Stephanie Enyart v. National Conference of Bar Exa

Filing

FILED OPINION (ROBERT E. COWEN, A. WALLACE TASHIMA and BARRY G. SILVERMAN) AFFIRMED. Judge: REC , Judge: AWT , Judge: BGS Authoring. FILED AND ENTERED JUDGMENT. [7598912] [10-15286, 10-16392]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEPHANIE ENYART,
Plaintiff-Appellee,
v.
NATIONAL CONFERENCE OF BAR
EXAMINERS, INC.,
Defendant-Appellant.

STEPHANIE ENYART,
Plaintiff-Appellee,
v.
NATIONAL CONFERENCE OF BAR
EXAMINERS, INC.,
Defendant-Appellant.

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

No. 10-15286
D.C. No.
3:09-cv-05191-CRB

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



No. 10-16392
D.C. No.
3:09-cv-05191-CRB
OPINION

Appeals from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted
December 6, 2010—San Francisco, California
Filed January 4, 2011
Before: Robert E. Cowen*, A. Wallace Tashima, and
Barry G. Silverman, Circuit Judges.
*The Honorable Robert E. Cowen, Senior United States Circuit Judge
for the Third Circuit, sitting by designation.

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Opinion by Judge Silverman

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COUNSEL
Gregory C. Tenhoff, Lori R.E. Ploeger, Wendy J. Brenner,
and Laura A. Terlouw of Cooley LLP (Palo Alto, California)
for the appellant.

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Robert A. Burgoyne (argued) of Fulbright & Jaworski L.L.P.
(Washington, DC) for the appellant.
Laurence W. Paradis, Anna Levine, and Kara Gilbride of Disability Rights Advocates (Berkeley, California) for the appellee.
Daniel F. Goldstein (argued) of Brown, Goldstein & Levy,
LLP (Baltimore, Maryland) for the appellee.
Scott C. LaBarre of LaBarre Law Offices, P.C. (Denver, Colorado) for the appellee.

OPINION
SILVERMAN, Circuit Judge:
Stephanie Enyart, a legally blind law school graduate,
sought to take the Multistate Professional Responsibility
Exam and the Multistate Bar Exam using a computer
equipped with assistive technology software known as JAWS
and ZoomText. The State Bar of California had no problem
with Enyart’s request but the National Conference of Bar
Examiners refused to grant this particular accommodation.
Enyart sued NCBE under the Americans with Disabilities Act
seeking injunctive relief. The district court issued preliminary
injunctions requiring NCBE to allow Enyart to take the exams
using the assistive software, and NCBE appealed. We hold
that in granting the injunctions, the district court did not abuse
its discretion. We affirm.
I.

Background

Enyart suffers from Stargardt’s Disease, a form of juvenile
macular degeneration that causes her to experience a large
blind spot in the center of her visual field and extreme sensi-

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tivity to light. Her disease has progressively worsened since
she became legally blind at age fifteen. Enyart relies on assistive technology to read.
Enyart graduated from UCLA School of Law in 2009.
Before she could be admitted to practice law in California,
Enyart needed to pass two exams: the Multistate Professional
Responsibility Exam, a 60-question, multiple-choice exam
testing applicants’ knowledge of the standards governing lawyers’ professional conduct; and the California Bar Exam. The
Bar Exam spans three days, on one of which the Multistate
Bar Exam is administered. The MBE is a six-hour, 200question, multiple-choice exam that tests applicants’ knowledge of the law in a number of subject areas. NCBE develops
both the MPRE and the MBE. NCBE contracts with another
testing company, ACT, to administer the MPRE and licenses
the MBE to the California Committee of Bar Examiners for
use in the Bar Exam.
Enyart registered to take the March 2009 administration of
the MPRE and wrote to ACT requesting a number of accommodations for her disability: extra time, a private room,
hourly breaks, permission to bring and use her own lamp, digital clock, sunglasses, yoga mat, and migraine medication during the exam, and permission to take the exam on a laptop
equipped with JAWS and ZoomText software. JAWS is an
assistive screen-reader program that reads aloud text on a
computer screen. ZoomText is a screen-magnification program that allows the user to adjust the font, size, and color of
text and to control a high-visibility cursor.
ACT granted all of Enyart’s requests with the exception of
the computer equipped with JAWS and ZoomText. ACT
explained that it was unable to offer this accommodation
because NCBE would not make the MPRE available in electronic format. In lieu of Enyart’s requested accommodation,
ACT offered her a choice between a live reader or an audio
CD of the exam, along with use of closed-circuit television

