Bonnette v. District of Columbia Court of Appeals

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CATHRYN JEANNE BONNETTE,
Plaintiff,
v. Civil Action No. 11–1053 (CKK)
DISTRICT OF COLUMBIA COURT OF
APPEALS, et al.,
Defendants.
MEMORANDUM OPINION
(July 13, 2011)
Plaintiff Cathryn Jeanne Bonnette (“Plaintiff” or “Bonnette”), a legally blind law school
graduate, filed this action seeking to require Defendants District of Columbia Court of Appeals
(“Court of Appeals”) and National Conference of Bar Examiners (“NCBE”) to allow her to take
the July 2011 Multistate Bar Exam using a computer equipped with an accessible screen-reading
program called JAWS (which stands for Job Access With Speech) that is commonly used by
individuals with visual impairments. Plaintiff contends that the alternative accommodations
offered by Defendants, which include providing a human reader or an audio CD with the exam,
are not accessible to her and violate the requirements of the Americans with Disabilities Act
(“ADA”) and its implementing regulations. Presently pending before the Court are Plaintiff’s [2]
Motion for Issuance of Preliminary Injunction, Defendant Court of Appeals’s [12] Motion for
Summary Judgment, and Defendant NCBE’s [10] Motion to Dismiss or for Summary Judgment.
The parties have fully briefed these motions under an expedited briefing schedule, and therefore
the motions are ripe for the Court’s resolution.
Based on a searching review of the parties’ motions, supporting declarations and exhibits,
the applicable legal authorities, and the record as a whole, the Court shall deny Defendants’
motions to dismiss and/or for summary judgment and grant Plaintiff’s motion for preliminary
injunction.
I. BACKGROUND
A. The D.C. Bar Examination
Individuals seeking to become licensed to practice law in the District of Columbia must
become members of the District of Columbia Bar. The D.C. Court of Appeals created the
Committee on Admissions (the “Committee”) in April 1972 to oversee the D.C. Bar, and the
Committee is responsible for certifying applications from attorneys for admission to the D.C.
Bar, both by examination and without examination. Court of Appeals Stmt.1 ¶ 1. The D.C. Bar
Examination is conducted in February and July of every year. Id. ¶ 2. As in virtually every other
jurisdiction in the United States, applicants for the D.C. Bar must complete the Multistate Bar
Examination (“MBE”), a six hour examination consisting of 200 multiple-choice questions. Id.
Applicants for the D.C. Bar also must complete the Multistate Performance Test (“MPT”),
consisting of two 90-minute skills questions, and the Multistate Essay Examination (“MEE”), a
collection of 30-minute essay questions. Id. All of these examinations are provided by the
National Conference of Bar Examiners. Id.
1
Pursuant to Local Civil Rule 7(h), motions for summary judgment must be accompanied
by a statement of material facts as to which the moving party contends there is not a genuine
issue, with references to the parts of the record relied on to support the statement. The Court
shall cite to a party’s Statement of Material Facts (“Stmt.”) unless a statement is contradicted by
the opposing party in its responding statement (“Resp. Stmt.”). The Court shall also cite directly
to evidence in the record, where appropriate.
2
NCBE is a non-profit organization that develops standardized examinations that
jurisdictions can choose to purchase and administer as part of their bar examination process.
NCBE Stmt. ¶ 9. The MBE is a secure, standardized examination developed and owned by
NCBE that is administered in paper-and-pencil format. Decl. of Erica Moeser (“Moeser Decl.”)
¶ 3(a). Forty-eight states and the District of Columbia use the MBE as a component of their state
bar examinations. Id. ¶ 3(b). To ensure that scores achieved on different versions of the MBE
taken at different times have the same meaning, a significant number of well-performing items
that appeared on previous administrations of the test are embedded in each current test. Id.
¶ 3(c). In other words, NCBE reuses some of the questions from prior tests on each version of
the MBE. This process, which NCBE calls “equating,” allows NCBE to compare the
performance of candidates on the current test to the performance of prior examinees. Id.
Because of this practice, examination security is a critical part of administering the MBE. Id. If
examination questions are compromised through unauthorized disclosure, they are retired and
must be replaced with new questions. Id. It currently costs NCBE $300,000 and hundreds of
hours of work by staff to develop a single form of an MBE exam. Id.
NCBE publishes its MBE test booklets several months prior to the February and July
dates on which jurisdictions administer their bar examinations. Moeser Decl. ¶ 3(d).
Jurisdictions such as the District of Columbia then order a certain number of test booklets from
NCBE based on the number of individuals who have registered to take the exam. Id. NCBE
sends the MBE test booklets to each jurisdiction, which then administers the MBE along with
other components of the bar examination. Id. NCBE requires that administering jurisdictions
comply with a strict set of security procedures set forth in a document captioned “MBE
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Conditions of Use.” See Decl. of Christopher Dix (“Dix Decl.”), Ex. (MBE Conditions of Use).
These procedures include: documenting a chain of custody for all test booklets and properly
securing them at all times; preparing a seating plan that minimizes the possibility for
communication between neighboring examinees; and screening all personnel before engaging
them as supervisors or proctors. Id. at 1. NCBE requires that the test be administered no earlier
than the last Wednesday of February or July, including any special accommodations required by
the ADA. Id. at 2. NCBE rules prohibit examinees from bringing written material such as
scratch paper or any personal belongings other than pencils to their seats when taking the MBE,
require that examinees be seated in straight rows, and prohibit the use of a computer with the
MBE. Id. at 3. These security protocols must be followed unless the jurisdiction obtains a
separate written agreement from NCBE that describes an alternative practice that ensures the
same level of security. Id.
NCBE makes all of its examinations (including the MBE, the MPT, the MEE, and the
Multistate Professional Responsibility Examination (“MPRE”)) available in several formats so
that they can be administered to disabled individuals who cannot effectively access test content
using standard examination booklets and answer sheets. Moeser Decl. ¶ 7(a). For visually
impaired examinees, NCBE offers the following alternative formats for all of its examinations:
(1) large print paper version, with text up to 72-point font also available in reverse white-on-
black contrast; (2) paper version with closed circuit television magnification; (3) Braille version;
(4) audio CD, to be played on a portable CD player with two available speeds, and with each
question and set of answer choices on a separate track so that examinees can easily replay a
question; and (5) using a human reader. Id. ¶ 7(b). Additionally, for examinations such as the
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MPT and MEE where questions are disclosed after each administration, NCBE makes the
examination available on a disk that can be loaded onto a laptop computer and accessed using
magnification software (such as ZoomText) and/or screen reader software (such as JAWS). Id.
¶ 7(c). Between 2000 and 2010, jurisdictions have ordered approximately 484 audio versions of
the MBE (either audio CD or audio tape) and approximately 92 Brailled examination forms. Id.
¶ 7(d).
Applicants who seek testing accommodations on the D.C. Bar Examination must
complete an Eligibility Questionnaire and provide documentation supporting their claims of
disability and the need for an accommodation. Dix Decl. ¶ 8. The Eligibility Questionnaire
provides applicants with an outline to state the nature, history, and accommodations previously
afforded for the reported disability. Id. ¶ 9. Once this information has been provided, the
Committee on Admissions makes a decision on a case-by-case basis regarding what
accommodation(s) to provide. Id. ¶ 8. In the past five years, the Committee has received
approximately 125 requests for accommodations as a result of various disabilities, including
visual impairment. Id. ¶ 10. The Committee has received five requests in the last nine years
from visually impaired individuals, and those applicants were provided with a number of
accommodations, including Brailled and large print examinations, audio cassettes/CDs, double
time, reader assistance, extra lighting, and, for the MPT and MEE, permission to use a dictating
device and laptop computer. Id. No visually impaired person has ever been provided the use of
computer-based testing on the MBE portion of the examination. Id.
B. Plaintiff and Her Visual Impairment
Plaintiff Cathryn Bonnette is a highly-educated resident of Arlington, Virginia who has
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applied to take the July 2011 administration of the D.C. Bar Examination. Decl. of Cathryn
Bonnette (“Bonnette Decl.”) ¶¶ 2, 8. Bonnette graduated from the University of Michigan with a
B.A. in psychology in 1976 and earned a Masters of Divinity degree from Fuller Seminary in
1989. Id. ¶¶ 3, 5. Bonnette later completed a joint degree program in alternative dispute
resolution at Pepperdine University, earning a J.D. in 2003 and an M.A. in 2005. Id. ¶¶ 6-7.
