" Feldman, 460 U.S. at 479 (second
alteration in original) (quoting Prentis v. Atlantic Coastline, 211 U.S. 210, 226 (1908)).
When considering Feldman's petition, the D.C. Court of Appeals weighed Feldman's

By act of Congress, the D.C. Court of Appeals is authorized to "make such rules as it deems proper
respecting the examination, qualification, and admission of persons to membership in its bar
" § 111,
84 Stat. 521 (codified at D.C. Code § 1l-2501(a) (1981)). Accordingly, it holds a position analogous to
that of the Board, which was created by act of the Virginia General Assembly and made "responsible for
the examination of applicants and otherwise ascertaining the qualifications of applicants for admission to
the bar[,]" and further authorized to "do, or cause to be done, all things it considers necessary, convenient,
or expedient in connection with the preparation, conduct and grading of examinations, in determining the
qualifications of applicants, [and] in determining the requirements for taking and passing examinations
,..Va. Code §§ 54.1-3919, 54.1-3922 (2013).

arguments, the circumstances of his petition, and the court's existing rules and standards
for Bar qualification. Id. at 480. Ultimately, it "determined as a legal matter that
Feldman was not entitled" to the relief he sought: waiver of certain established rules and

prerequisites of admission to the D.C. bar. Id.

In this case, the Board engaged in a similar adjudication when it evaluated

Plaintiffs request for accommodation and ultimately denied it. Just as the D.C. Court of
Appeals considered Feldman's and Rickey's requests for waiver from certain

qualification requirements, the Board considered Plaintiffs request for "waiver" from the
time constraints and other standardized test-taking procedures that normally apply to

Virginia Bar examinees. The Board was presented with competing expert reports

regarding Plaintiffs disability, and it had to determine based on those reports. Plaintiffs
medical and academic records, relevant law, and its own experience and precedents

whether it should grant the requested accommodations.

Plaintiffattempts to argue that the Boardperformed a ministerial act because it
makes its accommodations determination according to guidelines and definitions set by

the ADA. (Br. 0pp. Mot. Dismiss, 14-15.) However, this fact actually cuts against
Plaintiffs position. Just as in Feldman, where the Supreme Courtfound that the D.C.
Court of Appeals "determine[d] in light of existing law and in light of Feldman's

qualifications and arguments whether Feldman's petition should be granted," the Board
determined in light of existing law (the ADA) and Plaintiffs medical and academic
records whether his petition for accommodations should be granted. As the Supreme

10

Court stated in Feldman, this sort of adjudication of current "rights" "is the essence of a
judicial proceeding." 460 U.S. at 481.

In light of Feldman, the Court agrees with Defendants and finds that this

undertaking demonstrates an exercise ofjudicial judgment and therefore constitutes a

judicial proceeding. Plaintiffs arguments to the contrary, particularly those focusing on
the form of the proceedings, are unavailing. Compare PL Supp. Br. 4-5, ECF No. 36,
with Feldman, 460 U.S. at 479-482 ("Admittedly, the proceedings ... did not assume the

form commonly associated with judicial proceedings .... however, 'the form of the

proceeding is not significant. It is the nature and effectwhich is controlling." (quoting In
re Summers, 325 U.S. 561, 567 (1945)).

The Court's finding aligns with that of the Fourth Circuit in Allstate Insurance

Company v. West Virginia StateBar. In that case, the Fourth Circuit found that the West

Virginia State Bar, an agency of the Supreme Court of Appeals of West Virginia and
authorized to regulate the practice of law on its behalf, engaged in judicial decision-

making processes when it determined that Allstate was engaging in the unauthorized

practice of law. Allstate, 233 F.3d at 817-18. Just as the Supreme Court recognized in
Feldman that "the form of the proceeding is not significant[,]" 460 U.S. at 482, the
Fourth Circuit was not deterred by the fact that the West Virginia State Bar "was not a

judicial body and the committee's proceedings did not possess any judicial
characteristics." Allstate, 233 F.3d at 816. Rather, the Court of Appeals took into

consideration the nature and effects of the state bar's proceedings—namely, that it

performed an independent investigation, applied the facts to its own regulations and state

11

Supreme Court precedents, and made a decision. Id. at 817. Importantly, "[t]he
committee did not look into the fiiture and announce a new regulation applicable to all

bar members. Instead, it ruled on a particular case pursuant to current law." Id. Based
on Feldman and Allstate, therefore, the Court finds that the Board performed a judicial

function when it denied Plaintiffs petition for accommodations on the Virginia bar
examination.

