Bonnette v. District of Columbia Court of Appeals

• Court: District Court, District of Columbia
• Decided: July 13, 2011
• Docket: Civil Action No. 2011-1053
• Status: Published

Opinion

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

3 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

4 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

5 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.

6 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

17 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.

35 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.

36 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.

37 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