Jones v. National Conference of Bar Examiners et al
Filing
48
ORDER granting 2 Motion for Preliminary Injunction. Signed by Chief Judge Christina Reiss on 8/2/2011. (pam)
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DiSTRICT OF VER11"okr
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UNITED STATES DISTRICT COURT
FOR THE
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DISTRICT OF VERMONT
,C ER l(
DEANNA L. JONES,
Plaintiff,
v.
NATIONAL CONFERENCE OF
BAR EXAMINERS,
Defendant.
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Case No. 5:11-cv-174
ORDER GRANTING PLAINTIFF'S MOTION FOR
PRELIMINARY INJUNCTION
(Doc. 2)
This matter came before the court on July 22 and August 1, 2011 for an
evidentiary hearing on Plaintiff Deanna L. Jones's Motion for a Preliminary Injunction
(Doc. 2). Plaintiff alleges Defendant National Conference of Bar Examiners is violating
the Americans With Disabilities Act, 42 U.S.C. §§ 12181, et seq. ("ADA") by refusing to
allow Plaintiff to access the Multistate Professional Responsibility Exam ("MPRE") using
a computer equipped with screen access software. Plaintiff seeks an injunction requiring
Defendant to provide this and other accommodations. Defendant opposes Plaintiff s
motion, arguing that Plaintiff failed to engage in an interactive process to reach agreement
on the appropriate accommodations for the MPRE and created her own emergency by
untimely notifying Defendant of her requested accommodations. Defendant further
contends that Plaintiff cannot satisfy the requirements for a preliminary injunction and
asserts the accommodations Defendant has offered Plaintiff for the MPRE are
"reasonable accommodations" as a matter oflaw.
For the reasons set forth below, the court hereby GRANTS Plaintiff s request for
injunctive relief.
I. Factual Findings.
Based upon the preponderance of the evidence, the court makes the following
findings of facts:
1. Plaintiff is an approximately forty-four year old student in her third year of a four
year program at Vermont Law School ("VLS") who has applied to take the August
5,2011 MPRE exam.
2. Defendant is a non-profit organization with sixty-four full-time equivalent
employees based in Madison, Wisconsin. Defendant developed and owns the
MPRE and determines the format in which the MPRE is offered. Defendant has
contracted with ACT, Inc. ("ACT") to administer the MPRE in Vermont. A
passing score on the MPRE is a condition precedent to a lawyer's admission to
practice law in the Vermont. Defendant has developed and owns three other
standardized examinations: the Multistate Bar Examination ("MBE"), the
Multistate Essay Examination ("NIEE"), and the Multistate Performance Test
("MPT").
3. The MPRE is a sixty-question standardized test which tests an applicant's
knowledge of the law governing the conduct of lawyers, including the disciplinary
rules of professional conduct currently articulated in the American Bar Association
("ABA") Model Rules of Professional Conduct, the ABA Model Code of Judicial
Conduct, and controlling constitutional decisions and generally accepted principles
established in leading federal and state cases and in procedural and evidentiary
rules. The test is designed to last approximately two hours and is typically
administered as a "paper-and-pencil" examination. It is considered a "secure" test
in that the questions used may be re-used in future years so that scores may be
"equalized" over multiple test years. The test is offered in August, November, and
March, with November being the most popular month and August the least. The
vast majority oflaw students take the MPRE in their third year oflaw school. The
MPRE is a pass/fail exam although it is graded numerically. In Vermont, a score
of 80 is a passing score.
4. Defendant estimated that each MPRE exam costs Defendant approximately
$150,000 to $200,000, although it did not explain how this estimate was derived.
Defendant considers the MPRE a "high stakes" examination which requires a high
level of reliability and integrity. An applicant must timely register for and pay a
fee of $63 to take the exam. An applicant may take the NIPRE on multiple
occasions.
5. The MBE, like the MPRE, is a "secure" test. The MPT and MEE are not and
Defendant routinely offers these tests in an electronic format and also allows them
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to be taken with magnification software such as ZoomText and screen reader
software such as the Kurzweil3000. Defendant does not generally offer these
options with regard to the 1IIBE and MPRE because of its security concerns.
Instead, Defendant's protocols require it to furnish its secure tests in a locked case
which contains a laptop which Defendant has loaded with the test and the
specialized software. Through a pilot program in 2008 and 2009, Defendant has
had the opportunity to experiment with screen access software for visually
impaired persons and thus Defendant is not unfamiliar with the accommodations
Plaintiff has requested.