2. Plaintiff Had the Opportunity for Actual Adjudication of His Claims in State
Court

Having determined thatthe Board performed a judicial function when it denied
Plaintiffs accommodations petition, the Court must now examine whether the specific
claims Plaintiff brings here were either actually adjudicated by the state court or were

otherwise inextricably intertwined with the issues in the state judicial proceeding. See
Feldman, 460 U.S. at 482;Allstate, 233 F.3d. at 818-19. "A federal claim is inextricably
intertwined with the state-court judgment if the federal claim succeeds only to the extent

thatthe state court wrongly decided the issues before it.'" Id. at 819 (quoting Pennzoil
Corp. V. Texaco, Inc., 481 U.S. 1, 25 (1987) (Marshall, J., concurring)).

The list of Remedies sought in the Amended Complaint makes clear thatPlaintiff
seeks a determination by this Courtthat the state court, through the Board, wrongly

applied the ADA in deciding the merits of his petition for accommodations. Moreover,
although it does not appear that Plaintiff necessarily presentedADA-specific or
constitutional arguments to the Board in his petition or request for reconsideration.

Plaintiff had the opportunity to raise those arguments in an appeal of the Board's decision

12

to the Virginia Supreme Court.^ Despite the settled rule that "a plaintiff is not entitled to
bring [a] claim in federal court if the claim was one that should have been brought in the
state court," Plaintiff brings this suit in lieu of filing such an appeal. See id (quoting
Guess V. Bd. ofMed. Exam 'rs, 967 F.2d 998, 1003 (4th Cir. 1992)); see also Feldman,
460 U.S. at 482 n.l6.

Plaintiff claims that he did not appeal the Board's decision because he was misled
by the language in a letter accompanying his Bar Examination results. This letter stated:
"There is no additional review or regrading of your essay examination score and no

additional score information is available." (Br. 0pp. Mot. Dismiss 16.) Plaintiff takes

the position that, in light of this language, to tell him that "he may request Virginia

Supreme Court review of the Board's decisions after explicitly stating that the decision is
unreviewable is disingenuous." (Id.) If the Court were to find anything disingenuous in

the papers before it, it would be this argument. There is no connection between
Plaintiffs ability to appeal the Board's accommodations decision and the letter
conveying his examination results. The temporal gap alone renders Plaintiffs professed
confusion incredible; Plaintiff received word that the Board denied his request for

reconsideration on July 6, 2016, while Bar results were not released until October 20,
2016. Moreover, the text of the letter clearly states that it is the recipient's "essay

examination score" that is unreviewable. Nothing more. To say that Plaintiff—a

^While the Supreme Court of Virginia's authority to hear appeals of Board decisions is not codified
into any statute, "it is well settled that the [Virginia Supreme] Court retains such inherent power."
Woodardv. Va. Bd. ofBar Exam'rs, 454 F. Supp. 4, 5 (E.D. Va. 1978), qff'd 598 F.2d 1345 (4th Cir.
1979); see also Rogers v. Sup. Ct. ofVa., 590 F. Supp. 102, 108-09 (E.D. Va. 1984), cert, denied 475
U.S. 1086(1986).

13

graduate of law school—^was misled by this letter is frankly inconceivable. Because
Plaintiff failed to take his claims to the Virginia Supreme Court, an avenue entirely open
to him, the Court finds that he has "forfeit[ed] his right to obtain review of the state-court

[sic] decision" in this Court. Feldman, 460 U.S. at 482 n.l6; Allstate, 233 F.3d. at 819.^
Plaintiff attempts to circumvent this conclusion by arguing that he presents a

generalized constitutional challenge to the Board's practices and procedures rather than
an individualized appeal of a stateproceeding, andthat therefore the Court should hear

the dispute. (Br. 0pp. Mot. Dismiss 16.) The Court is notpersuaded. Plaintiff has not
demonstrated that the Board's policies and standards amount to constitutional violations,
such that this Court's intrusion into the state's business of regulating the state bar would

be justified. See Feldman, 460 U.S. at 483 n.l6 ("Finally, it is important to note inthe
context of this case the strength of the state interest in regulating the state bar."); Allstate,

233 F.3d at 817 ("In conducting this analysis we are mindful of the weight given bythe

Supreme Court to federal-state comity concerns that arise out of federal review ofstate
barproceedings

"). For the reasons stated in greater detail below, infra Part III.D.,

the Court finds that Plaintiff has failed to state a claim for violation of the Fourteenth

Amendment; as a result, there is no valid constitutional challenge—general or
^Plaintiff argues thatthe Court cannot find thatPlaintiff was subject to any requirement thathe
"exhaust any administrative remedies ... before filing suit." (Br. 0pp. Mot. Dismiss 16.) The Court
does not do so. Rather, its decision is based on the Supreme Court's reasoning in Feldman: that a

plaintiffs failure to avail himself of the opportunity to raise a constitutional claim in state court may not
open the door to lower federal court jurisdiction, when that jurisdiction would not exist had hedone so.
Feldman, 460 U.S. at 482 n.l6 ("This result is eminently defensible on policy grounds. We have noted
the competence of state courts to adjudicate federal constitutional claims. We alsonoted ... the
desirability of giving the state court thefirst opportunity to consider a state statute or rule in light of
federal constitutional arguments. A state court may give the statute a saving construction in responseto

those arguments. Finally, it is important to note in the context of this case the strength of the state interest
in regulating the state bar." (citations omitted)).
14

otherwise—for this court to consider. Cf. Feldman, 460 U.S. at 482-83 ("To the extent

that Hickey and Feldman mounted a general challenge to the constitutionality of Rule 46
1(b)(3), however, the District Court did have subject matter jurisdiction over their
complaints.").