Approximately thirty years ago, Bonnette was diagnosed with retinopathy, and her vision
has gradually and progressively deteriorated since that time. Bonnette Decl. ¶ 9. She has had
total visual impairment in her right eye at least since childhood. Decl. of Alexis G. Malkin
(“Malkin Decl.”) ¶ 10. Currently, Bonnette has no light perception in either eye and is totally
blind. Bonnette Decl. ¶¶ 9-10. Because of her blindness, Bonnette can no longer read standard
print. Id. ¶ 11. In the early 1990s, Bonnette began using JAWS to supplement her deteriorating
vision. Id. ¶ 13. JAWS, which stands for Job Access With Speech, is screen access software that
reads aloud the text on a computer screen and allows a user to independently navigate through
the text using a keyboard. Id. ¶ 12. JAWS software allows Bonnette to use key commands to
quickly and easily navigate through a document independently, skim text, jump to a particular
section or passage in a document, repeat a word or sentence, spell words, control the reading
speed, and have independent, non-visual access to reading in a manner that mimics the
experience she enjoyed before she lost her vision. Id. By 2001, Bonnette could no longer rely
upon her vision to supplement her ability to read text with auditory methods. Id. ¶ 14.
Accordingly, Bonnette transitioned to the exclusive use of JAWS for reading text, and it is the
primary method she uses to read for work and school, to study for the bar exam, and to perform
nearly all academic, technical, and other lengthy reading. Id.
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Because Bonnette learned to read visually, she is primarily a visual learner. Malkin Decl.
¶ 12. The techniques Bonnette uses when operating JAWS emulate the processes she used
before she lost her vision. Id. When Bonnette uses JAWS, she spends considerable energy
listening to JAWS describe information about the page layout and how the text is structurally
organized. Id. This allows Bonnette to visualize a picture of the page and general layout of the
text in her mind. Id. According to Dr. Alexis G. Malkin, an optometrist who has evaluated
Bonnette, she would be at a significant loss if she had to rely on serial auditory input of text
without any ability to efficiently conceptualize the page layout or structure of the text that she
needs in order to fully comprehend the material. Id. ¶ 13.
According to Fredric K. Schroeder, a research professor at San Diego State University
who works in the field of vocational rehabilitation, screen reading software has become an
essential auxiliary aid for blind individuals in today’s technology-driven society. See Decl. of
Fredric K. Schroeder (“Schroeder Decl.”) ¶ 28. Schools, employers, vocational rehabilitation
professionals, and institutions widely provide this accommodation to blind individuals. Id. Dr.
Schroeder explains that the functionality of screen access software can provide greater efficiency,
proficiency, automaticity, privacy, and independence than the use of a human reader. Id. Dr.
Schroeder further explains that the process of learning to read with a human reader takes
extensive practice and training. Id. ¶ 21. Dr. Schroeder states that most blind individuals who
are computer proficient and who did not learn Braille as a child are advised to use screen access
software as a primary reading method. Id. ¶ 22. Screen access software can be customized to
meet each reader’s specific needs. For example, an individual who was primarily a visual reader
and learner before losing her vision may rely on screen access software that offers some visual
7
input in conjunction with auditory output. Id. ¶ 23. For such readers, transitioning to solely
audio intake can take months or even years. Id. Once a blind person develops proficiency using
screen access software, the process of reading becomes automatic, allowing the reader to
concentrate on acquiring the content of the information rather than focusing on the process of
how to read. Id. ¶ 24.
C. Plaintiff’s Past Use of Auxiliary Aids
While Bonnette was in law school between 2001 and 2003, she was offered only human
readers as an accommodation for examinations, despite the fact that JAWS was her primary
reading method. Bonnette Decl. ¶ 18. Bonnette believes that her grades from law school
reflected her inability to read examination text using human readers. Id. By contrast, in her other
graduate studies at Pepperdine, Bonnette was able to use JAWS to write complex papers and
work on assigned projects. Id. ¶ 19. Bonnette believes that her grades from her graduate
program more accurately reflect her actual abilities rather than her inability to read text. Id.
Prior to law school, Bonnette used a human reader to take the Law School Admission Test
(“LSAT”). See Bonnette Decl., Ex. C at 44.
In November 2001 and again in August 2002, Bonnette took the MPRE, which was
administered by NCBE through a contractor. Moeser Decl. ¶ 9(b). To accommodate her visual
impairment during the November 2001 examination, Bonnette was provided with a human
reader, a private testing room, stop-the-clock breaks, and double testing time. Id. ¶ 9(c). For the
August 2002 administration, Bonnette was provided with a human reader, a private testing room,
a transcriber/writer, and double testing time. Id. On the August 2002 MPRE, Bonnette achieved
a score sufficient to qualify for admission to the bar in every jurisdiction that requires the MPRE.
8
Id. ¶ 9(d). On the November 2001 MPRE, she achieved a score that would qualify in some but
not all jurisdictions. Id.
Bonnette took the California Bar Examination four times between July 2003 and July
2005, during which she was required to use a human reader as an accommodation. Bonnette
Decl. ¶ 20; Moeser Decl. ¶ 9(e). According to NCBE’s records, Bonnette’s scaled score on the
MBE portion of those examinations ranged from 132 to 142. Moeser Decl. ¶ 9(e). To
successfully pass the D.C. Bar Examination, applicants must achieve a total scaled score of 266
or greater, which is an average scaled score of 133 on the MBE and on the essay portion. See
D.C. Ct. App. R. 46(b)(10)(i). Bonnette did not successfully pass the California Bar
Examination. Bonnette Decl. ¶ 20. Bonnette believes that her failure to pass was due in part to
her inability to effectively read the content of the examination. Id. Since last taking that test in
July 2005, Bonnette has not had the opportunity to work with a human reader in the context of
testing. Id.
Bonnette found it very difficult, frustrating, and humiliating to work with human readers
on the California Bar Examination and during her law school examinations. Bonnette Decl. ¶ 22.
According to Bonnette, human readers often misunderstood what, where, and how she wanted
them to read, mispronounced or misread words, and suddenly halted their speech when they
encountered a technical legal term with which they were unfamiliar. Id. Bonnette also found
that the performance of a human reader deteriorated over the long hours of reading required for
the bar examination. Id. In addition, Bonnette explained that human readers often had difficulty
reading when she requested that they read consecutive sentences in reverse order. Id. These
imperfections and problems ultimately caused Bonnette to break her concentration and shift her
9
attention to the performance of the reader. Id.
After graduating from Pepperdine, Bonnette worked as a program specialist with the
Department of Veterans Affairs and as a project coordinator with the National Association of
Guide-Dog Users. Bonnette Decl. ¶ 21. Bonnette relied on JAWS for the vast majority of her
work-related reading. Id. Bonnette did use human readers, however, to fill out forms and read
small amounts of hand-written material where the length of text to be read was no more than a
few pages. Id.
Bonnette has never used an audio CD to take an examination. Bonnette Decl. ¶ 17.
Bonnette claims that she is not familiar with that method of reading, and therefore she would not
be able to precisely operate the controls to read by character, word, phrase, line, sentence,
paragraph, and page. Id. Although Bonnette has had minimal instruction in Braille, she does not
have the Braille skills necessary to read complex or academic text in an examination setting. Id.
¶ 15.
D. Plaintiff’s Request for Accommodations on the D.C. Bar Examination
On or about December 29, 2010, Bonnette submitted a request for testing
accommodations for the February 2011 administration of the D.C. Bar Examination. Bonnette
Decl. ¶ 27. Bonnette submitted documentation of her disability and asked for the following
accommodations: (1) use of a laptop computer with a word processor and JAWS for Windows
speech software to read aloud the text of examination questions and to write outlines in
organizing essay responses; (2) double time; (3) a separate testing room; (4) a scribe to fill out
required paper work or computerized answer sheets that require ovals to be filled in using a
pencil; and (5) stoppered bottles of drinking water available as needed in arms length of the
10
keyboard. Id., Ex. C at 46-47. The Committee granted Bonnette’s requests with respect to the
MEE and MPT portions of the D.C. Bar Examination. Id. ¶ 28. With respect to the MBE, the
Committee granted Bonnette’s request for double time, a separate testing room, a scribe, and told
her that she could bring in her own water as well as her own ergonomic chair. Id., Ex. D.