6. One security concern identified by Defendant is that a visually impaired test taker
under the surveillance of a one-on-one proctor could place a "thumb drive" in the
laptop and copy the test. Defendant, however, is able to disable the thumb drive
access on the laptop it provides to test takers and this security concern has never
come to fruition. Defendant has had several temporary security breaches with
paper and pencil administrations of the MPRE. It has never had a known security
breach with the computer-based format of the MPRE exam which it has offered on
several occasions.
7. Plaintiff has been legally blind since age five. She has atypical retinitis
pigmentosa with macular degeneration in each eye which deprives her of
centralized vision and prevents her from seeing anything other than objects in the
periphery of her vision. She has a very small island of vision that she can access
from the periphery by adjusting the angle at which she views an object. Her
limited peripheral vision is deteriorating. Indeed, Plaintiff s overall vision has
progressively worsened during her lifetime. Her distance visual acuity on April
20,2011 measured 8/400 (20/1000) in the right eye and 8/500 (20/1250) in the left
eye. For reading fluently, Plaintiff requires slightly more than 20 times (20x)
magnification to be able to function at near range with standard print. Plaintiff
carries a hand magnifier with fourteen times (14x) magnification with her at all
times.
8. Plaintiff describes her early education as a "rough ride" with her mother
attempting to reteach Plaintiff everything after school that Plaintiff was supposed
to learn in the course of a school day. Plaintiff credibly testified: "I got through
school and I worked really hard with mother every day. I would come home most
days and be a wreck. I was overwhelmed. Mother helped sort it out." Plaintiff
did not achieve any significant measure of academic success during this early time
period.
9. Upon graduation from high school, Plaintiff attended college for approximately
one year. During this time period, Plaintiff had access to large print and human
readers. She failed numerous classes and had a G.P.A. of .92. Plaintiff dropped
out of college and decided to pursue a career in food service and other enterprises
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in which she demonstrated both competence and leadership skills. During this
time period, Plaintiff worked with her optometrist, Stephen Feltus, and an assistive
technology expert for the visually impaired, Geoffrey Howard, in an effort to
accommodate her visual impairments. In addition to a hand held magnifier and the
use of human readers, Plaintiff used a closed circuit television ("CCTV") which
magnifies text.
1O. Plaintiff eventually became aware that she had other challenges beyond her
blindness and that she was unable to retain information like other people including
her older brother who is also legally blind. When a family member was diagnosed
with a learning disability, Plaintiff began to investigate whether a learning
disability might also be contributing to her own educational challenges.
11. In 2000, Plaintiff was evaluated by Shirley Bate, M.Ed., C.A.S. and Lorraine
Clodfelter, M.S., who administered to Plaintiff a battery oftests to determine
whether Plaintiff had a learning disability. Although Plaintiff was not initially
diagnosed with a learning disability, several learning deficiencies were identified.
A subsequent evaluation by Ms. Bate in August of 2003 concluded that Plaintiff
suffered from a reading disability due to deficits in phonological memory and
phonological awareness.
12. As part of her investigation of whether she had a learning disability, Plaintiff
consulted with Geoffrey Howard who recommended that Plaintiff use ZoomText,
which is a computerized magnification program, and Kurzweil 1000, which is a
text-to-speech software program that highlights in different colors words and
sentences on a computer screen, as well as an audio reading of the text that tracks
the highlighting. Plaintiff began working with both programs and immediately
demonstrated an ability to access written text in a manner that had previously
eluded her.
13.Plaintiff used the ZoomText and Kurzweil software and "for the first time felt
[she] could really access the information." She enrolled in college "and for the
first time in [her] life she could read anything [she] want[ed]" and "didn't feel
stupid." Prior to the use of this technology, the only book Plaintiff had ever read
completely was The Diary of Anne Frank which she used for every book report
she was assigned. Plaintiff achieved her first sustained educational success in
college and began to consider pursuing a law degree which had been a childhood
dream.
14. The Law School Admission Test ("LSAT") is a multiple choice and essay
examination which takes a half-day to complete under standard conditions. In
2007, Plaintiff requested accommodations for the LSAT pertaining solely to her
visual impairment. She requested triple time for the examination, but was granted
only double time which she did not fully use. Plaintiff was allowed to use a
computer for the essay portion of that exam. She had a reader for the multiple
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choice section of the exam. Plaintiff found the LSAT experience frustrating and
does not feel she performed to the full extent of her abilities. She recalls the
experience as a very long day in which she was "just trying to survive." She
received a score of 148 which is in the 37th percentile.