For the foregoing reasons, the Court finds that the Rooker-Feldman doctrine

precludes the Court from exercising jurisdiction over Plaintiffs claims, and the Amended
Complaint should be dismissed.

Although the Court's analysis could end here, in recognition of the fact that the

Fourth Circuit has not previously addressed the application of the Rooker-Feldman
doctrineto erstwhile appeals of Board decisions in the specific context of Bar
Examination accommodations, the Court will proceed to address the alternative grounds
for dismissal.

B.

Sovereign Immunity Bars Plaintiffs ADA Claim

In Count One, Plaintiff alleges that the Board violated Titles II and III of the ADA

by failing to offer and administer the Bar Examination in a manner that best ensures "that
the examination results for an individual with a disability accurately reflect the

individual's aptitude ... rather than reflecting the individual's disability." (Am. Compl.
fl 74-81.) Specifically, Plaintiffclaims that the Board did not apply the properstandards
in evaluating his request for testing accommodations, thereby discriminating against him.
{Id. 1102.) Plaintiffs ADA claim fails for two reasons. First, Title III of the ADA only

15

applies to private entities, see 42 U.S.C. §§ 12181, etseqj so to the extent Plaintiff
attempts to state a claim under Title III, that claim will be dismissed. Second, the Court
finds that Plaintiff has failed to establish that Congress validly abrogated Virginia's

sovereign immunity for purposes of applying Title II of the ADA to state-regulated
professional licensing.
The Eleventh Amendment to the United States Constitution establishes that the

states may not be sued by private individuals in federal court. Bd. ofTrs. v. Garrett, 531

U.S. 356, 363 (2001). This immunity extends to the "agents and instrumentalities" of the
states as well. Regents ofthe Univ. ofCai v. Doe, 519 U.S. 425,429 (1997). As an arm

of the Supreme Court of Virginia, therefore, the Board enjoys the state's sovereign
immunity. However, such immunity is not absolute.

"Congress may abrogate the [s]tates' Eleventh Amendment immunity when it both

unequivocally intends to do so and 'acts pursuant to a valid grant of constitutional
authority.'" Garrett, 531 U.S. at 363 (quoting Kimel v. Fla. Bd. ofRegents, 528 U.S. 62,
73 (2000)). Congress's unequivocal intentto abrogate sovereign immunity is not in
dispute with regard to the ADA. See 42 U.S.C. § 12202 ("A State shall not be immune
under the [E]leventh [A]mendment to the Constitution of the United States from an
action in Federal or State court of competent jurisdiction for a violation of this chapter.").

Accordingly, the question before the Court is whether the ADA constitutes a valid
exercise of Congress's constitutional authority when applied to the facts at hand.
' The "Prohibitions" of Title 111 apply to "discrimination by public accommodations," 42 U.S.C. §
12182, and "discrimination in specified public transportation services provided by private entities," 42
U.S.C. § 12184. For purposes of Title III, the definition of "public accommodations" is limited to an
enumerated list of private entities. 42 U.S.C. § 12181.

16

In enacting the ADA, Congress invoked its authority "to enforce the [F]ourteenth

[A]niendment and to regulate commerce ...42 U.S.C. § 12101(b)(4). While the
Supreme Court has held that the commerce power is insufficient authorization to abrogate

sovereign immunity, see Seminole Tribe v. Florida, 517 U.S. 44, 72-73, it has found that
Congress may validly abrogate a state's sovereign immunity in order to "exercise its

power under § 5 of the Fourteenth Amendment to enforce the substantive guarantees of
that amendment." Tennessee v. Lane, 541 U.S. 509, 518 (2004) (citing Fitzpatrick v.

Bitzer, 427 U.S. 445,456 (1976)). "Accordingly, the ADA can apply to the States only
to the extent that the statute is appropriate § 5 legislation," Garrett, 531 U.S. at 364.