However, the Committee denied Bonnette’s request to use a laptop equipped with JAWS for the
MBE because it was not permitted by NCBE. Id.; Dix Decl. ¶ 14. The Committee offered
Bonnette the use of an audio CD or a human reader who is an attorney. Bonnette Decl., Ex. D.
Because Bonnette did not feel comfortable with the proposed human reader or audio CD
accommodations, Bonnette withdrew from the February 2011 administration and told the
Committee that she planned to take the examination in July 2011. Bonnette Decl. ¶ 29; Dix
Decl. ¶ 15. Bonnette submitted her application for the July 2011 examination on May 10, 2011,
again requesting the use of a computer with JAWS as an accommodation for her disability.
Bonnette Decl. ¶ 30; Dix Decl. ¶ 16. After a series of negotiations between the Committee and
Bonnette’s counsel, the Committee offered Bonnette the following accommodations for the July
2011 MBE: audio CD, live reader, and Brailled or large print versions. Dix Decl. ¶ 16. The
Committee has also offered to provide Bonnette with a sample CD in advance of the examination
so that she can practice with it; to allow Bonnette to meet with the attorney who would serve as a
reader in advance of the examination; additional testing time beyond the double time requested;
and additional rest breaks. Id. ¶ 17. NCBE has declined to allow the use of JAWS on the MBE
even if the Committee reimburses NCBE for any costs associated with such accommodation. Id.
¶ 18.
NCBE has had no interactions with Bonnette in connection with any request for
11
accommodation she has made for the D.C. Bar Examination, including the MBE. Moeser Decl.
¶ 9(f). NCBE is not involved in processing or evaluating applications to take the D.C. Bar
Examination or deciding individuals requests for accommodations on the exam. Id. ¶ 8.
Bonnette has worked hard for many years to prepare for the practice of law. Bonnette
Decl. ¶ 35. Practicing law is Bonnette’s dream and chosen professional goal, and she is
unwilling to accept inaccurate assessments of her actual abilities based on her capacity to read
using methods other than her primary reading method. Id. Bonnette feels that she will be
humiliated and frustrated if she is forced to take the MBE using a reading method other than
JAWS, as she was required to do during law school and on the California Bar Exam. Id.
Bonnette has set aside most of the summer to study for the July 2011 administration of the D.C.
Bar Examination. Id. ¶ 36. She is enrolled in a bar preparation class and has been diligently
studying for the exam. Id. Bonnette is foregoing income by studying and preparing full time for
the exam rather than locating employment opportunities outside the legal field. Id.
E. Administration of the MBE Using JAWS
In July 2008, NCBE conducted a pilot program involving a single examinee in California
to offer the MBE on an NCBE-owned laptop loaded with JAWS. Moeser Decl. ¶ 10(b)(i). The
pilot program was expanded in July 2009 to include two examinees in North Carolina and one in
California. Id. After reviewing the pilot program, NCBE concluded that it was not currently
feasible to expand the program on a large scale. Id. ¶ 10(b)(ii). NCBE believes that there are
significant, unavoidable security risks relating to administering secure, paper-and-pencil
examinations on laptop computers. Id. Specifically, NCBE is concerned that there is not a
sufficiently secure way to administer the exam via laptop unless NCBE provides its own laptops.
12
See id. ¶ 11. NCBE believes that if it allowed examinees to use their own laptops, it could not
effectively prevent test questions from being copied onto the hard drive of the laptops or ensure
that the laptops were wiped clean of the test questions after the examination. Id. ¶ 11(b). NCBE
also believes that some security risks will remain even if NCBE provides its own laptops because
laptops will be in the custody of the administering jurisdiction, and NCBE cannot keep track of
whether the examination is copied electronically. Id. ¶ 11(c)-(e). NCBE acknowledges that there
are also security risks with administering paper versions of the MBE. Id. ¶ 11(d). According to
Michael Shamos, Distinguished Career Professor in the School of Computer Science at Cargenie
Mellon University, who has extensive experience with electronic voting systems, the security
concerns raised by NCBE can be easily remedied through precautions such as password
encryption and observation by proctors. See Decl. of Michael Shamos ¶¶ 27-37. Professor
Shamos believes that with these precautions, it would be virtually impossible for the security of
the MBE to be compromised without the collusion of the examiners—a risk that is equally
present for paper-based examinations. Id. ¶ 38.
In 2009, one visually impaired examinee in California, Stephanie Enyart, sued NCBE,
seeking to take the MBE and the MPRE on a laptop computer using both JAWS and ZoomText,
a screen magnification software program. Moeser Decl. ¶ 10(c). The district court in California
granted a preliminary injunction requiring NCBE to offer the MBE and MPRE in her requested
format. Id. After she failed both examinations, the district court granted her a second
preliminary injunction. Id. The Ninth Circuit affirmed the district court’s issuance of the
injunctions. See Enyart v. Nat’l Conference of Bar Examiners, 630 F.3d 1153 (9th Cir. 2011).
Three visually impaired examinees filed a similar lawsuit in 2010 in the District of Maryland, but
13
the court orally denied their request for a preliminary injunction. Moeser Decl. ¶ 10(c). One of
those examinees filed a second suit in California seeking accommodations on the California bar
examination, and the district court granted his request for a preliminary injunction. See Elder v.
Nat’l Conference of Bar Examiners, No. C-11-00199, 2011 WL 672662 (N.C. Cal. Feb. 16,
2011). NCBE offered the MBE pursuant to these injunctions.
NCBE contends that there are significant costs associated with loading software onto
additional computers, ensuring their accuracy, and explaining the process to administering
jurisdictions. Moeser Decl. ¶ 10(b)(ii). NCBE has calculated that providing an NCBE laptop for
the MBE costs approximately $5000 per examinee, including the cost of hardware, software,
shipping, and time devoted by NCBE’s testing and IT staff. Id. ¶ 12(a). In fiscal year 2010,
NCBE had approximately $12.3 million in income and its expenses totaled $12.1 million. Id.
¶ 14. The Court of Appeals offered to reimburse NCBE for the cost of administering the MBE to
Bonnette with JAWS, but NCBE declined. Dix Decl. ¶ 18. The Court of Appeals received an
operations budget of $185,660,000 in fiscal year 2011. Decl. of Julio Castillo ¶ 4.
F. The Importance of Offering Plaintiff the Opportunity to Take the MBE with JAWS
In support of her motion for a preliminary injunction, Bonnette has provided the Court
with declarations from a variety of experts who believe that only screen access software such as
JAWS will allow Bonnette to perform effectively on the MBE. For example, Dr. Malkin
believes that based on his review of Bonnette, a human reader or audio CD would not provide
Bonnette with effective access to the MBE. Malkin Decl. ¶ 14. Dr. Malkin explains that neither
a human reader nor an audio CD would permit Bonnette to precisely navigate backwards or
forwards by character, word, sentence, paragraph or page as she currently does when reading
14
with JAWS. Id. ¶¶ 17-18. Therefore, it is the professional opinion of Dr. Malkin that only
screen access software such as JAWS will allow Bonnette to access the MBE and best ensure
that her results on the examination will accurately reflect her aptitude rather than her disability.
Id. ¶ 19.
Dr. Bruce Britton, Professor Emeritus of Cognitive Psychology at the University of
Georgia, has also evaluated Bonnette. See Decl. of Bruce Britton (“Britton Decl.”) ¶ 5. He has
observed her using JAWS and believes that she is fluent with the program. Britton Decl. ¶ 8. He
explains that Bonnette uses JAWS to adjust the speed with which the program vocalizes text as
she reads, slowing down to enhance comprehension. Id. In reading and analyzing a multiple
choice question with a list of answers following it, Bonnette uses key commands to jump from an
answer choice back to the question, skipping over answers she has already ruled out. Id. Dr.
Britton explains that the complexity of the process necessary to solve questions on the MBE
makes it essential for Bonnette to have facilities that are of nearly equivalent functionality as
those afforded to a sighted reader. Id. ¶ 10. Dr. Britton believes that JAWS will best ensure that
Bonnette’s test results accurately reflect her aptitude rather than reflecting Ms. Bonnette’s
sensory impairment. Id.