15. VLS is the only law school to which Plaintiff applied. Throughout law school, in
addition to other accommodations, Plaintiff has used and continues to use a
Windows XP laptop computer equipped with ZoomText 9.12 and Kurzweil3000
v. 11.05 for all of her lengthy reading assignments and to read all examination
materials. The screen-access software enables Plaintiff to listen to a vocalization
of the electronic text, visually track highlighted lines and words as they are
vocalized, magnify the displayed text, and navigate within the text in a manner that
is similar to the access provided by sighted reading. In addition to highlighting
text, the software allows the user to obtain precise voice adjustments and increase
and decrease reading speed.
16.Plaintiff uses screen-access software as her primary reading method and is very
proficient in its use. It is the most effective method by which she may access
lengthy written text. Plaintiff has been able to perform well in law school with its
assistance, although she still faces challenges not encountered by her sighted peers.
Even with screen-access software, Plaintiff requires additional time to navigate
through text and complete a written examination. She also requires the ability to
take notes so that she can repeat information she has heard and more readily recall
it.
17. The ZoomText software program was first released in 1998 and is currently the
most popular large print software program nationwide for the visually impaired.
The Kurzweil1000 software program was first released in 1978 and was initially
marketed only to the visually impaired. The Kurzweil3000 program is currently
marketed to both the visually impaired and to individuals with dyslexia.
18.As part of Plaintiff s request for accommodations with regard to the MPRE, the
Stem Center, which is a professional entity that, among other things, provides
diagnostic testing, assessments, and evaluations for learning disabilities, performed
a comprehensive analysis of Plaintiffs reading and writing abilities to determine
whether she might have dyslexia or some other learning disorder. The Stem
Center found that Plaintiffs cognitive abilities fell solidly in the average range
with some below average and above average variations. The Stem Center
concluded that Plaintiff has a learning disorder that consists of information
processing weaknesses specific to visual processing speed and auditory attention
and memory systems, as well as weaknesses in phonological decoding/encoding,
grammar, and some aspects of high level verbal reasoning. Plaintiffs auditory
memory deficiency impairs her ability to retain auditory information for a
sufficient time period to effectively process it. Notwithstanding her blindness,
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Plaintiff is a visual learner who most effectively processes information by seeing it
in a magnified version and having words and sentences highlighted through the use
of color and spoken aloud by a synchronized voice. In combination, the Stem
Center found the characteristics of Plaintiff s learning disorder significantly
compromise her listening and reading comprehension, as well as the rate at which
she reads and writes. Defendant does not challenge the accuracy of this diagnosis.
19. The court finds that the Stem Center has properly diagnosed and explained the
nature and extent of Plaintiff s learning disorder and has identified
accommodations that are both preferred and necessary for Plaintiff including the
use of a computer with ZoomText Magnifier/Reader and Kurzweil 3000 screen
reader so that Plaintiff may read and listen to written information simultaneously.
The Stem Center evaluation also provides support for Plaintiff s other requested
accommodations.
20. The MPRE 2011 Information Booklet states that all requests for accommodations
are reviewed by qualified professionals.' The booklet lists the materials that must
accompany each request for accommodations including the applicant's own
written request for accommodations, and current documentation by the applicant's
clinician, physician, or other professional with training and experience appropriate
to diagnose and treat the applicant's disability. The documentation must include a
brief statement of the professional's qualifications, detailed results from a
complete, appropriate diagnostic examination, and an assessment of the
functionality-limiting manifestations of the conditions for which accommodations
are needed. The documentation must contain a detailed diagnosis, the treatment
provided, and the last date of treatment or consultation. The professional must
provide an explanation of the need for the requested accommodation and how the
functional limitation of the disability relates to test-taking. All such
documentation must reflect the current state of the applicant's disability. The
applicant must also enclose documentation regarding accommodations that have
been made in the past, especially with regard to other standardized exams.
21. For a cognitive disability such as a learning disability, the MPRE applicant must
also submit a neuropsychological or psycho educational evaluation with reports of
aptitude assessments using a comprehensive battery, a complete and
comprehensive achievement battery including current level of academic
functioning in relevant areas, scores from all subtests, an assessment of
information processing using appropriate instruments, and other appropriate
assessment measures. All tests must be reliable, valid, and standardized for use
] Defendant argues that it did not have time to obtain expert witnesses for the court's
preliminary injunction hearing but did not call any of the qualified professionals who reviewed
Plaintiffs Accommodations Request.