Section 5 grants Congress "the authority both to remedy and to deter violation of

rights guaranteed [by the Fourteenth Amendment] by prohibiting a somewhat broader
swath of conduct, including that which is not itself forbidden by the Amendment's text."
Lane, 541 U.S. at 518 (quoting Kimel, 528 U.S. at 81). In that vein, § 5 authorizes

Congress to enact "prophylactic legislation" proscribing "facially constitutional conduct,
in order to prevent and deter unconstitutional conduct" and to carry out the basic
objectives of the Equal Protection Clause. Nev. Dep't ofHuman Resources v. Hibbs, 538
U.S. 721, 726 (2003). Nevertheless, such authorization is not unlimited: legislation

passed under the guise of § 5 authority is only valid "if it exhibits 'a congruence and
proportionality between the injury to be prevented or remedied and the means adopted to
that end.'" Lane, 541 U.S. at 520 (quoting City ofBoerne v. Flores, 521 U.S. 507, 520

(1997)). Neither the Supreme Court nor the Fourth Circuit have addressed whether or not
Title II is a valid exercise of Congress's § 5 authority in the context of professional

17

licensing cases. However, the Supreme Court has established a framework for analyzing
§ 5 abrogation, which the Court applies here.

The first step in a § 5 analysis is to identify whether or not the constitutional right

purportedly enforced by the challenged legislation is fundamental. Id. at 522. The

second step is to consider the extent to which the statute is "responsive to, or designed to

prevent, unconstitutional behavior." Constantine v. Rectors & Visitors ofGeorge Mason
Univ., 411 F.3d 474, 487 (4th Cir. 2005) (quoting City ofBoerne, 521 U.S. at 532). This

inquiry focuses on evidence of historical constitutional violations. Id. The final step is to
determine whether the remedial legislation "represent[s] a congruent and proportional

response to this demonstrated history and pattern of discrimination." Id. at 488. If it is a
fundamental right guaranteed by the Fourteenth Amendment, then the Court's "congruent

and proportional" analysis may be more easily satisfied, as "less evidence [is] required to

establish a pattern of unconstitutional conduct" and stronger measures will be deemed
permissible to address the historical wrong. Id. at 485 n.6,486. However, if Congress
seeks to enforce a non-fundamental right, those same strong measures may "exceed[]

what the Constitution requires." Id. at 486 (quoting Lane, 541 U.S. at 532 n.20). If the

legislation is not congruent and proportional, it is not a valid exercise of Congress's § 5
authority.

1. Title II does not Enforce a Fundamental Right in Professional Licensing
Cases

Defendants argue that, as applied in this case. Title II of the ADA is prophylactic

legislation seeking to enforce non-fundamental rights, and that it is an unconstitutionally

18

broad exercise of Congress's § 5 authority. (Mem. Supp. Mot. Dismiss 9-10.) In

contrast, Plaintiff argues that Title II addresses fundamental rights guaranteed by the
Fourteenth Amendment, and that therefore its scope is appropriately broad and fully
constitutional. Particularly, Plaintiff argues that, in the context of professional

examinations. Title II protects the fundamental right of "access to the Courts" and the
fundamental right "to pursue one's profession or common calling." (Br. 0pp. Mot.
Dismiss 6-7 (internal quotations omitted) (citing Lane, 541 U.S. at 523; McBurney v.

Young, 667 F.3d 454,463 (4th Cir. 2012)). Plaintiffs position is flawed.
To begin with, the right of access to the courts discussed in Lane is not a right to

practice law and represent a client before the courts. Rather, the Supreme Court was
concernedwith a criminal defendant's right to be present during trial and to confront

witnesses against him, with a civil litigant's right to a meaningful opportunity to be
heard, and with the public's rightto attend—i.e., physically access—court proceedings.
See Lane, 541 U.S. at 523. Generally speaking, the Supreme Court found in Lane that
the Title II was enacted, in relevant part, to remedy "a pattern of unconstitutional treat

ment in the administration of justice." Id. at 525 (emphasis added). Despite Plaintiffs

eagerness to avail himselfof the precedent set by Lane, he has cited no authority to
suggest that "the alleged right of access to a licensing examination, or to a license itself,
is either akin to or a part of the fundamental right of access to the courts." Turner v.
Nat'I Council ofState Bds. ofNursing, Inc., 561 F. App'x 661, 666 (10th Cir. 2014).

Similarly, the right to pursue one's chosen profession or common calling is not a
fundamental right guaranteed by the Fourteenth Amendment. The case Plaintiff relies on

19

to claim a fundamental right to practice law in Virginia, McBurney v. Young, involves an

Article IV Privileges and Immunities Clause analysis. See 667 F.3d at 463. This is

wholly distinguishable from a Fourteenth Amendment fundamental rights analysis. See

Tolchin v. Sup. Ct. NJ., 111 F.3d 1099, 1114 (3d Cir. 1997) C"[F]undamental' privileges
and immunities are not interchangeable with the rights deemed 'fundamental' for equal

protection purposes."), cert, denied, 522 U.S. 977 (1997); see also Friedman v. Sup. Ct.
ofVa., 822 F.2d 423, 426 (4th Cir. 1987) (recognizing that "the Privileges and
Immunities Clause protects more [rights] than those rights which are considered
fundamental individual rights protected by the Fourteenth Amendment."), affd 487 U.S.
59 (1986). Moreover, the Supreme Court has held that "[t]he Constitution does not

guarantee the unrestricted privilege to engage in a business," Nebbia v. New York, 291
U.S. 502, 527-28 (1934), and "the right to ... pursue a calling[] may be conditioned."
New Motor Vehicle Bd. v. Orrin W. Fox Co., 439 U.S. 96, 107 (1978)