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for text magnification. Enyart sought reconsideration of
ACT’s denial of her request to use JAWS and ZoomText,
asserting that the options offered would be ineffective because
they would not allow her to synchronize the auditory and
visual imputs. After ACT denied Enyart’s request for reconsideration, Enyart cancelled her registration for the March
2009 MPRE.
In April 2009, Enyart applied to take the July 2009 California Bar Exam, requesting the same accommodations she
asked for on the MPRE. The California Committee of Bar
Examiners granted all of Enyart’s requested accommodations
with the exception of her request to take the MBE portion of
the test using a computer equipped with ZoomText and
JAWS. The Committee denied this request because NCBE
would not provide the MBE in electronic format. Because of
this denial, Enyart cancelled her registration for the July 2009
Bar Exam.
Enyart registered for the November 2009 MPRE and
requested the same accommodations she previously sought
for the March 2009 administration. NCBE again declined to
allow Enyart to take the MPRE using a computer equipped
with ZoomText and JAWS. Instead, they offered to provide
a human reader, an audio CD of the test questions, a braille
version of the test, and/or a CCTV with a hard-copy version
in large font with white letters printed on a black background.
Because of NCBE’s denial of her request to use a computer
with ZoomText and JAWS, Enyart cancelled her registration
for the November 2009 MPRE.
After these repeated denials of her requests to take the
MPRE and MBE using assistive technology software, Enyart
filed this action against NCBE, ACT, and the State Bar of
California, alleging violations of the ADA and the Uhruh Act,
California’s civil rights law. Enyart sought declaratory and
injunctive relief.

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Enyart moved for a preliminary injunction, asking the district court to order NCBE to allow Enyart to use a computer
equipped with ZoomText and JAWS on the February 2010
MBE and the March 2010 MPRE. After hearing oral argument, the court granted Enyart’s motion, addressing the factors for deciding whether to issue a preliminary injunction in
a well-reasoned order:
Because the accommodations provided by NCBE
will not permit Enyart to take the exam without
severe discomfort and disadvantage, she has demonstrated the test is not “accessible” to her, and that the
accommodations [offered by NCBE] therefore are
not “reasonable.” Therefore, this Court concludes,
based on the current record and moving papers, that
it is more likely than not that Enyart will succeed on
the merits at trial. . . .
....
NCBE spends a good portion of its brief disputing
Enyart’s factual claims that the accommodations
offered by NCBE will not permit her to comfortably
complete the exam. NCBE points out that in the past
Enyart has “successfully utilized a number of different accommodations.” Opp. at 2. She used readers
and audiotapes during her undergraduate years at
Stanford, and used CCTV while working as an
administrative assistant before law school. Id. Further, NCBE points out that Enyart used a reader to
help her complete her LSAT prep program, and used
audiotapes and the services of a human reader on her
examinations. Id.
These factual claims, however, are somewhat
beside the point. First, Enyart avers that hers is a
progressive condition, so there is no reason to
believe an accommodation that may or may not have

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been sufficient during Enyart’s undergraduate coursework would be sufficient. Second, none of those
examinations compare to the bar exam, which is a
multi-day, eight hour per day examination. Hence,
an accommodation that might be sufficient for a law
school examination is not necessarily sufficient for
the bar exam. Third, the relevant question is not
whether Enyart would be able, despite extreme discomfort and disability-related disadvantage, to pass
the relevant exams. NCBE points to no authority to
support the position that an accommodation which
results in “eye fatigue, disorientation and nausea
within five minutes, which become fully developed
several minutes after that” is “reasonable.”
....
The facts as outlined in the attachments to Plaintiff’s motion therefore strongly suggest that the
accommodations offered by NCBE would either
result in extreme discomfort and nausea, or would
not permit Enyart to sufficiently comprehend and
retain the language used on the test. This would
result in Enyart’s disability severely limiting her performance on the exam, which is clearly forbidden
both by the statute [42 U.S.C. § 12189] and the corresponding regulation [28 C.F.R. § 36. 309].
NCBE’s citation to other regulations and cases
does not overcome this factual presentation. . . .
[T]he examples [of auxiliary aids] offered in the regulation and the statute cannot be read as exclusive,
nor do those examples support the conclusion that
such accommodations are reasonable even where
they do not permit effective communication. On the
contrary, the statute and relevant regulations all
emphasize access and effective communication. The
statute itself illustrates that the central question is