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with an adult population and must be provided in standard score and percentile
formats.
22. The visually impaired MPRE applicant who seeks accommodations based upon
that disability must submit a report of a complete ocular examination relevant to
the condition for which accommodations are sought. The examination report must
include the current diagnosis (including whether the condition is progressive or
stable), best corrected visual acuities for distances and near vision, all test results, a
description of each functional limitation, a discussion of the extent to which the
limitation has been or can be addressed through corrective devices, and a specific
recommendation and rationale for accommodations. If a diagnosed condition is
purported to affect reading speed, further test results are required. Documentation
of visual disabilities is generally required to be current within one year.
23. Plaintiff first notified Defendant of her requested accommodations by letter dated
June 16,2011 (the "Accommodations Request"), the same day she received
Stephen Feltus's report. Plaintiffs five-page Accommodations Request included
reports from Stephen Feltus, Geoffrey Howard, the Stem Center and Plaintiffs
retinal specialist, Eliot L. Berson, M.D. of Harvard Medical School and the
Massachusetts Eye & Ear Infirmary. There is no evidence that Plaintiffs
submission was incomplete in any respect.
24. Plaintiffs Accommodations Request was filed in advance of the July 5, 2011
deadline for such requests. Had Plaintiff submitted her Accommodations Request
in a piecemeal fashion, it would not have been addressed until her submission was
complete. While Plaintiff could have submitted her Accommodations Request as
early as November 2010,2 and was contemplating taking the August 5, 2011 exam
as early as January of this year, she did not have the required documentation to
pursue an accommodations request in January of2011. In the spring of2011, she
acted diligently and in good faith to obtain the extensive materials necessary for
her Accommodations Request. She then submitted those materials as soon as
practicable after their receipt. Any delay was attributable to the difficulty of
scheduling appointments around Plaintiffs law school and exam schedule, and in
the preparation of the reports by the experts for submission.
25. Plaintiffs Accommodations Request sought the following accommodations: (a)
the use of a Windows XP laptop computer equipped with ZoomText 9.12 and
Kurzweil3000 v. 11.05 to read all examination materials; (b) an opportunity to test
the laptop with sample MPRE questions in electronic format; © the use of
identified peripheral devices with the laptop during the test; (d) a talking clock; (e)
triple time for the examination with two 15-minute breaks; (f) a separate testing
room; (g) a scribe to fill out administrative forms and answer sheets; (h) sundries,
Defendant has not established that its forty-eight page MPRE 2011 Information Booklet
was available at that time.
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including a black marker, scrap paper, and a magnifying glass; and (I) water and a
snack for the six-hour-plus test.
26. By letter dated June 17, 2011 which was sent via e-mail and regular mail,
Plaintiffs attorney contacted Defendant's attorney and asked Defendant to
undertake an individualized inquiry with regard to Plaintiffs requested
accommodations. Counsel noted that if Plaintiffs requests could not be
accommodated, litigation would be required and thus counsel requested
Defendant's response by the close of business on June 30, 2011. Defendant's
counsel had been aware of Plaintiff s likely request for accommodations on the
MPRE in early June. Defendant's counsel did not formally respond to the June
17th letter and to this date Defendant has not made a final decision with regard to
Plaintiff s requested accommodations. At no time has Defendant requested that
Plaintiff submit to an independent evaluation of her disabilities and the appropriate
accommodations for them. Defendant does not claim that additional time may
alter its position with regard to Plaintiff s requested accommodations. Instead, it
has stated that it will consider them further.
27. On June 29,2011, Defendant, through the test administrator ACT, granted
Plaintiffs request for the following accommodations: triple the time for the
examination with two fifteen minute breaks; a separate testing room; a scribe to fill
out administrative forms and answer sheets; and water and snack. Defendant
further offered Plaintiff the following accommodations: the MPRE exam in
Braille, as an audio CD, in enlarged print, the use of a CCTV, and the provision of
a human reader. Defendant advised Plaintiff that the other accommodations she
requested were not generally available on the MPRE, but that Defendant would
like to work with Plaintiff to determine acceptable alternatives. Plaintiff
responded that same day, noting that Defendant had been unspecific regarding the
available alternative accommodations and asking what would be offered. Plaintiff
asked that Defendant respond by the close of business. Defendant did not do so.