Nebbia)

(analyzing theright to pursue a business or trade in the Fourteenth Amendment context).
Accordingly, the Court finds that the Fourteenth Amendment does not guarantee any
fundamental right to become a state-licensed attorney. Accord Okla. Educ. Ass'n v.
Alcoholic BeverageLaws Enfm 't Comm 'n, 889 F.2d 929 (10th Cir. 1989) ("The
[Supreme] Court... treats equal protection clause cases in which a party claims a
fundamental right to pursue a particular line of employmentdifferently fi*om cases in
which the right is asserted under the privileges and immunities clause. In the Equal
Protection Clause context, the Supreme Court has never recognized a fundamental right

to pursue a particular line of employment." (citing UnitedBldg. & Constr. Trades
20

Council V. Mayor ofCamden, 465 U.S. 208, 219 (1984); Mass. Bd. ofRetirement v.

Murgia, 427 U.S. 307, 313 (1976)));

also Schwarz v. Kogan, 132 F.3d 1387, 1390 n.2

(11th Cir. 1998) ("[T]here is no fundamental right to practice law

").

Plaintiff fights a losing battle to isolate his claims from the Supreme Court's

determination in Board ofTrustees v. Garrett that "[s]tates are not required by the
Fourteenth Amendment to make special accommodations for the disabled, so long as
their actions towards such individuals are rational." 531 U.S. at 366. Based on this

language and the inapplicability of the fundamental rights proffered by Plaintiff, the
Court concludes that, in the context of professional licensing examinations. Title II does

not enforce any fundamental right. Instead, this "class of cases ... implicate[s] only [the]

prohibition on irrational discrimination." Constantine, 411 F.3d at 486 (second alteration
in original) (quoting Lane, 541 U.S. at 532 n.20).

2. Congress Has Not Identified a History of Irrational Disability Discrimination
in Professional Licensing

Having determined the nature of the constitutional right in question, the Court
must now "examine whether Congress identified a history and pattern of unconstitutional
... discrimination ... against the disabled" in the context of professional licensing.
Garrett, 531 U.S. at 368. Since Tennessee v. Lane, the Fourth Circuit has accepted as

"settled" that Congress's purpose in enacting Title II was to address "a pattern of
unconstitutional disability discrimination by States and nonstate government entities with

respect to the provision of public services." Constantine, 411 F.3d at 487. This case is
distinguishable, however, because the alleged discrimination is not in the provision of

21

services, but in the treatment of disabled persons by a state body responsible for granting

professional licenses/
On that particular issue, "the legislative record of the ADA ... simply fails to

show that Congress did in fact identify a pattern of irrational state discrimination ...

against the disabled" in the context of professional licensing. Garrett, 531 U.S. at 368

(emphasis added). Irrational is the key word, given the absence of a fundamental right in
issue and the state's compelling interest in regulating "the practice ofprofessions within
their boundaries." Goldfarb v. Va. State Bar, 421 U.S. 773, 792 (1975) "[A]s part of

their power to protect the public health, safety, and other valid interests [states] have

broad powerto establish standards for licensing practitioners and regulating the practice
of professions." Id. "The interest of the States in regulating lawyers is especially great

since lawyers are essential to the primary governmental ftinction of administering justice,
and have historically been 'officers of the courts.'" Id.; see also Schware v. Bd. ofBar

Exam 'rs ofN.M., 353 U.S. 232, 239 (1957) ("A State can require high standards of

qualification," as long as the qualifications are rationally related to the applicant's fitness
to practice law).

The only record Plaintiff cites to show a history of irrational discrimination is the

Federal Register summary of the ADAAA, which briefly mentions the "ADA rights in
education and testing situations" created by Titles II and III and refers to Congress's
"concem[] about the number of individuals with learning disabilities who were denied
^Generally speaking, PlaintiffsADA claim is thattheBoard discriminated against him byapplying
the wrong standards in evaluating his disability and otherwise failing to provide him his desired
accommodations. See supra Part I.

22

reasonable modifications or testing accommodations." 81 Fed. Reg. 53204, 53209.
Education-related testing is not the same as testing that serves as a gateway to

professional licensing, however, and it is not subject to the same compelling state
interests described above. In light of this scant congressional record and the fact that in

rational-basis review the Supreme Court imposes a higher standard of proof to establish
unconstitutional behavior, the Court finds no historical record to indicate that Congress

enacted Title II to address irrational disability discrimination in professional licensing .