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whether the disabled individual is able to employ an
“effective method[ ] of making visually delivered
materials available.” The evidence submitted by
Plaintiff strongly suggests that the only auxiliary aid
that meets this criteria is a computer with JAWS and
ZoomText. While NCBE may be successful at trial
in establishing that this is not the case, the record
presently before this Court more strongly supports
the conclusion that only ZoomText and JAWS make
the test “accessible” to Enyart. See 42 U.S.C.
§ 12189.
Order Granting Prelim. Inj. 5-9, Feb. 4, 2010 (footnotes omitted). The district court required Enyart to post a $5,000
injunction bond. NCBE immediately appealed the preliminary
injunction.
Meanwhile, while NCBE’s appeal of the preliminary
injunction was pending, Enyart learned that her score on the
March 2010 MPRE was not high enough to allow her to qualify for admission to the California Bar. She moved for a second preliminary injunction, asking the court to order NCBE
to provide her requested accommodations on the August 2010
MPRE and “any other administration to Ms. Enyart of the
California Bar Exam, the Multistate Bar Exam (‘MBE’)
and/or the MPRE.” After filing her motion, Enyart learned
that she did not pass the July 2009 Bar Exam. The district
court granted a second preliminary injunction ordering NCBE
to allow Enyart to take the July 2010 MBE and the August
2010 MPRE on a computer equipped with ZoomText and
JAWS, stating:
The relevant question here is whether the auxiliary
aids offered by NCBE make the test’s “visually
delivered materials available” to Enyart. As this
Court has previously concluded, they do not. . . .
NCBE continues to argue that Enyart is not entitled
to her preferred accommodations, and in so doing

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continues to miss the point. She does not argue that
she simply “prefers” to use JAWS and ZoomText.
On the contrary, she has presented evidence that the
accommodations offered by NCBE do not permit her
to fully understand the test material, and that some
of the offered accommodations result in serious
physical discomfort. CCTV makes her nauseous and
results in eye strain, and the use of human readers is
not suited to the kind of test where on must re-read
both questions and answers, and continually shift
back and forth between different passages of text.
. . . Such accommodations do not make the test
accessible to Enyart, and so do not satisfy the standard under the ADA.
Order Granting Prelim. Inj. 5-6, June 22, 2010. The court
required Enyart to post an additional $5,000 injunction bond.
NCBE immediately appealed, and the appeal was consolidated with NCBE’s appeal of the first preliminary injunction.
Enyart has since learned that she received a high enough
score on the August 2010 MPRE to qualify for admission to
the California Bar but that she did not pass the July 2010 California Bar Exam.1
II.
A.

Discussion

Jurisdiction and Standard of Review

We have jurisdiction to review the district court’s orders
granting these preliminary injunctions pursuant to 28 U.S.C.
§ 1292(a)(1). Our review is for an abuse of discretion. Does
1-5 v. Chandler, 83 F.3d 1150, 1152 (9th Cir. 1996). “[I]n the
context of a trial court’s factual findings, as applied to legal
rules,” to determine whether a district court has abused its dis1

The MBE constitutes only a portion of the California Bar Exam. Enyart
does not know what her score was on the MBE portion of the exam.

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cretion, “the first step of our abuse of discretion test is to
determine de novo whether the trial court identified the correct legal rule to apply to the relief requested. If the trial court
failed to do so, we must conclude it abused its discretion.”
United States v. Hinkson, 585 F.3d 1247, 1259, 1261-62 (9th
Cir. 2009) (en banc) (footnote omitted). If the trial court identified the correct legal rule, “the second step . . . is to determine whether the trial court’s application of the correct legal
standard was (1) ‘illogical,’ (2) ‘implausible,’ or (3) without
‘support in inferences that may be drawn from the facts in the
record.’ ” Id. at 1262 (footnote and citation omitted). We may
affirm the district court on any ground supported by the
record. Canyon County v. Sygenta Seeds, Inc., 519 F.3d 969,
975 (9th Cir. 2008).
B.

Mootness

[1] As an initial matter, we hold that even though the
injunctions only related to the March and August 2010 MPRE
exams and the February and July 2010 California Bar Exams,
which have since come and gone, NCBE’s appeals are not
moot because the situation is capable of repetition, yet evading review. “The test for mootness of an appeal is whether the
appellate court can give the appellant any effective relief in
the event that it decides the matter on the merits in his favor.
If it can grant such relief, the matter is not moot.” Garcia v.
Lawn, 805 F.2d 1400, 1402 (9th Cir. 1986). An established
exception to mootness applies where “(1) the challenged
action is in its duration too short to be fully litigated prior to
cessation or expiration; and (2) there is a reasonable expectation that the same complaining party will be subject to the
same action again.” Fed. Election Comm’n v. Wis. Right to
Life, Inc., 551 U.S. 449, 462 (2007) (internal quotation marks
and citation omitted).
There is a reasonable expectation that NCBE will be subject to another preliminary injunction in this case. After failing to achieve a passing score on the February 2010