Dr. Britton explains that the problem-solving skills tested by the MBE require a large
number of regressions, or “look-backs,” at previously encountered text elements, many more than
ordinary text. Britton Decl. ¶¶ 11-12. Dr. Britton explains that regressions are important for the
MBE because the test requires examinees to hold together in their minds different elements from
widely separated parts of the text to analyze a single complex problem. Id. ¶ 13. Dr. Britton
explains that memory decay processes begin to occur immediately after a text element is
15
processed, and the amount of decay is proportional to the amount of time that has passed and the
amount of intervening material. Id. Therefore, slower regressing movement will result in more
decay and interference, leading to lower performance levels. Id. Furthermore, Dr. Britton
explains that the brain’s working memory—which is used to perform a series of mental
operations such as verbal comprehension, comparison, memory retrieval, and judging—has less
capacity than is required to solve questions on the MBE. Id. ¶¶ 15-16. Therefore, an examinee
must often refer back to the text in solving each question. Id. ¶ 16. The process of evaluating
each answer choice requires the same sort of regressions because each possible answer may
require the content of the question to be processed in a different context. Id. ¶ 17.
Dr. Britton explains that for a visual reader who can see text, regressions are
accomplished by nearly instantaneous eye movements, so very little memory decay occurs.
Britton Decl. ¶ 18. When Bonnette uses screen access software such as JAWS, regressions occur
by rapid keystrokes with adjustments, so a moderate amount of memory decay occurs. Id. If a
human speaker is used to read text to Bonnette, regressions occur much more slowly because
Bonnette must first formulate a request to regress, communicate that to the speaker, allow for the
speaker to interpret the request, and then carry out the request. Id. The amount of time lost
through this process is substantial. Id. Dr. Britton opines that even more time would be lost
using an audio CD because the process of scanning with fast-forward or rewind functions is less
precise than verbal commands given to a human reader. Id. ¶ 21.
Dr. Britton also explains that sighted readers have the advantage of being able to visually
skim through text, a process that can be achieved through the use of JAWS but not with a human
reader. Britton Decl. ¶ 19. Dr. Britton further explains that when a skill is practiced intensively
16
over long periods of time, it becomes automatized. Id. ¶ 20. Automatized reading requires less
working memory capacity and leaves more capacity available for other aspects of the task. Id.
Therefore, to the extent that Bonnette has practiced reading with JAWS but not other alternative
reading methods, her reading will be more automatized. Id. Dr. Britton believes that the
additional cognitive demands of using a reading method other than her primary reading method
would negatively affect Bonnette’s test performance compared to her peers. Id. ¶ 33. Based on
these observations, Dr. Britton concludes that screen access software such as JAWS is the only
reasonable accommodation that would best ensure that her results on the MBE will accurately
reflect her aptitude rather than her disability. Id. ¶ 34.
II. LEGAL STANDARD
A. Motion for Preliminary Injunction
A preliminary injunction is “an extraordinary remedy that may only be awarded upon a
clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council,
Inc., 555 U.S. 7, 129 S. Ct. 365, 376 (2008). A plaintiff seeking a preliminary injunction must
establish (1) that she is likely to succeed on the merits, (2) that she is likely to suffer irreparable
harm in the absence of preliminary relief, (3) that the balance of the equities tips in her favor, and
(4) that an injunction would be in the public interest. Id. at 374. “The four factors have typically
been evaluated on a ‘sliding scale.’” Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291
(D.C. Cir. 2009). Under this sliding scale, “[i]f the movant makes an unusually strong showing
on one of the factors, then it does not necessarily have to make as strong a showing on another
factor.” Id. at 1291-92.
“It is particularly important for the [movant] to demonstrate a substantial likelihood of
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success on the merits.” Barton v. District of Columbia, 131 F. Supp. 2d 236, 242 (D.D.C. 2001)
(citing Benten v. Kessler, 505 U.S. 1084, 1085 (1992)). If the movant fails to do so, inquiry into
the remaining factors is unnecessary, for the injunctive relief must be denied on that ground
alone. See Transohio Sav. Bank v. Dir., Off. of Thrift Supervision, 967 F.2d 598, 614 (D.C. Cir.
1992) (affirming denial of preliminary injunction where the district court properly concluded that
the plaintiff had “no likelihood of success on the merits”); Katz v. Georgetown Univ., 246 F.3d
685, 688 (D.C. Cir. 2001) (“[A]lthough we apply a four-factor test in weighing a request for a
preliminary injunction, such relief never will be granted unless a claimant can demonstrate ‘a fair
ground for litigation.’”) (quoting Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559
F.2d 841, 844 (D.C. Cir. 1977); Taylor v. Resolution Trust Corp., 56 F.3d 1497, 1507 (D.C. Cir.)
(“Given the inadequacy of [plaintiff]’s prospects for success on the merits, there may be no
showing of irreparable injury that would entitle him to injunctive relief.”), amended on other
grounds on reh’g, 66 F.3d 1226 (D.C. Cir. 1995). In addition, the movant must establish that
irreparable injury must be likely, “not just a possibility.” Winter v. Natural Res. Def. Council,
Inc., 129 S. Ct. 365, 375 (2008).
B. Motion to Dismiss
Under the Federal Rules of Civil Procedure, a complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. (8)(a), “in
order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it
rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355
U.S. 41, 47 (1957)). Although “detailed factual allegations” are not necessary to withstand a
Rule 12(b)(6) motion to dismiss for failure to state a claim, a plaintiff must furnish “more than
18
labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Id. “Nor
does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at
557). Rather, a complaint must contain sufficient factual allegations that, if accepted as true,
“state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct.
1949 (citing Twombly, 550 U.S. at 556).
When considering a motion to dismiss for failure to state a claim, the court “must accept
as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S.
89, 94 (2007) (per curiam). “The complaint must be liberally construed in favor of the plaintiff,
who must be granted the benefit of all inferences that can be derived from the facts alleged.”
Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) (internal quotation marks omitted).
However, a plaintiff must provide more than just “a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 129 S.Ct. at 1950. When a complaint’s well-pleaded facts do not enable a
court, “draw[ing] on its judicial experience and common sense,” “to infer more than the mere
possibility of misconduct,” the complaint has not shown that the pleader is entitled to relief. Id.C. Motion for Summary Judgment
“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a).
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
19
(A) citing to particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those
made for purposes of the motion only), admissions, interrogatory answers, or other
materials); or
(B) showing that the materials cited do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). “If a party fails to properly support an assertion of fact or fails to
properly address another party’s assertion of fact as required by Rule 56(c), the court may . . .
consider the fact undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e). When
considering a motion for summary judgment, the court may not make credibility determinations
or weigh the evidence; the evidence must be analyzed in the light most favorable to the
nonmoving party, with all justifiable inferences drawn in his favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). “If material facts are at issue, or, though undisputed, are
susceptible to divergent inferences, summary judgment is not available.” Moore v. Hartman, 571
F.3d 62, 66 (D.C. Cir. 2009) (citation omitted).
The mere existence of a factual dispute, by itself, is insufficient to bar summary
judgment. See Liberty Lobby, Inc., 477 U.S. at 248. “Only disputes over facts that might affect
the outcome of the suit under the governing law will properly preclude the entry of summary
judgment.” Id. For a dispute about a material fact to be “genuine,” there must be sufficient
admissible evidence that a reasonable trier of fact could find for the nonmoving party. Id. The
Court must determine “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”
Id. at 251-52. “If the evidence is merely colorable, or is not sufficiently probative, summary
judgment may be granted.” Id. at 249-50 (internal citations omitted). The adverse party must
20
“do more than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Conclusory
assertions offered without any factual basis in the record cannot create a genuine dispute. See
Ass’n of Flight Attendants-CWA v. U.S. Dep’t of Transp., 564 F.3d 462, 465-66 (D.C. Cir. 2009).
