Court Orders Accommodations for Blind Bar Examinee

Wednesday, January 5, 2011

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Court Orders Accommodations for Blind Bar Examinee

By SHERRI M. OKAMOTO, Staff Writer

The Ninth U.S. Circuit Court of Appeals yesterday upheld the propriety of injunctions requiring the National Conference of Bar Examiners to allow a legally blind examinee to take the Multistate Professional Responsibility Exam and the Multistate Bar Exam using a computer equipped with assistive technology software.

The panel concluded that District Judge Charles R. Breyer of the Northern District of California did not abuse his discretion in finding Stephanie Enyart was likely to prevail on her claims that the NCBE’s rejection of her requested accommodations violated the Americans with Disabilities Act.

Enyart, a 2009 graduate of UCLA’s law school, suffers from a form of juvenile macular degeneration known as Stargardt’s Disease. She alleged that her condition—which causes her to experience a large blind spot in the center of her visual field and extreme sensitivity to light—has progressively worsened since she became legally blind at age 15 and that she is dependent on assistive technology to read.

When she registered for the March 2009 MPRE exam, Enyart requested approval to use an assistive screen-reader program that reads aloud text on a computer screen called JAWS and a screen-magnification program that allows the user to adjust the font, size, and color of text and to control a high-visibility cursor known as ZoomText.

The test administrator denied her requested accommodation because NCBE would not provide the MBE in electronic format. She was offered a choice between a live reader or an audio CD of the exam, along with use of closed-circuit television, but Enyart contended these options would be ineffective because they would not allow her to synchronize the auditory and visual imputs.

After ACT denied Enyart’s request for reconsideration, Enyart cancelled her registration for the March 2009 MPRE.

Enyart later applied to take the July 2009 California Bar Exam, requesting the same accommodations she asked for on the MPRE. The California Committee of Bar Examiners denied Enyart’s request to take the MBE portion of the test—which is licensed from NCBE—using a computer equipped with ZoomText and JAWS based on NCBE’s refusal to provide this portion of the exam in an electronic format. Enyart then cancelled her registration for the July 2009 Bar Exam.

Following a second unsuccessful attempt to secure an accommodation to use JAWS and ZoomText on the November 2009 MPRE and her cancellation of her registration to take that administration of the exam, Enyart filed suit against NCBE. She asserted violations of the ADA and California’s civil rights law and sought a preliminary injunction ordering NCBE to allow her to use the assistive software on the February 2010 MBE and the March 2010 MPRE.

Breyer granted Enyart’s motion, finding the alternate accommodations offered by NCBE would not permit her to take the exams “without severe discomfort and disadvantage,” and that the tests were therefore not “accessible” to her.

NCBE appealed, and while its appeal was pending, Enyart learned that her score on the March 2010 MPRE was not high enough to allow her to qualify for admission to the California State Bar.

She then moved for a second preliminary injunction, requesting an order for NCBE to provide her requested accommodations on the August 2010 MPRE and “any other administration” of the bar exam and MPRE.

When Enyart subsequently learned that she did not pass the July 2009 Bar Examination, the district court granted a second preliminary injunction ordering NCBE to allow Enyart to take the July 2010 MBE and the August 2010 MPRE on a computer equipped with ZoomText and JAWS. NCBE appealed again and this appeal was consolidated with its appeal of the first preliminary injunction.

Enyart has since received a high enough score on the August 2010 MPRE to qualify for admission to the California Bar but she did not pass the July 2010 California Bar Exam

Writing for the appellate court, Judge Barry G. Silverman reasoned that the dispute was not rendered moot even though the injunctions only related to the March and August 2010 MPRE exams and the February and July 2010 California Bar Exams, “which have since come and gone.“ He posited that situation facing Enyart was “capable of repetition, yet evading review” as she was reasonably likely to request another injunction for a future administration of the Bar Exam and the duration of such an injunction would be too brief to allow for appellate review.

Silverman then turned to the merits of Enyart’s claims, explaining that the ADA requires entities like NCBE to offer licensing exams in a manner “accessible” to disabled people, or to offer “alternative accessible arrangements.” The Department of Justice has promulgated a regulation interpreting the act as requiring a licensing exam be administered “so as to best ensure…the examination results accurately reflect the individual’s aptitude or achievement level or whatever other factor the examination purports to measure,” rather than that individual’s disability.

Silverman reasoned that the DOJ’s interpretation was not based upon an impermissible construction of the act and was therefore entitled to deference. In applying this standard to the present case, Silverman agreed with the district court’s determination that the administration of the MPRE and MPE to Enyart would not “best ensure” an accurate reflection of her aptitude to practice law.

He opined the district court’s determination the MPRE and MPE were not accessible to Enyart was supported by the evidence she proffered that she would suffer eye fatigue, disorientation, and nausea if she used a CCTV; that auditory input alone was insufficient to allow her to effectively comprehend and retain the language used on the exam; and that, according to Enyart’s ophthalmologist, the combination of ZoomText and JAWS was the only way she can fully comprehend the material she reads.

Silverman acknowledged that Enyart’s prior experiences with the accommodations offered by NCBE could be relevant to establishing whether these accommodations make the MPRE and MBE “accessible,” but are not conclusive, especially as to whether those accommodations “best ensure” that the exams are accessible. The jurist noted that Enyart’s disability is a progressive one, and so an accommodation that may have been sufficient in previous exam settings may not necessarily be sufficient for the present. “

He further emphasized that the relevant issue in this case was not whether the accommodations offered would be sufficient to accommodate other people with vision impairments, but what was necessary to make the MPRE and MBE accessible to Enyart given her impairment and the specific nature of these exams.

Silverman concluded that Enyart had demonstrated irreparable harm in the form of the loss of opportunity to pursue her chosen profession if she is unable to pass the exams in question and the potential harm to NCBE resulting from injunctive relief was minimal in comparison.

Absent any evidence that allowing Enyart to take the MPRE and MBE using a computer equipped with JAWS and ZoomText would result in unreliable or unfair exam results, Silverman said the public interest in enforcement of the ADA and in elimination of discrimination on the basis of disability also supported issuance of the injunctions.

Judge A. Wallace Tashima and Senior Judge Robert E. Cowen of the Third Circuit, sitting on assignment, joined Silverman in his decision.

The case is Enyart v. National Conference of Bar Examiners, 10-15286