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California Bar Exam, Enyart took the test again in July 2010.
Now that she failed the July 2010 exam, it is reasonable to
expect that she will sign up for a future administration and
that she will seek another preliminary injunction. The situation is capable of repetition, satisfying the first prong of the
capable-of-repetition-yet-evading-review exception to mootness.
These preliminary injunctions also evade review. On February 4, 2010, the district court issued the first preliminary
injunction in this case, which required NCBE to allow Enyart
to use JAWS and ZoomText for the February 2010 MBE and
the March 2010 MPRE. Once Enyart took these two exams,
the terms of the preliminary injunction were fully and irrevocably carried out. The second injunction issued June 22, 2010,
and required NCBE to allow Enyart to use JAWS and
ZoomText for the July 2010 MBE and the August 2010
MPRE. Again, once Enyart took these exams, the terms of the
second preliminary injunction were fully and irrevocably carried out. Due to the limited duration of these injunctions—
little more than a month passed between the issuance of the
injunctions and the final execution of their terms—NCBE
could not practically obtain appellate review of the district
court’s orders until after the administration of the exams.
Because the duration of these injunctions is too short to allow
full litigation prior to their expiration, they meet the “evading
review” prong of the capable-of-repetition-yet-evadingreview exception to mootness.
C.

Preliminary Injunctions

[2] A plaintiff seeking a preliminary injunction must show
that: (1) she is likely to succeed on the merits, (2) she is likely
to suffer irreparable harm in the absence of preliminary relief,
(3) the balance of equities tips in her favor, and (4) an injunction is in the public interest. Winter v. Natural Res. Def.
Council, 129 S. Ct. 365, 374 (2008) (citations omitted). The

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district court correctly identified the Winter standard as controlling in this case.
1.

Likelihood of Success on the Merits

Congress enacted the ADA in order to eliminate discrimination against individuals with disabilities. See 42 U.S.C.
§ 12101(b). The ADA furthers Congress’s goal regarding
individuals with disabilities: “to assure equality of opportunity, full participation, independent living, and economic selfsufficiency for such individuals[.]” 42 U.S.C. § 12101(a)(8).
The ADA contains four substantive titles: Title I relates to
employment; Title II relates to state and local governments;
Title III relates to public accommodations and services operated by private entities; and Title IV relates to telecommunications and common carriers. See generally Americans with
Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213 and 47
U.S.C. §§ 225, 611.
[3] 42 U.S.C. § 12189, which falls within Title III of the
ADA, governs professional licensing examinations. This section requires entities that offer examinations “related to applications, licensing, certification, or credentialing for . . .
professional, or trade purposes” to “offer such examinations
. . . in a place and manner accessible to persons with disabilities or offer alternative accessible arrangements for such individuals.” 42 U.S.C. § 12189 (emphasis added). The purpose
of this section is “to assure that persons with disabilities are
not foreclosed from educational, professional, or trade opportunities because an examination or course is conducted in an
inaccessible site or without an accommodation.” H.R. Rep.
No. 101-485 (III), at 68-69 (1990), reprinted in 1990
U.S.C.C.A.N. 445, 491-92.
The Attorney General is charged with carrying out many of
the provisions of the ADA and issuing such regulations as he
deems necessary. Relevant here, the Attorney General is
responsible for issuing regulations carrying out all non-

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transportation provisions of Title III, including issuing accessibility standards. 42 U.S.C. § 12186(b).
[4] Pursuant to its authority to issue regulations carrying
out the provisions of Title III, the Department of Justice has
adopted a regulation interpreting § 12189. This regulation
defines the obligations of testing entities:
Any private entity offering an examination covered
by this section must assure that . . . [t]he 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 . . . [.]
28 C.F.R. § 36.309(b)(1)(i) (emphasis added). The regulation
continues:
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 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.
Id. § 36.309(b)(3).
Enyart argues that DOJ’s regulation requires NCBE to
administer the MBE and MPRE “so as to best ensure” that her
results on the tests accurately reflect her aptitude, rather than
her disability. NCBE argues that the regulation is invalid and
asks this court to apply a reasonableness standard in lieu of