III. DISCUSSION
Bonnette contends that the Court of Appeals and the NCBE are required by the
Americans with Disabilities Act and its implementing regulations to let her take the MBE using a
computer equipped with JAWS. Defendants disagree with Bonnette’s interpretation of the ADA
and contend that the accommodations they have offered her, particularly the option of using a
human reader or an audio CD, are adequate as a matter of law. Additionally, Defendant NCBE
contends that the ADA’s accessibility mandate does not apply to it because it is not the entity that
is offering the MBE to Bonnette. Because of the emergency nature of the relief requested by
Bonnette, the Court shall analyze the four factors relevant to Bonnette’s motion for preliminary
injunction and address Defendants’ dispositive motions in the context of the first prong of the
analysis.
A. Likelihood of Success on the Merits
1. The ADA and Governing Regulations
The Americans with Disabilities Act is broadly aimed at eliminating discrimination
against individuals with disabilities. See 42 U.S.C. § 12101(b)(1). Title II of the ADA prohibits
discrimination in the provision of public services by state and local governments (including the
District of Columbia), see 42 U.S.C. §§ 12131-12165, and Title III of the ADA prohibits
discrimination in public accommodations and certain services operated by private entities, see id.21
§§ 12181-12189. Specifically, Title II provides that “no qualified individual with a disability
shall, by reason of such disability, be excluded from participation in or be denied the benefits of
the services, programs, or activities of a public entity, or be subjected to discrimination by such
entity.” Id. § 12132. Implementing regulations promulgated by the Department of Justice further
clarify public entities’ obligations under the ADA:
A public entity, in providing any aid, benefit, or service, may not, directly or through
contractual, licensing, or other arrangements, on the basis of disability—
...
Provide a qualified individual with a disability with an aid, benefit, or service that is
not as effective in affording equal opportunity to obtain the same result, to gain the
same benefit, or to reach the same level of achievement as that provided to others[.]
28 C.F.R. § 35.130(b)(1) (emphasis added).
A public entity may not administer a licensing or certification program in a manner
that subjects qualified individuals with disabilities to discrimination on the basis of
disability, nor may a public entity establish requirements for the programs or
activities of licensees or certified entities that subject qualified individuals with
disabilities to discrimination on the basis of disability.
...
A public entity shall make reasonable modifications in policies, practices, or
procedures when the modifications are necessary to avoid discrimination on the basis
of disability, unless the public entity can demonstrate that making the modifications
would fundamentally alter the nature of the service, program, or activity.
Id. § 35.130(b)(6)-(7).
(a)(1) A public entity shall take appropriate steps to ensure that communications with
applicants, participants, members of the public, and companions with disabilities are
as effective as communications with others.
...
(b)(1) A public entity shall furnish appropriate auxiliary aids and services where
22
necessary to afford individuals with disabilities, including applicants, participants,
companions, and members of the public, an equal opportunity to participate in, and
enjoy the benefits of, a service, program, or activity of a public entity.
(2) The type of auxiliary aid or service necessary to ensure effective communication
will vary in accordance with the method of communication used by the individual;
the nature, length, and complexity of the communication involved; and the context
in which the communication is taking place. In determining what types of auxiliary
aids and services are necessary, a public entity shall give primary consideration to the
requests of individuals with disabilities. In order to be effective, auxiliary aids and
services must be provided in accessible formats, in a timely manner, and in such a
way as to protect the privacy and independence of the individual with a disability.
Id. § 35.160 (emphasis added). These implementing regulations must be “given controlling
weight unless they are arbitrary, capricious, or manifestly contrary to the statute.” Chevron
U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984). The parties agree that
these provisions apply to the Court of Appeals as a public entity.
Title III of the ADA also contains a provision that specifically addresses examinations
such as the Multistate Bar Exam: “Any person that offers examination or courses related to
applications, licensing, certification, or credentialing for secondary or post-secondary education,
professional, or trade purposes shall offer such examinations or courses in a place and manner
accessible to persons with disabilities or offer alternative accessible arrangements for such
individuals.” 42 U.S.C. § 12189. The Court of Appeals argues that it is not a “person” within
the meaning of this provision and that the placement of this provision in Title III rather than Title
II suggests that the provision does not apply to public entities. However, “[a]lthough Title III
generally applies only to private entities, the examination provision has unanimously been held to
apply to public entities, and specifically to state bar examinations.” Bartlett v. N.Y. State Bd. of
Law Examiners, 970 F. Supp. 1094, 1128-29 (S.D.N.Y. 1997) (Sotomayor, J.), vacated in part
23
on other grounds, 226 F.3d 69 (2d Cir. 2000). This interpretation is consistent with the
definition of “person” in Title I of the ADA, which includes public entities. See 42 U.S.C. §
12111(7). Furthermore, the language of § 12189 is consistent with the nondiscrimination
mandate in Title II and its accompanying regulations. Accord Nondiscrimination on the Basis of
Disability in State and Local Government Services, 75 Fed. Reg. 56,164, 56,236 (Sept. 15, 2010)
(stating the Justice Department’s position that public entities are also covered by § 12189).
Therefore the Court holds that § 12189 applies to the Court of Appeals.
2. NCBE’s Motion to Dismiss
NCBE contends that § 12189 does not apply to it because it does not “offer” the MBE
within the meaning of the statute. NCBE argues that it is the Court of Appeals that “offers” the
MBE because the Court of Appeals administers the examination and NCBE is merely a vendor
that provides testing materials. NCBE has moved to dismiss the claim asserted against it on this
basis. Both Plaintiff and the Court of Appeals oppose NCBE’s motion to dismiss. As the Court
of Appeals points out in its opposition brief, NCBE imposes strict conditions on the use of the
MBE for the D.C. Bar Exam, which includes prohibitions on the use of a computer. As a
practical matter, the facts suggest that NCBE “offers” the MBE in conjunction with the Court of
Appeals for purposes of the D.C. Bar Exam. NCBE interprets the “place and manner” language
in § 12189 as applying only to aspects of test administration (such as site selection or eligibility
criteria) that are separate from the actual testing procedure. But that narrow interpretation is not
supported by the Justice Department’s implementing regulation, 28 C.F.R. § 36.309, which states
in part that “[r]equired modifications to an examination may include changes in the length of
time permitted for completion of the examination and adaptation in the manner in which the
24
examination is given.” 28 C.F.R. § 36.309(b)(2). Therefore, to the extent that NCBE exercises
control over the manner in which the examination is given, it is subject to § 12189.2 The Court
shall deny NCBE’s motion to dismiss because the question of whether NCBE offers the MBE is
a factual one not appropriate for resolution through Rule 12(b)(6).3 Furthermore, based on the
record presently before the Court, it appears that Plaintiff is likely to establish that NCBE offers
the MBE for purposes of § 12189.
3. The “Best Ensure” Regulation
The parties have focused much of their briefing on the implementing regulation for
§ 12189, which reads in relevant part as follows:
(1) Any private entity offering an examination covered by this section must assure
that—
(i) The examination is selected and administered so as to best ensure that,
when the examination is administered to an individual with a disability that impairs
sensory, manual, or speaking skills, the examination results accurately reflect the
individual’s aptitude or achievement level or whatever other factor the examination
purports to measure, rather than reflecting the individual’s impaired sensory, manual,
or speaking skills (except where those skills are the factors that the examination
purports to measure);
...
(2) Required modifications to an examination may include changes in the length of
time permitted for completion of the examination and adaptation in the manner in
which the examination is given.
2
NCBE also suggests that § 12189 applies only to “public accommodations” as defined
in Title III of the ADA and argues in the alternative that Title III regulations applicable to public
accommodations would not require NCBE to alter or modify the goods or services it offers. See
NCBE Br. at 16-18. However, § 12189 clearly applies to “any person” that offers examinations,
not just public accommodations. Therefore, the Title III regulations governing public
accommodations have no direct bearing on the legal issue presently before the Court.
3
In addition, Plaintiff has requested the opportunity to engage in discovery on this issue.
25
(3) A private entity offering an examination covered by this section shall provide
appropriate auxiliary aids for persons with impaired sensory, manual, or speaking
skills, unless that private entity can demonstrate that offering a particular auxiliary
aid would fundamentally alter the measurement of the skills or knowledge the
examination is intended to test or would result in an undue burden. Auxiliary aids
and services required by this section may include taped examinations, interpreters or
other effective methods of making orally delivered materials available to individuals
with hearing impairments, Brailled or large print examinations and answer sheets or
qualified readers for individuals with visual impairments or learning disabilities,
transcribers for individuals with manual impairments, and other similar services and
actions.