28. Bye-mail dated July 13,2011, Defendant offered Plaintiff the following additional
accommodations: a marker, a talking clock, and scratch paper on which she could
take notes. Defendant again offered to discuss Plaintiffs requested
accommodations, but did not provide any indication that they would be granted
now or in the future. Although Defendant generally offers the MPRE with either
18 point or 24 point font to accommodate requests for large print, Defendant is
now willing to provide the MPRE to Plaintiff in 72 point font.' Defendant has
identified no additional accommodations that it would be willing to offer Plaintiff.
29. Plaintiff is insufficiently proficient in Braille (which she first learned in 2007) to
use it for a standardized test. She has never done so previously and does not use
This font produces a poster-size examination booklet which still cannot fit a single
question on a single page.
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Braille as a routine method of reading. Were Plaintiff to take the MPRE in Braille,
it would test her ability to decode Braille as opposed to her knowledge of a
lawyer's professional responsibility obligations.
30. Plaintiff has used a CCTV for many years to access discrete pieces of written text
such as recipes, invoices, and mail. She does not use a CCTV for lengthy reading.
In law school, Plaintiff has used a CCTV in order to access Black's Law
Dictionary. Although a CCTV provides Plaintiff with the desired magnification, it
cannot display more than a small section of text and requires considerable motion
in order to navigate through the text. If Plaintiff uses a CCTV over an extended
period of time, she experiences eye fatigue and something akin to motion sickness.
Because the visual field offered by a CCTV at the magnification required by
plaintiff is so limited, a CCTV system is not an efficient or effective means for
Plaintiff to scan, search, and read a document that is more than a couple of
paragraphs. It also provides inadequate cues as to format, orientation, key words,
and punctuation that Plaintiff needs to accommodate her learning disability.
31. Plaintiff has never been able to perform well on exams with a human reader as she
has no context and does not have any way of determining where she is in the
question and what she will need to do when the question is finished. Plaintiff
needs to see the format of the question and be able to navigate through it herself,
going back to phrases that she needs to re-read, in order to fully understand the
text. Plaintiff has used digital audio and has found it cumbersome. She cannot
read the tracks displayed on the equipment and finds that to re-access portions of
the question is time consuming and confusing. Similarly, when Plaintiff uses a
human reader, she loses the ability to freely and automatically navigate through
text, because she has no visual reference which, in tum, impairs her ability to put
what she is hearing into context, and decreases her ability to read and comprehend
the material. Plaintiffs reliance on the visual presentation of text in order to
discern context cannot be achieved through the use of a digital CD or a human
reader. Even when used in conjunction with a magnified visual text, without
highlighting, Plaintiff easily loses her place in the text and cannot navigate through
it with either automaticity or fluidity.
32. Plaintiff filed her complaint and motion for preliminary injunction on July 1, 2011.
Although Defendant has complained that the court scheduled the preliminary
injunction motion hearing too quickly, Defendant had time to file a lengthy written
opposition as well as a comprehensive twenty-six page motion for summary
judgment with numerous exhibits and an accompanying 38-paragraph Statement of
Undisputed Facts. Defendant has also filed a response to the U.S. Department of
Justice's Statement ofInterest. The court finds that Defendant has had an adequate
opportunity to prepare for and respond to the preliminary injunction motion.
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33. Defendant has already adjusted at least one of the accommodations it offers the
visually impaired. It has decided to no longer use a human voice on its audio CD
finding a synthetic voice preferable. It has also accelerated the speed of the CD
based upon feedback from visually impaired test takers. As noted, Defendant has
offered screen access software to other takers of the MPRE and routinely offers
computerized format exams on its non-secure tests. There is no question that
Defendant is able to offer the accommodations that Plaintiff has requested.
34. Plaintiff s requested accommodations are supported by detailed expert opinions
authored by individuals qualified to opine that such accommodations are necessary
for Plaintiff to perform on a written examination commensurate with her abilities.
With the exception of the Stem Center, Plaintiffs expert witnesses are her treating
professionals. Plaintiff has expressed a legitimate concern that without her
requested accommodations, the NIPRE will primarily test her ability to work
through her disabilities and that she will not be able to compete on an equal basis
with non-disabled test takers. Plaintiff s expert witnesses support this conclusion.
Moreover, Plaintiffs experts have credibly collectively explained in detail why
any other accommodation or combination of accommodations offered by
Defendant would be inadequate.
35. Defendant proffered no evidence that any of the accommodations that it has
offered to Plaintiff alone, or in combination, will allow Plaintiff to access the
MPRE exam on an equal footing with her non-disabled peers. Indeed, Defendant
has apparently undertaken no individualized analysis with regard to the
accommodations that are reasonable for Plaintiffs disabilities, or that would best
ensure that Plaintiff s aptitude rather than her ability to cope with her disabilities
are measured by the MPRE.