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the regulation’s “best ensure” standard. The district court
declined to rule on the validity of 28 C.F.R. § 36.309, and
instead held that “even assuming NCBE’s more defendantfriendly standard applies,” Enyart had demonstrated a likelihood of success on the merits.
We defer to an agency’s interpretation of a statute it is
charged with administering if the statute “is silent or ambiguous with respect to the specific issue” and the agency’s interpretation is “based upon a permissible construction of the
statute.” Contract Mgmt., Inc. v. Rumsfeld, 434 F.3d 1145,
1146-47 (9th Cir. 2006) (quoting Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984)). We
hold that 28 C.F.R. § 36.309 is entitled to Chevron deference.
[5] Section 12189 requires entities like NCBE to offer
licensing exams in a manner “accessible” to disabled people
or to offer “alternative accessible arrangements.” 42 U.S.C.
§ 12189. Congress’s use of the phrases “accessible” and “alternative accessible arrangements” is ambiguous in the context of licensing exams.2 Nowhere in § 12189, in Title III
more broadly, or in the entire ADA did Congress define these
terms. The phrase “readily accessible” appears in Titles II and
III, but only with respect to physical spaces, i.e., facilities,
vehicles, and rail cars. See 42 U.S.C. §§ 12142-12148, 1216212165, 12182-12184. The phrase is not defined; instead, the
Act directs the Secretary of Transportation to issue regulations establishing accessibility standards for public transportation facilities, vehicles, and rail cars, 42 U.S.C. §§ 12149,
12163-12164, and 12186(a), and directs the Attorney General
2

“Accessible” can mean “capable of being used as an entrance;” “capable of being reached or easily approached;” “easy to get along with, talk
to, or deal with;” “capable of being influenced or affected;” or “capable
of being used, seen, known, or experienced.” Webster’s Third New International Dictionary, Unabridged 11 (2002). The last definition, “capable
of being used, seen, known, or experienced,” is most relevant here. This
definition alone does not provide guidance as to what an entity must do
to administer an exam in an “accessible” manner.

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to issue regulations establishing accessibility standards for
new construction and alterations in public accommodations
and commercial facilities, 42 U.S.C. § 12186(b). The text of
these other ADA provisions does not resolve the ambiguity in
§ 12189’s use of term “accessible” because an examination is
not equivalent to a physical space.3
[6] Because § 12189 is ambiguous with respect to its
requirement that entities administer licencing exams in a manner “accessible” to individuals with disabilities, we defer to
DOJ’s interpretation of the statute so long as that interpretation is based upon a permissible construction of the statute.
See Contract Mgmt., Inc., 434 F.3d at 1146-47. NCBE seeks
to invalidate 28 C.F.R. § 36.309, arguing that the regulation
imposes an obligation beyond the statutory mandate. Instead
of the regulation’s requirement that entities administer licensing exams in a manner “so as to best ensure” that the results
reflect whatever skill or aptitude the exam purports to measure, NCBE argues that the ADA only requires such entities
to provide “reasonable accommodations.”
The “reasonable accommodation” standard advocated by
NCBE originated in the Department of Health and Human
Services’ regulations implementing the Rehabilitation Act of
1973. See 45 C.F.R. 84.12(a) (requiring employers to make
“reasonable accommodation to the known physical or mental
limitations of an otherwise qualified handicapped applicant or
employee unless the [employer] can demonstrate that the
accommodation would impose an undue hardship on the operation of its program or activity.”). When Congress enacted the
ADA, it incorporated 45 C.F.R. 84.12’s “reasonable accommodation” standard into Title I, which applies in the employ3

Of course an exam takes place in a physical location, and § 12189
requires entities such as NCBE to offer the exams in a “place” accessible
to people with disabilities. 28 U.S.C. § 12189. But the statute also requires
exams to be administered in a “manner” accessible to people with disabilities, and that is where the term “accessible” becomes ambiguous.

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ment context. See H.R. Rep. No. 101-485(II), at 2 (1990),
reprinted in 1990 U.S.C.C.A.N. 303, 304 (“Title I of the
ADA . . . incorporates many of the standards of discrimination set out in regulations implementing section 504 of the
Rehabilitation Act of 1973, including the obligation to provide reasonable accommodations unless it would result in an
undue hardship on the operation of the business.”).
[7] Notably, Congress did not incorporate 45 C.F.R.
84.12’s “reasonable accommodation” standard into § 12189.
Instead, § 12189 states that entities offering licensing exams
“shall offer such examinations . . . in a place and manner
accessible to persons with disabilities or offer alternative
arrangements for such individuals.” 42 U.S.C. § 12189. One
reasonable reading of § 12189’s requirement that entities
make licensing exams “accessible” is that such entities must
provide disabled people with an equal opportunity to demonstrate their knowledge or abilities to the same degree as nondisabled people taking the exam—in other words, the entities
must administer the exam “so as to best ensure” that exam
results accurately reflect aptitude rather than disabilities.
DOJ’s regulation is not based upon an impermissible construction of § 12189, so this court affords Chevron deference
to 28 C.F.R. § 36.309 and applies the regulation’s “best
ensure” standard.
[8] Applying 28 C.F.R. § 36.309’s “best ensure” standard,
we conclude that the district court did not abuse its discretion
by holding that Enyart demonstrated a likelihood of success
on the merits. The district court found that the accommodations offered by NCBE did not make the MBE and MPRE
accessible to Enyart. This finding is supported by evidence
that Enyart would suffer eye fatigue, disorientation, and nausea if she used a CCTV, so CCTV does not best ensure that
the exams are accessible to her; that auditory input alone is
insufficient to allow Enyart to effectively comprehend and
retain the language used on the exam; and that, according to
Enyart’s ophthalmologist, the combination of ZoomText and