See Lane, 541 U.S. at 529 (noting that where a statute is "targeted at... classifications,

which are subject to a heightened standard of judicial scrutiny, 'it was easier for Congress

to show a pattern of state constitutional violations' than in Garrett or Kimel, bothof
which concerned legislation that targeted classifications subject to rational-basis review"

(quoting A^ev. Dep't ofHuman Res. v. Hibbs, 538U.S. 721, 735-36 (2003)));
accord Guttman v. Khalsa, 669 F.3d 1101, 1124 (10th Cir. 2012) ("Simply put, nothing

in the congressional record suggests Title II was a response to pervasive discrimination in
the area of professional licensing."); Turner, 561 F. App'x at 667-68; Brewer v. Wis. Bd.
ofBar Exam 'rs, 270 F. App'x 418,421 (7th Cir. 2008); Roe v. Johnson, 334 F. Supp. 2d

415,422 (S.D.N.Y. 2004).^

^Plaintiff argues that it is improper to rely on Guttman and Turner, given thatthey arenonbinding
precedent and they cite solely to cases that pre-date the ADAAA. Citing Summers v. AltarumInstitute,
Plaintiff contends that it is error to rely on pre-ADAAA cases, period. 740 F.3d 325, 330 (4th Cir. 2014).
A closer read of that case, however, shows that the Fourth Circuit specifically found that it was error to
base a disability determination on pre-ADAAA cases, given that the ADAAA expanded the ADA's
definition of disability to create a more "liberal standard," /(c/. at 330, 330 n.2. As Guttman and Turner
were not analyzing the language of the ADA/ADAAA, but rather its historical impetus, Summers is
inapposite. Moreover, the Court does not "rely" on these cases; it simply notes that they, among others,
have come to an identical conclusion through their own abrogation analyses.

23

3. Title IPs Accommodation Requirement is not Congruent or Proportional in
Professional Licensing Cases

The Court's final step in this analysis is to determine whether Title II "represent[s]

a congruent and proportional response to [the] demonstrated history and pattern of

discrimination" in professional licensing cases. Constantine, 411 F.3d at 488. In the
words of the Supreme Court, "the appropriateness of the remedy depends on the gravity
of the harm it seeks to prevent[:] 'Difficult and intractable problems often require

powerfiil remedies,' [while] 'strong measures appropriate to address one harm may be an
unwarranted response to another, lesser one.'" Lane, 541 U.S. at 523-24 (quoting Kimel,
528 U.S. at 88; CityofBoerne, 521 U.S. at 530). This case appears to fall into the latter
camp.

State professional licensing does not implicate any ftindamental rights. Therefore,
rational-basis review is appropriate. State practices surrounding licensing are owed

deference, given the states' compelling interest in regulating professions operating in
their boundaries—especially those like the medical and legal professions, which are

imbued withpublic trust and the power to influence the lives of others. Additionally,
Plaintiff has not demonstrated that Congress faced evidence of a widespread pattern of

unconstitutional discrimination in professional licensing when Title II was passed. Thus,

as appliedto the historically "lesser" harm of disability discrimination in professional
licensing, the strong measures created in Title II to address truly widespread deprivations
of fundamental rights appear unwarranted. See id.

24

Moreover, this Court agrees with the Tenth Circuit that, "[a]ithough Title II
permits some flexibility by requiring only reasonable efforts at accommodation, the
statute's sweep is exceptionally broad. The abrogation of sovereign immunity here

would require states to justify a significant range of rational, everyday licensing decisions
that would otherwise be constitutional." Guttman, 669 F.3d at 1124. Every time, as here,

a disgruntled bar applicant disagrees with the Board's decision to listen to one doctor

over another with regard to accommodations, or in other cases disciplinary measures, the
door would stand open to litigation in federal court. The potential magnitude of this

opening counsels against abrogation, as does the fact that doing so may have Tenth
Amendment consequences as well.

For all these reasons, the Court finds that the remedial scheme established by Title

II is neither congruent nor proportional to the negligible history of disability-based
discrimination in state-administered professional licensing, and that "it cannot be

understood as responsive to, or designed to prevent, unconstitutional behavior" in this
context. CityofBoerne, 521 U.S. at 532. As a result, the Court concludes that Title II, as
it applies to the class of cases implicating professional licensing by the states, does not
constitute a valid exercise of Congress's § 5 authority. Congress therefore did not validly
abrogate sovereign immunity with regard to discrimination in the specific field of legal
licensing, and the Court lacks jurisdiction over Plaintiffs ADA claim.
C.

