The plaintiff alleged that, by not providing special accommodations for the exam, the State Bar had violated the American with Disabilities Act.

A candidate for admission to the State Bar of California who suffered from multiple serious diseases, filed a federal complaint against the latter, seeking monetary damages and other relief on account of the State Bar’s refusal to provide him with certain test-taking accommodations for the bar exam he attended during the pandemic. He alleged that in doing so the State Bar had violated the American with Disabilities Act.

The State Bar moved to dismiss the lawsuit on several grounds, including that the Eleventh Amendment - according to which federal courts do not have the authority to hear cases brought by private parties against states (the so-called sovereign immunity) - prohibited the action from going forward. The district court agreed with the State Bar, holding that the State Bar was to be considered a state agency and was therefore immune from federal jurisdictions under the US Constitution.

The plaintiff filed an appeal against the above decision before the Ninth Circuit Court, which decided to hear the case “en banc” (this is a special procedure where all judges of a particular court hear a case; it is used when the court believes that matters are especially complex or important). In its judgment of 6 December 2023, the en banc court reaffirmed that the California State Bar enjoys sovereign immunity, which extends not only to suits in which a state itself is a named party, but also to suits against an “arm of the state”.

In its judgment, the Circuit Court elaborated a revised test for determining whether an entity is an arm of the state. Namely, the Court adopted a three-factor test, which considered: (1) the state’s intent as to the status of the entity, including the functions performed by the entity; (2) the state’s control over the entity; and (3) the entity’s overall effects on the state treasury.

The en banc court determined that the initial factor, California's intention regarding the State Bar, strongly supported the characterization of the State Bar as an arm of the state since California law characterized the State Bar as a “governmental instrumentality” and in any case the State Bar performed functions typically performed by state governments. This view was also supported by the second factor - which examined the state's control over the State Bar - since the officers of the State Bar were appointed by state institutions and the state legislature and the Supreme Court controlled a number of functions exercised by the State Bar. In assessing the third factor, (i.e., the impact of the State Bar on the state treasury), the en banc court acknowledged that it posed a more nuanced consideration but ultimately found that it was not conclusive nor determinative.

Reference: K v. State Bar of California, 6 December 23, Ninth Circuit.

Full text of the decision available at en