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JAWS is the only way she can fully comprehend the material
she reads.
NCBE argues that because Enyart has taken other standardized tests using accommodations comparable to those offered
by NCBE, the district court erred in finding that those accommodations did not make the MPRE and MBE accessible to
her. In support of this argument, NCBE points out that Enyart
took the SAT college admissions test using large-print exam
booklets; that she used CCTV for her Advanced Placement
tests; and that she relied on a human reader and scribe during
the LSAT. Although Enyart’s prior experiences with the
accommodations offered by NCBE may be relevant to establishing whether those accommodations make the MPRE and
MBE accessible, they are not conclusive, especially as to
whether those accommodations best ensure that the exams are
accessible. Enyart graduated from college more than a decade
ago, and took the LSAT six years ago. Enyart’s disability is
a progressive one, and as the district court noted, an accommodation that may or may not have been sufficient years ago
is not necessarily sufficient today. Moreover, assistive technology is not frozen in time: as technology advances, testing
accommodations should advance as well.4
NCBE also argues that because it offered to provide auxiliary aids expressly identified in the ADA, the regulations, a
DOJ settlement agreement, and a Resolution of the National
Federation for the Blind, courts should not require it do more.
We do not find this argument persuasive. The issue in this
case is not what might or might not accommodate other people with vision impairments, but what is necessary to make
the MPRE and MBE accessible to Enyart given her specific
impairment and the specific nature of these exams.
4

The record does not even indicate when the ZoomText and JAWS software programs became available.

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As NCBE concedes, the lists of auxiliary aids contained at
42 U.S.C. § 12103 and at 28 C.F.R. § 36.309 are not exhaustive. See 42 U.S.C. § 12103(1) (“the term ‘auxiliary aids and
services’ includes (A) qualified interpreters or other effective
methods of making aurally delivered materials available to
individuals with hearing impairments; (B) qualified readers,
taped texts, or other effective methods of making visually
delivered materials available to individuals with visual
impairments; . . . and (D) other similar services and actions.”)
(emphases added); 28 C.F.R. § 309(b)(3) (“Auxiliary aids and
services required by this section may include taped texts,
interpreters or other effective methods of making orally delivered materials available to individuals with hearing impairments, Brailled or large print texts or qualified readers for
individuals with visual impairments . . . and other similar services and actions.”) (emphases added). To 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:
The Committee wishes to make it clear that technological advances can be expected to further enhance
options for making meaningful and effective opportunities available to individuals with disabilities.
Such advances may require public accommodations
to provide auxiliary aids and services in the future
which today they would not be required because they
would be held to impose undue burdens on such
entities.
Indeed, the Committee intends that the types of
accommodations and services provided to individuals with disabilities, under all of the titles of this bill,
should keep pace with the rapidly changing technology of the times.
H.R. Rep. 101-485(II), at 108 (1990), reprinted in 1990
U.S.C.C.A.N. 303, 391.

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NCBE points next to a July 2000 settlement between DOJ
and the American Association of State Social Work Boards in
which the AASSWB agreed to adopt a policy allowing visionimpaired candidates to choose among a list of available
accommodations for the social work licensing exam. The list
included an audiotaped version of the exam, a large print test
book, a Braille version of the exam, extra time, a private
room, a qualified reader, and a flexible start time. NCBE
argues that because it offered Enyart the accommodations
listed in the AASSWB settlement, the court should conclude
that the accommodations offered satisfied NCBE’s obligations under § 12189 as a matter of law. We find this argument
unpersuasive. There is no reason that this decade-old settlement agreement should define the maximum NCBE can be
required to do in order to meet its obligation to make the
MBE and MPRE accessible to Enyart.5
Finally, NCBE makes much of a Resolution of the National
Federation for the Blind from 2000 that called upon the
American Council on Education to ensure that it administered
the GED exam in “the four standard media routinely used by
blind persons to access standardized tests: large print, Braille,
tape, and live reader.” This NFB Resolution appears to have
been written to address a specific problem identified in the
administration of the GED exam, namely the prohibition on
the use of live readers. Moreover, the NFB has no power to
define testing entities’ obligations under the ADA. The fact
that the NFB ten years ago urged the American Council on
Education to allow test-takers to choose among large print,
Braille, tape, and live reader accommodations does not lead
to the conclusion that, as a matter of law, the accommodations
offered by NCBE made the MBE and MPRE accessible to
Enyart.
5