36. Plaintiff seeks to take the MPRE exam on August 5, 2011 because she has paid for
it, and set aside time this summer to study for it. She has also purchased sample
questions and study guides. The November and March exam dates conflict with
Plaintiffs law school schedule which requires her full concentration and time
commitment. In order to properly prepare for the test during November and
March, Plaintiff would have to readjust her class work load to allow sufficient time
for studying and other preparation. This, in tum, may delay her graduation from
law school and may impair her law school performance.
37. Plaintiff seeks to avoid having to take the MPRE in August of 20 12, approximately
one month after she takes the Vermont Bar Exam as she will be unable to
adequately prepare for both exams at the same time. In addition, if Plaintiff fails
the MPRE exam in July of2011, she will not be able to take it again until
November, almost six months after her expected graduation from law school.
38. Plaintiffs requested software may be loaded onto a lap top by a qualified person
using a relatively simple process in approximately two hours and twenty minutes.
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Significantly less time is required if the Microsoft updates have already been
performed. In that event, the programs may be loaded in approximately thirty
minutes. Plaintiffs expert, Geoffrey Howard, estimates that the cost to Defendant
to make Plaintiffs requested computer software accommodations is approximately
$3,500.
39. Defendant estimates the cost it will incur to accommodate Plaintiffs computer
software requests is approximately $5,000. Defendant further estimates the cost to
accommodate similar requests on the same basis is approximately $300,000 per
year although Defendant concedes that this estimate is simply based upon the
multiplication of the estimated $5,000 by an anticipated sixty annual requests.
According to Defendant's president, in addition to the expense, accommodation of
Plaintiffs requests would be "a significant time demand and a distraction from
what [Defendant's] staff would ordinarily be doing."
40. On the Form 990 which Defendant filed with the I.R.S. as an organization exempt
from income tax, Defendant reported "program service revenue" in excess of $12
million dollars in 2008 and in excess of$13 million dollars in 2009. Defendant's
"net assets or fund balances" were reported to be in excess of $45 million in 2008
and in excess of$50 million in 2009. Defendant has not filed a Form 990 for
2010.
41. Plaintiff is willing to post a bond or other security in an appropriate amount to
compensate Defendant in the event Defendant is found to have been wrongfully
enjoined.
42. On August 1,2011, Defendant advised the court that it needed a decision by noon
on August 2, 2011 in order to comply with any court order requiring it to offer
Plaintiffs requested accommodations for the August 5, 2011 MPRE.
II. Conclusions of Law and Analysis.
A. Standard of Review.
In Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008), the Supreme
Court articulated the standard for the issuance of a preliminary injunction:
A plaintiff seeking a preliminary injunction must establish that he is likely
to succeed on the merits, that he is likely to suffer irreparable harm in the
absence of preliminary relief, that the balance of equities tips in his favor,
and that an injunction is in the public interest.
Id. at 20 (citations omitted). The Second Circuit has described the standard as requiring a
party seeking a preliminary injunction to show "(a) irreparable harm and (b) either (1)
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likelihood of success on the merits or (2) sufficiently serious questions going to the merits
to make them a fair ground for litigation and a balance of hardships tipping decidedly
toward the party requesting the preliminary relief." Jackson Dairy, Inc. v HP. Hood &
Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979). Recently, the Second Circuit ruled that the
"serious questions" standard is still viable after Winter. See Citigroup Global Mkts., Inc.
v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30,38 (2d Cir. 2010).
Where, as here, a party seeks an injunction that is mandatory in nature in that it
will alter rather than maintain the status quo, he or she must satisfy a more rigorous
standard and demonstrate a "clear or substantial likelihood of success on the merits."
Doninger v. Niehoff, 527 F.3d 41,47 (2d Cir. 2008); Rossini v. Republic ofArgentina,
2011 WL 2600404, at *2 (2d Cir. July 1,2011) (citing Citigroup Global Mkts., 598 F.3d
at 35 n. 4).
B. The Requirements of the ADA.
Congress enacted the ADA "to provide a clear and comprehensive national
mandate for the elimination of discrimination against individuals with disabilities." 42
U.S.C. § 12l0l(b)(l). In doing so, Congress recognized that "discrimination against
individuals with disabilities persists in such critical areas as employment ... education ..