28 C.F.R. § 36.309(b) (emphasis added). By its own terms, this regulation applies only to private
entities such as NCBE. However, the Justice Department has explained that the Title III
regulation is “useful as a guide for determining what constitutes discriminatory conduct by a
public entity in testing situations.” See Nondiscrimination on the Basis of Disability in State and
Local Government Services, 75 Fed. Reg. at 56,236 (Sept. 15, 2010). Accordingly, the language
in 28 C.F.R. § 36.309 is persuasive if not binding authority regarding the Court of Appeals’s
obligations to offer the MBE in an accessible manner. With respect to NCBE, however, the
Court must defer to the Justice Department’s regulation interpreting the requirements of § 12189.
Chevron, 467 U.S. at 844. The Court disagrees with NCBE’s argument that the “best ensure”
requirement in the regulation exceeds the clear limits of the ADA and is not entitled to deference;
the statutory requirement that examinations be offered “in a place and manner accessible to
persons with disabilities” is sufficiently ambiguous that the Court must respect the Justice
Department’s interpretive regulations. See Enyart v. Nat’l Conf. of Bar Examiners, 630 F.3d
1153, 1161-62 (9th Cir. 2011).
4. Defendants’ Motions for Summary Judgment
Defendants contend that the accommodations they have offered Bonnette—which include
26
using a human reader or an audio CD with extra time—are adequate as a matter of law and
therefore they should be awarded summary judgment. Defendants point to the fact that their
offered alternatives are included on the lists of auxiliary aids specifically described in the ADA
and its implementing regulations. See 42 U.S.C. § 12103(1) (defining “auxiliary aids and
services” as including “qualified readers, taped texts, or other effective methods of making
visually delivered materials available to individuals with visual impairments”); 28 C.F.R.
§ 36.309(b)(3) (including “taped examinations” and “Brailled or large print examinations and
answer sheets or qualified readers for individuals with visual impairments” as auxiliary aids and
services that may be required). However, these lists are illustrative, not exhaustive, and the fact
that other qualified individuals with visual impairments may have used them does not mean that
they are accessible to Plaintiff as a matter of law. See 42 U.S.C. § 12103(1) (including “other
similar services and actions” within definition of “auxiliary aids and services”); 28 C.F.R.
§ 36.309(b)(3) (same). As the Ninth Circuit recently explained in Enyart v. Nat’l Conference of
Bar Examiners, “[t]o hold that, as a matter of law, an entity fulfills its obligation to administer an
exam in an accessible manner so long as it offers some or all of the auxiliary aids enumerated in
the statute or regulation would be inconsistent with Congressional intent.” 630 F.3d at 1163-64.
The legislative history suggests that Congress explicitly contemplated that the auxiliary aids and
services provided to individuals with disabilities would “keep pace with the rapidly changing
technology of the times.” Id. at 1164 (quoting H.R. Rep. No. 101-485(II), at 108 (1990),
reprinted in 1990 U.S.C.C.A.N. 303, 391).
Defendants also contend that they are entitled to judgment as a matter of law because
their proffered accommodations were approved by the Justice Department in the context of
27
settlement agreements with other testing entities. NCBE cites SBC Communications Inc. v. FCC,
407 F.3d 1223 (D.C. Cir. 2005), for the proposition that the courts “treat settlements between an
agency and a private party as equivalent to agency regulations for deference purposes.” Id. at
1230. However, that case involved the FCC’s interpretation of its own prior settlement
agreement with the litigant at issue, not a settlement agreement that was applied to bind the
actions of third parties. The Justice Department’s decision to settle a regulatory violation with a
third party does not establish a definitive interpretation of that regulation to which this Court
owes deference.
Defendants argue that the ADA requires only that they provide a “reasonable”
accommodation to make the MBE accessible to Bonnette. Defendants rely primarily on Fink v.
N.Y. City Dep’t of Personnel, 855 F. Supp. 68 (S.D.N.Y. 1994), aff’d, 53 F.3d 565 (2d Cir.
1995), and Jaramillo v. Professional Examination Service, Inc., 544 F. Supp. 2d 126 (D. Conn.
2008). However, the plaintiffs in both Fink and Jaramillo brought claims under Section 504 of
the Vocational Rehabilitation Act, 29 U.S.C. § 794(a), which explicitly embraced a “reasonable
accommodation” standard through its implementing regulations. See 45 C.F.R. § 84.12. This
standard was borrowed and adopted for use in Title I of the ADA, which prohibits discrimination
in employment by requiring employers to provide “reasonable accommodations” to qualified
individuals with disabilities. See 42 U.S.C. § 12112(b)(5). As the Ninth Circuit explained in
Enyart, however, Congress did not incorporate this standard into § 12189. See 630 F.3d at 1162.
Therefore, the cases cited by Defendants that rely on this standard, such as Carter v. Bennett, 840
F.2d 63 (D.C. Cir. 1988), are not controlling. Furthermore, although Title II regulations do
specify that public entities must make “reasonable modifications” to policies, practices, and
28
procedures, this general standard does not override the more specific regulatory guidance relating
to the testing context.
Defendants next rely on regulatory guidance specifying that they are not required to give
an examinee her requested accommodation. The Court agrees that the ADA does not require
Defendants to provide Bonnette with the auxiliary aid that she requests. See Burkhart v. Wash.
Metro Area Transit Auth., 112 F.3d 1207, 1213 (D.C. Cir. 1997) (“Nothing in the ADA itself or
its implementing regulations dictates that a disabled individual must be provided with the type of
auxiliary aid or service he requests.”). Although 28 C.F.R. § 35.160(b)(2) requires public entities
to “give primary consideration to the requests of the individual with disabilities,” an individual’s
request “need not be honored if ‘another effective means of communication exists.’” Burkhart,
112 F.3d at 1213 (quoting 28 C.F.R. app. § 35.160). “Whether a particular form of
communication is ‘as effective’ as another is not judged on an absolute scale, but rather is a
contextual determination based on the type of communication and number of people involved as
well as the importance of the communication.” Id. (citing 28 C.F.R. app. § 35.160). In addition,
the Court must consider factors such as the method of communication used by the individual and
the nature, length, and complexity of the communication involved. 28 C.F.R. § 35.160(b)(2).
Defendants also cite regulatory guidance from the Justice Department explaining, in the
context of Title III regulations applicable to public accommodations, that “[t]he auxiliary aid
requirement is a flexible one” and that “[u]se of the most advanced technology is not required so
long as effective communication is ensured.” 28 C.F.R. pt. 36, App. B at 727-28 (2010).
However, this guidance is not directly applicable here because § 12189, despite being housed in
Title III, applies broadly to all “persons” and not just public accommodations. The Justice
29
Department has concluded that, “[b]ased on a careful review of the ADA legislative history, . . .
Congress did not intend under title III to impose upon a public accommodation the requirement
that it give primary consideration to the request of the individual with a disability.” Id. at 728.
The “primary consideration” requirement is a part of the Title II regulation, however, see 28
C.F.R. § 35.160(b)(2), and, as explained below, that requirement is arguably incorporated into
§ 12189 through the “best ensure” language in its implementing regulation.
Defendants also ask the Court to focus on regulatory guidance from the Equal
Employment Opportunity Commission (“EEOC”) regarding a provision in Title I of the ADA
that defines discrimination to include:
failing to select and administer tests concerning employment in the most effective
manner to ensure that, when such test is administered to a job applicant or employee
who has a disability that impairs sensory, manual, or speaking skills, such test results
accurately reflect the skills, aptitude, or whatever other factor of such applicant or
employee that such test purports to measure, rather than reflecting the impaired
sensory, manual, or speaking skills of such employee or applicant (except where such
skills are the factors that the test purports to measure).
42 U.S.C. § 12112(b)(7). The language in this provision is similar to that used in 28 C.F.R.
§ 36.309(b)(i), using the phrase “most effective” instead of “best ensure.” The EEOC has
explained that “[t]his provision does not require that an employer offer every applicant his or her
choice of test format. Rather, this provision only requires that an employer provide, upon
advance request, alternative, accessible tests to individuals with disabilities that impair sensory,
manual, or speaking skills needed to take the test.” 29 C.F.R. pt. 1630, App. at 386 (2010).