Moreover, a settlement is, by definition, a compromise and does not
necessarily embrace the maximum reach of the statute.

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The sources described above—the lists of auxiliary aids
contained in the statute and regulation, the AASSWB settlement agreement, and the NFB’s Resolution—possibly support
a conclusion that the accommodations offered by NCBE are
sufficient to meet their obligations with respect to many blind
people in many situations. As we have tried to make clear
already, accommodations that make an exam accessible to
many blind people may not make the exam accessible to
Enyart, and our analysis depends on the individual circumstances of each case, requiring a “fact-specific, individualized
analysis of the disabled individual’s circumstances.” Wong v.
Regents of Univ. of Cal., 192 F.3d 807, 818 (9th Cir. 1999).
Enyart provided the district court with evidence that the
accommodations offered by NCBE will put her at a disadvantage by making her nauseated or by preventing her from comprehending the test material. Enyart presented evidence that
she used JAWS and ZoomText for all but one of her law
school examinations; that a combination of JAWS and
ZoomText is the only way she can effectively access the
exam; and that use of a CCTV causes her to suffer nausea and
eye fatigue. In a sworn statement, Enyart’s ophthalmologist
stated that the only way Enyart can fully comprehend the
material she reads is if she is able to simultaneously listen to
and see magnified test material, as JAWS and ZoomText
allow.
The district court reviewed the evidence of Enyart’s disability and her history of using auxiliary aids including JAWS
and ZoomText, and concluded that “the accommodations
offered by NCBE would either result in extreme discomfort
and nausea, or would not permit Enyart to sufficiently comprehend and retain the language used on the text. This would
result in Enyart’s disability severely limiting her performance
on the exam, which is clearly forbidden both by the statute
and the corresponding regulation.” The court compared
Enyart’s evidence to that offered by NCBE, and found that
the balance “more strongly supports the conclusion that only

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ZoomText and JAWS make the text ‘accessible’ to Enyart.”
This is a logical conclusion, supported by the evidence, and
therefore we conclude that the district court did not abuse its
discretion in holding that Enyart demonstrated a likelihood of
success on the merits.
2.

Irreparable Harm

A plaintiff seeking a preliminary injunction must demonstrate that irreparable injury is likely in the absence of preliminary relief. Winter, 129 S. Ct. at 375. Mere possibility of
harm is not enough. Id. The district court correctly identified
this legal rule and concluded that Enyart had established a
likelihood of irreparable harm. Because the court “got the law
right,” this court should not reverse unless the district court
clearly erred in its factual determinations. Earth Island Institute v. Carlton, ___ F.3d ___, 2010 WL 4399138, at *2 (9th
Cir. 2010).
The district court found that, in the absence of preliminary
relief, Enyart would likely suffer irreparable harm in the form
of (1) the loss of the chance to engage in normal life activity,
i.e., pursuing her chosen profession, and (2) professional
stigma. Enyart additionally argues that, as a matter of law, she
faced irreparable injury from the fact of NCBE’s violation of
the ADA. We need not decide whether discrimination in violation of the ADA constitutes irreparable harm per se, or
whether irreparable harm can be presumed based on such a
statutory violation, because we agree with the district court’s
conclusion that Enyart demonstrated irreparable harm in the
form of the loss of opportunity to pursue her chosen profession.
In her declaration in support of her first preliminary injunction motion, Enyart stated that she would not be able to complete a lengthy exam using NCBE’s proposed
accommodations, even with extended time. The district court
was entitled to give credence to that declaration. If Enyart