. [and] communication" and that "the continuing existence of unfair and unnecessary
discrimination and prejudice denies people with disabilities the opportunity to compete on
an equal basis and to pursue those opportunities for which our free society is justifiably
famous, and costs the United States billions of dollars in unnecessary expenses resulting
from dependency and nonproductivity." 42 U.S.C. §§ 12101(a)(3), (a)(8).
The ADA requires Defendant, as an entity that offers a professional licensing
examination, 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. The regulations that implement this mandate provide that Defendant:
must ensure that the examination is selected and administered so as to best
ensure that, when the examination is administered to an individual with a
disability ... the examination results accurately reflect the individual's
aptitude or achievement level ... rather than reflecting the individual's
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impaired sensory, manual, or speaking skills (except where those skills are
the factors that the examination purports to measure).
28 C.F.R. § 36.309(b)(1)(I) (emphasis supplied). The regulation further states:
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.
28 C.F.R. § 36.309(b)(3). The regulations state that the "[a]uxiliary aids and services
required by this section may include ... Brailled or large print examinations and answer
sheets or qualified readers for individuals with visual impairments[.]" 28 C.F.R. §
36.309(b)(3). The ADA provides that for "individuals with visual impairments," the term
"auxiliary aids and services" includes "qualified readers, taped texts, or other effective
methods ofmaking visually delivered materials available[.]" 42 U.S.c. § 12102(1)(B)
(emphasis supplied). Defendant concedes that these lists of auxiliary aids are illustrative,
not exhaustive.
Defendant neither claims that 28 C.F.R. § 36.309(b)(I)(I) which contains the "best
ensures" standard is inapplicable, nor argues that it is arbitrary or capricious. Instead it
contends that the only reasonable interpretation of the "best ensure" standard is to find
that it employs the "reasonable accommodation" standard used in implementing the
Rehabilitation Act of 1973 and Title I of the ADA. Fink v. N
r: City Dep 't ofPersonnel,
53 F.3d 565 (2d Cir. 1995), the Second Circuit case which Defendant cites as mandating
this result, was decided under Section 504 of the Rehabilitation Act. Fink does not
mention, let alone address, either the "accessibility" standard of 42 U.S.c. § 12189 or the
"best ensure" standard of28 C.F.R. § 36.309(b)(1)(I). In Fink, the Second Circuit
affirmed the district court's grant of summary judgment which addressed plaintiffs
challenge not to the accommodations provided by the defendant "but to the matter in
which two reader-assistants carried out their duties." Fink, 53 F.3d at 567. Noting that
there was no allegation that the defendant was responsible for the readers' faulty
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performance, the Second Circuit ruled that the district court had properly concluded that
the "disturbances of which the plaintiffs complained were not the result of discrimination
prohibited by the [ADA], but rather 'random occurrence which, by chance, adversely
affect' disabled employees or candidates." Id. at 567-68. Fink noted that defendant
demonstrated without contradiction that they made reasonable accommodations. In light
of the absence of any discussion of either the meaning of "accessibility" or the proper
interpretation of the "best ensures" standard, the court finds Fink does not control the
court's determination of the very different legal challenges and factual issues presented
here.
The U.S. Department of Justice has submitted a Statement of Interest, pursuant to
28 U.S.c. § 517 (Doc. 32), contending that Defendant is wrong in its choice of standards
and that the "best ensure" standard indisputably governs this case and is not
interchangeable with a "reasonable accommodation" standard. For the following reasons,
the court agrees.
Both the ADA and its implementing regulations are designed to allow persons with
disabilities to compete on an equal basis with non-disabled persons. In determining how
this equality might best be achieved, Congress required entities offering licensing
examinations to do so in a place and manner that is "accessible" to disabled persons or to
offer "alternative accessible arrangements" for such individuals. See 42 U.S.C. § 12189.
The term "accessible" is not defined and may mean accessible at any cost or burden, the
best access available under the circumstances, what is "reasonably accessible" applying
some form of balancing test, or accessible meaning capable of being accessed regardless
if the accessibility offered is effective or meaningful. Each of these definitions is
arguably reasonable without statutory guidance for determining "accessibility." The
court thus finds 42 U.S.C. § 12189's use of the term "accessible" ambiguous in terms of
what it requires.
"If the intent of Congress is clear, that is the end of the matter; for the court, as
well as the agency, must give effect to the unambiguously expressed intent of Congress."
Chevron US.A. Inc. v. Natural Res. De! Council, Inc., 467 U.S. 837, 842-43 (1984).
