Don't lower the bar

by The West Virginia Record |
Aug. 1, 2008, 11:00am

West Virginia isn't short of lawyers.

So the court needn't bend rules further for Shannon Kelly, who filed a questionable lawsuit against our State's Board of Law Examiners over his perceived inability to pass West Virginia's bar exam.

Kelly, 32, took the test last year and failed. And he had special help -- the Board printed his exam in large, eighteen-point type, let him take the test in a private room, and allowed him an extra day to finish.

Kelly wants to take the bar exam again. This time, he wants the same special treatment as before with two extra days rather than one extra day--twice as much time as his fellow aspiring lawyers -- to finish the test.

His lawyer claims in a lawsuit that it is the only way Kelly, a 2003 graduate of Barry University School of Law in Orlando, Fla. (he received extra time taking exams there, as well), can be expected to achieve his dream of becoming an attorney.

Edward McDevitt says his client is disabled. He says that by not meeting Kelly's demands, the Board of Law Examiners isn't following the Americans with Disabilities Act (ADA). In other words, by not affording special treatment, the Board is violating the aspiring attorney's civil rights.

"(Kelly) has invested enormous time, money and energy to reach the threshold of the profession," explained McDevitt, of Bowles Rice McDavid Graff and Love in Charleston. "(But) he has severe deficits in processing speed, cognitive fluency and rapid naming."

The suit is asking the court to decide what are the rights of the rest of aspiring lawyers.

Kelly believes he has a right to become a lawyer in West Virginia, even if he has yet to pass the exam. What if he succeeds?

The court has to examine the broader consequences of giving a man who admits to "severe deficits" the unique privileges entrusted to officers of the court.

Would legal briefs have to be written in 18-point type? Would twice the normal time be required for final arguments? Could there be requests for a private room for certain trial proceedings? For now, those questions are hypothetical.

U.S. District Judge David Faber temporarily denied Kelly's demand to take the July test his way. Now Judge Faber must decide if this case should be dispensed with once and for all.

Shannon Kelly wants to become a lawyer, a worthy goal. Judge Faber needs to find the line where special help ends and favored treatment begins.

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