Sovereign Immunity Bars Plaintiffs Rehabilitation Act Claim
Count two asserts a claim against the Board under § 504 of the Rehabilitation Act

("RA"). The RA applies to, inter alia, any department, agency, or other instrumentality

25

of a state, if such entity accepts federal funds and thereby consents to suit. 29 U.S.C. §

794. If the entity does not accept federal funds, its sovereign immunity is preserved. The

department-specific structure of the statute makes clear that one arm of a state accepting
federal funds will not subjugate another arm to RA liability, so long as that second arm

does not accept any federal funds for itself. AccordJim C. v. United States, 235 F.3d
1079,1081 (8th Cir. 2000) ("A state and its instrumentalities can avoid § 504 of the

Rehabilitation Act's (Act) waiver requirement on a piecemeal basis, by simply accepting
federal funds for some departments and declining them for others."); Koslow v.
Pennsylvania, 302 F.3d 161, 171-72 (3d Cir. 2002).

To acknowledge the fact that "[s]tate sovereignty is among the Constitution's most

foundational principles," Madison v. Virginia, 474 F.3d 118, 129 (4th Cir. 2006), "a
waiver of the Government's sovereign immunity will be strictly construed, in terms of its

scope, in favor of the sovereign." Lane v. Pena, 518 U.S. 187, 192 (1996). The waiver
must be knowing andvoluntary, Constantine, 411 F.3d at 494-95, and the Supreme
Court has made clear that, when confronted with a purported waiver of the government's

sovereign immunity, the Court will "constru[e] ambiguities in favor of immunity."
United States v. Williams, 514 U.S. 527, 531 (1995) (citing United States v. Nordic
Village, Inc., 503 U.S. 30, 33 (1992)).
In this case. Defendants have submitted a Declaration from Catherine Crooks Hill,

Secretary and Treasurer to the Board, stating under penalty of perjury that—contrary to

Plaintiffs allegation in the Amended Complaint (Am. Compl. H112)—^the Board does
not receive funds or vouchers from the federal government. (Decl. 14, ECF No. 18-1.)

26

Because sovereign immunity raises ajurisdictional question, Constantine, 411 F.3d at
480, and because Defendants have challenged the factual basis for jurisdiction as set forth

in the Amended Complaint, the Court is permitted to look beyond the complaint and
consider this sworn statement. See Jadhav, 555 F.3d at 348.

Notwithstanding the inherent credibility of a statement under oath, Plaintiff

refused to accept the Declaration on its face, and so the Court permitted discovery into
the limited issue of the Board's financing. Despite this. Plaintiff was unable to find any
evidence that the Board received federal fiinding. Counsel for Plaintiff conceded as

much at the hearing on the Motion to Dismiss. Plaintiff nevertheless clings to the
argument that, because the Virginia Supreme Court receives federal funding for

programs, and because the Board is an arm of the Virginia Supreme Court, the Board
indirectly benefits fi:om the federal funds. (Br. 0pp. Mot. Dismiss 11-12; PI. Supp. Br.

3.) This position ignores the "piecemeal" structure of the RA's waiverprovision, as well
as the "knowing and voluntary" requirement imposed by the Fourth Circuit. The same

goes for Plaintiffs unsupported argument that the Board receives federal funds in the
form of vouchers supplied by other entities to cover Bar-takers' costs and fees. At the
very least, such a scheme would give rise to ambiguity as to the Board's knowing
acceptance of federal funds, and, as stated above, ambiguities are construed in favor of
the sovereign in this analysis. Williams, 514 U.S. at 531.

The Court accordingly finds that the Board does not accept federal funds and has
not waived its Eleventh Amendment sovereign immunity with regard to the RA.
Therefore, the Court lacks jurisdiction over this claim.

27

D.

Plaintiff Fails State a Claim for an Equal Protection Violation

In Count Three of the Amended Complaint, Plaintiff first claims that the Board's

actions violated his fundamental right to pursue his chosen profession or calling, in
violation of the Fourteenth Amendment. For the reasons discussed above, supra Part

B.I., the right to pursue one's chosen profession is not a fundamental right for Fourteenth
Amendment purposes, so this claim fails. Next, Plaintiff claims that the Board's policies,

practices, and procedures denied him equal access to the bar examination, and therefore
the legal profession, by denying him "and other [sic] similarly situated" the

accommodations necessary to "complete the 2016 Virginia Bar Examination on equal
footing with other examinees." (Am. Compl. fl 121-22.)
In the Motion to Dismiss, Defendants argue that Plaintiff has failed to

satisfactorily plead an Equal Protection Clause violation because he has not provided

anything beyond conclusory allegations that he was treated differently from others
similarly situated or alleged discriminatory animus. Plaintiff asserts that he has
sufficiently pled that he was treated differently from similarly situated bar applicants in
that he was not allowed to test on equal footing with them, with his desired
accommodations. Plaintiff ftirther argues that, because the Amended Complaint alleges
that the Board was aware of the ADA and knowingly violated the statue, he has

sufficiently pled discriminatory animus. For the reasons stated below, the Court finds
that Plaintiff has failed to state a claim for violation of the Fourteenth Amendment.