All of this guidance merely confirms that neither Title II nor Title III of the ADA requires
Defendants to provide Bonnette with her requested accommodation simply because it is the
accommodation she most prefers. It does not establish that Defendants’ proffered alternatives are
30
sufficient as a matter of law. Although they differ slightly in their language, both the Title II
regulations applicable to the Court of Appeals (through the “primary consideration” requirement)
and the Title III regulation applicable to NCBE (through its “best ensure” requirement) require
that Bonnette be provided with an accommodation that is at least “as effective” as her preferred
accommodation. Therefore, if Bonnette can establish that the alternative accommodations
offered to her by Defendants do not make the MBE accessible to her in the same way that JAWS
does, then Defendants must provide her with JAWS unless they can establish that doing so would
fundamentally alter the nature of the examination or constitute an undue burden.
As the D.C. Circuit noted in Burkhart, whether a particular accommodation is “as
effective” as another depends on context. 112 F.3d at 1213. For example, in American
Association of People with Disabilities v. Shelley, 324 F. Supp. 2d 1120 (C.D. Cal. 2004), cited
by Defendants, the court ruled that Title II of the ADA did not require the State of California to
maintain direct recording electronic voting systems that allowed visually impaired individuals to
cast votes independently and secretly. The court explained that while “casting a vote
independently and secretly would be preferred over casting a vote with the assistance of a family
member or other aide[,] . . . the ADA does not require accommodation that would enable
disabled persons to vote in a manner that is comparable in every way with the voting rights
enjoyed by persons without disabilities.” Id. at 1126.4 Therefore, in the voting context,
accommodations may be effective if they enable the voter to understand the choices on the ballot
4
The Court notes that 28 C.F.R. § 35.160 was recently amended so as to require that
auxiliary aids and services be provided “in such a way as to protect the privacy and independence
of the individual with a disability.” The amended regulation casts some doubt on the ongoing
validity of the ruling in Shelley.
31
and cast a vote. By contrast, in the testing context, particularly with respect to tests like the MBE
that assess critical reasoning skills, the information being conveyed is far more complex and
voluminous and requires more extensive interaction by the individual with disabilities. Under
such circumstances, it is essential that the content of the questions and the answer choices be
communicated to the examinee in a clear and efficient manner so that the examinee can carefully
evaluate the choices and select an answer within the time allotted for the examination. The Court
must consider the effectiveness of Defendants’ offered accommodations in this context.
5. The Effectiveness of Accommodations Offered to Bonnette
Bonnette has provided the Court with a substantial amount of evidence indicating that a
laptop equipped with JAWS would be the most effective accommodation for her visual
impairment, as it would enable her to easily comprehend the test items on the MBE, scan through
text like a sighted reader, reread critical portions of questions and answer choices, adjust the
speed of her reading, pick up clues about the visual layout of the text, and focus on the content of
the examination rather than on the method in which she is taking it. Defendants do not dispute
the evidence provided by Bonnette that she is a visual learner and that JAWS is her primary
reading method. Nor do Defendants deny that providing Bonnette with her requested
accommodation would be the “best” outcome for her in terms of accommodating her visual
impairment. Rather, Defendants argue that their alternative accommodations, i.e., a human
reader or an audio CD5, are adequate under the ADA and its implementing regulations.
Bonnette has explained why she believes that a human reader would not be an effective
5
Defendants do not argue that their other offered accommodations, such as a large print
or Braille format examination, would be accessible to Bonnette.
32
accommodation for her. Bonnette has a documented history of difficulties communicating with
human readers about how to read and reread text in an examination setting. Although
Defendants have offered Bonnette an attorney as a reader and the opportunity to meet with the
reader in advance of the examination, these proposals will not eliminate the difficulties
associated with learning the speech patterns of the reader and adjusting to that method of reading
during the course of the examination. The evidence in the record suggests that Bonnette will be
at a significant disadvantage if forced to rely on a human reader because she will be distracted by
this unnatural method of reading, meaning that her reading will be less automatic and may
disrupt her critical reasoning skills, which are essential for any examinee taking the MBE.
Defendants argue that Bonnette’s history of using human readers on the LSAT, during law
school, and for the California bar exam demonstrates that it is an appropriate accommodation for
her. But the fact that Bonnette previously was required to rely on human readers does not
establish that human readers would make the MBE accessible to her. The fact that Bonnette
could take the MBE using a human reader does not mean that this accommodation would best
ensure that her score reflected her achievement level rather than her visual impairment; Bonnette
is entitled to an auxiliary aid that allows her to perform at her achievement level, not just one that
might be good enough for her to pass. Furthermore, Title II regulations require that auxiliary aids
be provided “in such a way as to protect the privacy and independence of the individual with a
disability.” 28 C.F.R. § 35.160(b)(2). Human readers offer less privacy and independence than
either an audio CD or JAWS.
Because it offers Bonnette more control and independence than a human reader, an audio
CD appears to be a much better auxiliary aid for her. However, Bonnette is not experienced at
33
using an audio CD, and even though she has been offered the opportunity to practice using an
audio CD before taking the MBE, she is likely to have more difficulty using that method than she
would with JAWS. Furthermore, the record indicates that JAWS provides Bonnette with much
more control and functionality, such as the ability to skim text and the ability to learn clues about
how the text is arranged visually on the page. As Dr. Britton persuasively explained in his
declaration, the memory capacity and reasoning skills necessary to answer questions on the MBE
require that an examinee be able to easily reread parts of the question and the answer choices.
Due to Bonnette’s fluency with JAWS, she is able to use that software to regress through text in a
manner similar to that of a sighted reader. Using an unfamiliar reading method such as an audio
CD would divert some of Bonnette’s mental processing power to the method by which she was
reading the examination rather than its contents.
Defendants argue that Bonnette cannot be certain that using JAWS will be better for her
than using an audio CD or a human reader, citing social science research suggesting that blind
individuals’ preferences for a particular testing format do not always align with their
performance. The studies cited by Defendants are inconclusive, however, and they do not
directly address the circumstances presented by Bonnette in this specific case. Bonnette has
provided the Court with declarations from several experts who have evaluated her personally and
whose professional opinion is that Bonnette would be disadvantaged if she were required to use
either a human reader or an audio CD for the MBE. Defendants object to this testimony as
speculative, but the Court finds their testimony to be persuasive and credible, and the Court is
satisfied that their opinions are sufficiently grounded on their individual evaluations of Bonnette
34
and/or their knowledge and experience in their relevant fields.6 The Court also notes that
Defendants have not presented the Court with any expert testimony rebutting their findings.
In light of this evidence in the record regarding Bonnette’s particular needs and the nature
of the MBE, the Court finds that Bonnette is likely to succeed in demonstrating that the
accommodations offered by Defendants are not accessible to her within the meaning of the
applicable ADA regulations. The Court notes that its determination is not final and is based on
the present record submitted by the parties. Ultimately, the parties may develop a more complete
record regarding the effectiveness of the audio CD option compared to JAWS, which may result
in a different determination. But Bonnette need only demonstrate a substantial likelihood of
success on the merits, and the Court finds that she has satisfied that threshold.
Defendants complain that if they are required to offer Bonnette the chance to take the
MBE using JAWS, they will necessarily be required to provide Bonnette with another
accommodation if, for example, she fails the MBE during the July 2011 administration and seeks
to retake the MBE later with a slightly different version of the software. As the Court explained
above, however, the Court does not read the ADA regulations as requiring Defendants to offer
Bonnette her requested accommodation in every instance. In this case, Bonnette has limited her
request to taking the MBE using a laptop equipped with JAWS (in addition to the other
accommodations such as double time that have been granted by the Court of Appeals), and once
Defendants offer that accommodation, they will have satisfied their obligations under the statute.
6
Defendants argue that Fredric Schroeder lacks the requisite personal knowledge to opine
on what accommodations will work best for Bonnette. The Court does not rely on Schroeder’s
opinion regarding this issue because unlike Drs. Malkin and Britton, he has not personally
examined Bonnette.
