West Virginia Record

Monday, July 15, 2019

Judge rules for law examiners over learning disabled entrant who wanted more time

By Steve Korris | Apr 29, 2010

CHARLESTON – Law examiners don't have to grant Shannon Kelly twice as long as others to take the state bar examination, U.S. District Judge David Faber decided.

On April 16, Faber ratified a decision of the Board of Law Examiners granting Kelly time and a half due to a learning disability but denying him double time.

"Based on all of the evidence submitted in this case, the Court finds and concludes that petitioner's request for double time was not reasonable," Faber wrote.

"The board has a legitimate interest in ensuring the integrity of its bar examination and in insuring that only qualified individuals are admitted to the practice of law," he wrote.

He found denial of double time rational, especially in light of the challenge to place those with disabilities on an equal footing without giving them an unfair advantage.

Kelly graduated from Concord University in 1997, and attended Thomas M. Cooley Law School in 2001.

In 2003 he transferred to Barry University School of Law, where he received time and a half for exams and then double time.

In 2007, he failed the West Virginia bar exam.

He sued in 2008, claiming the examiners violated his rights under the Americans with Disabilities Act.

He sought an injunction and Faber denied it, finding no evidence that double time was reasonable.

Faber ruled that Kelly wouldn't suffer irreparable harm if he denied an injunction, but the board and other applicants would suffer harm if he granted it.

Kelly failed the exam again.

At a bench trial last August, clinical psychologist Nancy Cruce said Kelly was severely learning disabled in cognitive efficiency requiring motor output and memory skills.

Cruce prescribed "as much time as he needs."

Faber rejected her view, writing that her own tests undermined her conclusion.

"Giving petitioner more time than is required to accommodate his disability would give him an unfair advantage over other applicants," he wrote.

"This is not what is required under the ADA," he wrote.

He wrote that the lack of a formal appeal process didn't violate Kelly's rights because it was common practice to ask the examiners for reconsideration.

He also discarded Kelly's plea that rules for admission to the bar limit him to four attempts to pass the exam.

"There is no absolute limit regarding the number of times an applicant may sit for the West Virginia bar exam," Faber wrote.

Rules allow further opportunities upon permission of the examiners, Faber wrote, and examiner Ancil Ramey testified that the board routinely grants permission.

John Hedges of Morgantown represented the examiners.

Edward McDevitt and Kristin Shaffer, of Bowles Rice McDavid Graff and Love in Charleston, represented Kelly.

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