The Equal Protection Clause of the Fourteenth Amendment declares that "[n]o
State shall... deny to any person ... the equal protection of the laws." U.S. Const.,

28

amend. XIV, § 1. This does not forbid states from classifying individuals at all; rather, it

"keeps governmental decisionmakers from treating differently personswho are in all

relevant respects alike." Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). "The purpose of the

equal protection clause of the Fourteenth Amendment is to secure every person within the
State'sjurisdiction against intentional and arbitrary discrimination." Village of
Willowbrookv. Olech, 528 U.S. 562, 564 (2000) (internal quotation marks and alteration

omitted). "To succeed on an equal protection claim, a plaintiff must first demonstrate

that he has been treated differently from others with whom he is similarly situated and

that the unequal treatment was the result of intentional or purposeful discrimination."

King V. Rubenstein, 825 F.3d206,220 (4th Cir. 2016) (quoting Morrison v. Garraghty,
239 F.3d 648, 654 (4th Cir. 2001)). "[The court] must then consider 'whether the

disparity in treatment can bejustified under the requisite level of scrutiny.'" Id. (quoting
Garraghty, 239 F.3d at 654).

At the first prong of the analysis, the Court finds that Plaintiff has failed to
sufficiently allege that he was treated differently from other similarly situated test-takers.
The Amended Complaint states simply that the Board "denied Plaintiff reasonable
accommodations," yet it goes on to claim that this individual denial "discriminates
against Plaintiff and other learning disabled and others with disabilities examinees [sic]."
(Am. Compl. H121.) Plaintiff then proceeds to allege that the Board "is discriminating
and violating the equal protection clause against Plaintiff, and other [sic] similarly
situated, by denying learning disabled and other with disabilities examinees [sic] equal
access to the bar examination and the legal profession." {Id. at 122.) These bare

29

allegations are insufficient for the Court to determine, accepting the pleadings as true,
that the Board took an affirmative action towards or against Plaintiff that it did not take in

the case of a similarly situated individual. The absence of firm comparators renders
Plaintiffs claim nebulous at best, leaving the Court to wonder if Plaintiff is similarly
situated to a test-taker without disabilities, or to a test-taker who was similarly disabled

yet granted accommodations while Plaintiff was not. Such an ambiguous claim is not
viable. See Twombly, 550 U.S. at 555; cf. Rubenstein, 825 F.3d at 221 (affirming that the
plaintiff sufficiently alleged intentional disparity in his treatment when the complaint

alleged facts regarding two similarly situated individuals and the circumstances of their
interactions with the defendant, and how those interactions differed from the plaintiffs).

Accordingly, the Court finds that the Amended Complaint fails to plead unequal
treatment that resulted from intentional or purposeful discrimination.

Even if Plaintiff had alleged sufficient facts to state an intentional disparity in his
treatment, his equal protection claim would still fail at the second prong. "In general,

unless a suspect class is involved, disparate treatment 'is presumed to be valid and will be
sustained "if there is a rational relationship between the disparity of treatment and some

legitimate governmental purpose.""' Id. (quoting Veney v. Wyche, 293 F.3d 726, 731
(4th Cir. 2002) (quoting Heller v. Doe, 509 U.S. 312, 319-20 (1993))). The disabled are
not a suspect class. Garrett, 531 U.S. at 366 (2001). To the extent Plaintiff claims his
disparate treatment was that he was not placed on what he perceived to be equal footing
with other test-takers, the state has a rational and legitimate interest in preserving the
integrity of the bar examination, given that the process of attorney qualification and

30

licensing impacts the public interest. See Goldfarb, 421 U.S. at 792. Moreover, given
that the Board does grant accommodations when it finds them to be warranted, the fact
that it determined that accommodations were not warranted in Plaintiffs case does not

alone render the Board's policies and procedures unconstitutional.

Taking the allegations in Plaintiffs Amended Complaint as true, the Board

provided extensive justifications for its denial of Plaintiffs requested accommodations.
While Plaintiff has alleged that he does not agree with the Board's decision, he has not

alleged facts to show that the decision was arbitrary and capricious, or otherwise divorced
from the Board's purpose in regulating and administering the bar examination. For these
reasons and those stated above, Plaintiff has failed to state a claim for a violation of the

Equal Protection Clause.
IV. CONCLUSION

For the foregoing reasons. Defendants' Motion to Dismiss (ECF No. 17) will be

granted in full.'® An appropriate Order will accompany this Memorandum Opinion.

/s/

Henry E. Hudson
United States District Judge

.
26if
Richmond, VA

Although the Court has found that Plaintiff is not entitled to the legal remedy he seeks, it is
nevertheless hopeful that he will, like many others, attempt the Virginia Bar Examination a second time
and go on to obtain a license to practice law in this state.

31