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cannot complete the MPRE or the MBE using NCBE’s proposed accommodations—and the evidence suggests that she
can only use CCTV for about five minutes before becoming
nauseated and disoriented, and that without simultaneous
visual and auditory input, she cannot comprehend lengthy
written material—then those proposed accommodations do
not comply with the ADA, when other technology is readily
available that will make the exam accessible.
The district court further inferred that, as a result of her
likely failure, Enyart would probably suffer professional
stigma and the loss of the opportunity to pursue her chosen
profession. NCBE is correct that no evidence in the record
supports a finding that, in the absence of preliminary relief,
Enyart would likely suffer professional stigma. But the district
court did not err in concluding that Enyart would likely lose
the chance to pursue her chosen profession. If she fails the
Bar Exam or scores too low on the MPRE to qualify for
admission, Enyart cannot be licensed to practice law in California. This conclusion is not speculative, but rather is prescribed by California law. See State Bar Act, Cal. Bus. &
Prof. Code § 6060(f) and (g) (requiring passage of general bar
exam and professional responsibility exam to qualify for
admission and licence to practice law).
[9] NCBE argues that Enyart can pursue her chosen profession without admission to the bar, because California Rule
of Court 9.42 allows Enyart to represent clients before passing
the bar exam so long as she is supervised by a licensed attorney. Even if Enyart is eligible to represent clients under Rule
9.42, the rule only allows her to undertake limited activities
under the supervision of an attorney. She is not allowed to
hold herself out as an attorney or appear on behalf of a client
in court without having a supervisor physically present, and
she must obtain a signed consent from all clients acknowledging her status as a “certified law student.” Cal. R. Court
9.42(d); see also Ninth Cir. R. 46-4 (permitting law students
to participate in appeals under similar circumstances). Assist-

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ing clients as a certified law student is simply not the same as
practicing law as an attorney. Enyart claims she is unable to
take advantage of the opportunity afforded by her two-year,
public-interest fellowship as a result of her inability to practice law. Because the fellowship is of limited duration, “[a]
delay, even if only a few months, pending trial represents precious, productive time irretrievably lost” to Enyart. See Chalk
v. U.S. Dist. Ct., 840 F.2d 701 (9th Cir. 1988) (holding that
teacher suffered irreparable harm when he was transferred
from classroom position to administrative role because of
AIDS diagnosis). Because the district court’s finding of irreparable harm in the form of Enyart’s likely loss of the ability
to pursue her chosen profession is supported by facts in the
record, it does not constitute an abuse of discretion. See Hinkson, 585 F.3d at 1261.
3.

Balance of Equities

[10] The district court compared the harm Enyart would
suffer in the absence of preliminary relief to the harm an
injunction would cause NCBE, and concluded that the equities weighed in Enyart’s favor. The district court rejected
NCBE’s argument that the injunction would cause NCBE
harm that cannot be undone. NCBE argues that providing
Enyart’s requested accommodations is expensive6 and poses
a security concern; however, as the district court noted,
Enyart posted two $5,000 injunction bonds that will cover
NCBE’s costs in the event it prevails on the merits at trial,
and the injunction minimized security risks by requiring
Enyart to use NCBE’s laptop rather than her own. Compared
to the likelihood that Enyart would suffer irreparable harm by
losing the chance to pursue her chosen profession in the
absence of an injunction, the potential harm to NCBE resulting from injunctive relief was minimal. The district court did
6

NCBE has conceded, however, that the accommodations requested by
Enyart would not cause an undue burden on NCBE.

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not abuse its discretion in holding that the balance of equities
favored Enyart.
4.

Public Interest

The district court held that “the public clearly has an interest in the enforcement of its statutes,” and concluded that the
public interest weighed in favor of granting the injunctions.
NCBE argues that the public’s interest in having statutes
enforced is not sufficient to support a grant of a preliminary
injunction.
[11] In enacting the ADA, Congress demonstrated its view
that the public has an interest in ensuring the eradication of
discrimination on the basis of disabilities. 42 U.S.C.
§ 12101(a)(9) (finding that “the continuing existence of unfair
and unnecessary discrimination and prejudice . . . costs the
United States billions of dollars in unnecessary expenses
resulting from dependency and nonproductivity”). This public
interest is served by requiring entities to take steps to “assure
equality of opportunity” for people with disabilities. See id.
§ 12101(a)(8). Although it is true that the public also has an
interest in ensuring the integrity of licensing exams, NCBE
never argued that allowing Enyart to take the MPRE and
MBE using a computer equipped with JAWS and ZoomText
would result in unreliable or unfair exam results. The district
court did not abuse its discretion in concluding that the issuance of these preliminary injunctions served the public’s
interest in enforcement of the ADA and in elimination of discrimination on the basis of disability.
III. Conclusion
For the foregoing reasons, we affirm the district court’s
February 4, 2010 and June 22, 2010 orders issuing preliminary injunctions requiring NCBE to permit Enyart to take the
MBE and MPRE using a laptop equipped with JAWS and
ZoomText.
AFFIRMED.