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NCBE contends that even if Bonnette can establish that JAWS is the only effective
accommodation for her, she is nevertheless unlikely to succeed on the merits of her ADA claim
because offering that accommodation would amount to an undue burden on NCBE.7 NCBE cites
the cost and administrative burden of administering the exam securely as reasons for finding an
undue burden. The Court is not persuaded by NCBE’s argument. Although NCBE has raised
some valid security concerns about offering the MBE in a computer-based format, the record
suggests that NCBE is able to take measures to ensure that the exam is administered at least as
securely as its paper-and-pencil version of the MBE. The Court is also not persuaded that the
roughly $5000 cost of administering the MBE with JAWS constitutes an undue burden for an
organization whose operating budget exceeds $12 million, particularly where those costs may
covered by the Court of Appeals, which has not raised an undue burden argument in this specific
case. Therefore, based on the present record, the Court finds that NCBE’s undue burden defense
is not strong enough to defeat Bonnette’s claim.
For these reasons, the Court finds that Bonnette is likely to succeed on the merits of her
claim. Because the undisputed facts do not establish that Defendants will prevail on the merits,
the Court shall deny Defendants’ motions for summary judgment. The Court shall now consider
the other factors relevant to determining whether preliminary injunctive relief is warranted.
B. Irreparable Harm
The second prong of the preliminary injunction analysis requires that the plaintiff
demonstrate that she will likely suffer irreparable harm in the absence of an injunction. The
7
Defendants could also prevail on the merits by demonstrating that JAWS would
fundamentally alter the nature of the MBE. However, Defendants do not make this argument.
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plaintiff must demonstrate that “[t]he injury complained of is of such imminence that there is a
‘clear and present’ need for equitable relief to prevent irreparable harm.” Chaplaincy of Full
Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (quoting Wisc. Gas Co. v.
FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (per curiam)). Furthermore, “the injury must be
beyond remediation.” Id.Bonnette contends that she will suffer irreparable injury in the absence of an injunction
because she will either be forced to take the July 2011 MBE under discriminatory conditions or
have to wait until at least the February 2012 administration while her claim is litigated. Because
Bonnette cannot practice law until she successfully passes the D.C. Bar Examination, any delay
in taking the MBE deprives her of time to practice her chosen profession. The lost opportunity to
engage in one’s preferred occupation goes beyond monetary deprivation. See Enyart, 630 F.3d at
1166 (affirming finding of irreparable harm based on plaintiff’s inability to practice law without
successfully passing bar examination).8 Bonnette has been trying to become a licensed attorney
8
Defendants cite several cases where the court found that the plaintiff would not suffer
irreparable harm if denied the opportunity to sit for a bar examination. See Kelly v. W. Va. Bd. of
Law Examiners, Civil Action No. 2:08-00933, 2008 WL 2891036 (S.D. W. Va. July 24, 2008);
O’Brien v. Va. Bd. of Bar Examiners, No. 98-0009-A, 1998 WL 391019 (E.D. Va. Jan. 23,
1998); Pazer v. N.Y. State Bd. of Law Examiners, 849 F. Supp. 284 (S.D.N.Y. 1994). Two of
these cases are factually distinguishable. In O’Brien, the court held that there was no irreparable
harm because even if the plaintiff passed the bar exam, the state board of bar examiners could
still deny him a license to practice law because he had failed to complete his character and fitness
application. 1998 WL 391019 at *2. In Pazer, the court found there was no irreparable harm in
part because the plaintiff had already obtained gainful employment with a law firm. See 849 F.
Supp. at 288. In the third case, the court appears to have merged the irreparable harm inquiry
with the merits inquiry, finding that there was no irreparable harm because the testing
accommodations offered to the plaintiff were sufficient, and so it is less persuasive authority.
See Kelly, 2008 WL 2891036 at *2.
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for many years since she obtained her law degree, and this fact makes further delay more
irremediable, not less as Defendants urge. Furthermore, Bonnette has devoted substantial time
and effort to preparing for the July 2011 MBE, which will have been effectively wasted if she
must wait to take the test at a later date. See Agranoff v. Law Sch. Admission Council, Inc., 97 F.
Supp. 2d 86, 88 (D. Mass. 1999) (finding irreparable harm based in part on the lost time and
effort in preparing for an exam). These considerations indicate that Bonnette will likely suffer
irreparable harm if she unable to take the July 2011 MBE.
Defendants argue that Bonnette cannot show that she is likely to suffer irreparable harm
because it is possible that she will pass the D.C. Bar Exam using either a human reader or an
audio CD on the MBE. See, e.g., Baer v. Nat’l Bd. of Med. Examiners, 392 F. Supp. 2d 42, 48-
49 (D. Mass. 2005) (noting that irreparable harm was uncertain because examinee might pass the
test without her requested accommodation). But forcing Plaintiff to take the MBE under
discriminatory conditions is itself a form of irreparable injury. See Elder v. Nat’l Conference of
Bar Examiners, No. C 11-00199 SI, 2011 WL 672662, at *10 (N.D. Cal. Feb. 16, 2011) (“Taking
the exam without a computer equipped with JAWS . . . would force [plaintiff] to take the exam
under discriminatory circumstances–a result that, in and of itself would cause plaintiff irreparable
harm.”) (citing Chalk v. United States Dist. Ct. Cent. Dist. of Cal., 840 F.2d 701 (9th Cir. 1988));
D’Amico v. N.Y. State Bd. of Law Examiners, 813 F. Supp. 217, 220 (W.D.N.Y. 1993) (finding
that “ongoing discrimination [against plaintiff] based on her medical disability” constituted
irreparable injury); cf. Mills v. District of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009)
(“[T]he loss of constitutional freedoms, ‘for even minimal periods of time, unquestionably
38
constitutes irreparable injury.”). The Court credits Bonnette’s testimony in her declaration that
she will be humiliated and frustrated if she is required to take the MBE using a reading method
that is not her natural reading method. Bonnette cannot recover damages for these harms,
because the ADA provides that the sole remedy available to her is injunctive relief. See 42
U.S.C. § 12188(a). Therefore, the Court finds that Bonnette is likely to suffer irreparable harm in
the absence of a preliminary injunction.
C. Balance of the Equities
The third factor the Court must consider is the balance of the equities. As noted above,
Bonnette is likely to suffer irreparable harm if the Court does not grant a preliminary injunction.
Defendants argue that they too will suffer serious harms if the Court orders them to make the
MBE available to Bonnette on a laptop equipped with JAWS. Specifically, NCBE has
complained that it will be taking a security risk in making the MBE available in a computer-
based format and that it will incur substantial costs. However, NCBE has previously offered the
MBE in this format pursuant to court orders, and the record indicates that NCBE can offer the
MBE securely on its own laptops and with appropriate protocols. Furthermore, Defendants will
not be unfairly burdened by the costs of providing the MBE because Bonnette has volunteered to
post a $5000 bond to cover the estimated costs. Therefore, the Court finds that the balance of the
equities strongly favors Bonnette.
D. Public Interest
The final factor in the preliminary injunction analysis is the public interest. Bonnette
contends that the public interest supports issuance of an injunction because the public has a
strong interest in ensuring that the antidiscrimination aims of the ADA are satisfied. Defendants
39
argue that the public also has an interest in ensuring that the attorney licensure process is secure
and reliable. However, as noted above, the Court is not persuaded that the security of the MBE
will be compromised if Defendants are required to provide the exam to Bonnette in a computer-
based format because there are measures that can be taken to administer the exam securely.
Therefore, the Court finds that the public interest factor tips in favor of Bonnette.
IV. CONCLUSION
Based on the foregoing analysis, the Court finds that Bonnette is likely to succeed on the
merits of her claim; that Bonnette is likely to suffer irreparable harm if injunctive relief is not
granted; that the balance of the equities tips in Bonnette’s favor; and that the public interest
supports the issuance of a preliminary injunction. Therefore, the Court concludes that Bonnette
has satisfied the requirements for preliminary injunctive relief, and the Court shall order
Defendants to offer Bonnette the opportunity to take the MBE using a laptop equipped with
JAWS during the July 2011 administration of the D.C. Bar Examination. The Court shall order
Bonnette to post a $5000 bond to cover the costs of compliance with the injunction. Because the
Court finds that Bonnette has stated a claim against NCBE, the Court shall deny NCBE’s motion
to dismiss. The Court shall also deny Defendants’ motions for summary judgment because the
undisputed facts do not establish that Defendants are entitled to relief. An appropriate Order
accompanies this Memorandum Opinion.
Date: July 13, 2011
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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