14
However, if congressional intent is unclear or ambiguous, then the court must decide
whether "the agency's answer is based upon a permissible construction of the statute."
Id. at 843. Where, as here, Congress has made an "express delegation of authority to the
agency to elucidate a specific provision of the statute by regulation, such regulations are
given "controlling weight unless they are arbitrary, capricious, or manifestly contrary to
statute." Id. at 844.
This court, like several other courts," concludes that 28 C.F .R. § 36.309(b)(1 )(i) is
neither arbitrary nor capricious, nor manifestly contrary to the statute it implements. The
court thus concludes that a "best ensure" is entitled to controlling weight and governs the
outcome in this case. A "best ensure" standard not only prevents an entity such as
Defendant from directly or indirectly providing "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 and to reach the same level of
achievement as that provided to others[,]" 28 C.F.R. § 35. 130(b)(1), it also reflects the
special challenges to the establishment of a level playing field in the administration of
professional exams. Unlike in the employment sector where a "reasonable
accommodation" may be adjusted over time, a professional examination is generally a
one-time event wherein the accommodations either ensure equality or do not. Perhaps for
that reason, the ADA's "reasonable accommodation" requirement under Title I was not
used by Congress in enacting 42 U.S.C. § 12189 under Title III which requires
"accessibility" in the offering of professional and licensing exams.'
4 The recent trend of authority supports a conclusion that the "best ensures" standard
applies. See Enyart v. Nat 'I Conference ofBar Examiners, 630 F.3d 1153, 1163 (9th Cir. 2011)
(applying a "best ensure" standard as the means of ensuring an individual with a disability has an
equal opportunity to demonstrate her knowledge and abilities to the same degree as other non
disabled individuals taking the MPRE); see also Bonnette v. Dist. ofColumbia Court ofAppeals,
2011 WL 2714896, at *19 (D.D.C. July 13,2011); Elder v. Nat 'I Conference ofBar Examiners,
2011 WL 672662, at *6 (N.D. Cal. Feb. 16,2011).
The "best ensure" standard was adopted from the Department of Education's
requirements under Section 504 of the Rehabilitation Act governing admissions examinations in
post-secondary institutions. 28 C.F.R. pt. 36, app. B at 715 (2009) (referring to 34 C.F.R. §
104.42(b)(3). Similarly, Section 12112(b)(7) of Title I of the ADA requires that tests
5
15
Having determined that Defendant must grant accommodations to Plaintiff that
"best ensure" that her knowledge of the law governing a lawyer's ethical and professional
obligations is tested by the MPRE rather than the extent to which Plaintiff is able to
overcome her uncontested disabilities, the court turns to the question of whether
Defendant's proposed accommodations are "reasonable accommodations" as a matter of
law such that no further inquiry is warranted.
It cannot reasonably be disputed that what renders an examination "accessible" to
one disabled individual may not render it "accessible" to another. Even Defendant
concedes that Plaintiff has two disabilities that require accommodations. None of the
"auxiliary aids" Defendant has offered Plaintiff to date fully or reasonably address her
learning disorder. Rather than make an individualized inquiry regarding Plaintiffs needs,
Defendant has taken the position that its menu of accommodations is "reasonable" even
though the "menu" in question is designed only for the visually impaired. Although
Defendant is correct in noting that neither Plaintiff s preferences nor her primary reading
method need be accommodated, it remains an individualized inquiry, and not a one-size
fits-all approach that drives the court's analysis.
Whether the standard is "reasonable accommodation" or "best ensures," what must
take place is a "fact specific, individualized analysis of the disabled individual's
circumstances." Wongv. Regents ofUniv. ofCal., 192 F.3d 807,818 (9th Cir. 1999); see
also D'Amico v. NYS. Bd. ofLaw Examiners, 813 F. Supp. 217, 221 (W.D.N.Y. 1993)
("An individual analysis must be made with every request for accommodation[.]"). For
this reason, the court rejects Defendant's invitation to decide the case based on what
Congress, the U.S. Department of Justice, other courts, and advocacy groups for the blind
have indicated are reasonable and appropriate in other cases for other individuals
presenting different disabilities.
"concerning employment" be selected and administered "in the most effective manner to ensure"
that the test reflects the disabledjob applicants' or employees' aptitude rather than their
disabilities. The "best ensure" standardthus reflects the importance of an equal opportunity
where an examination determines whether a disabled person will even be allowed to enter the
playing field, much less compete effectively on it with his or her non-disabled peers.
16
The court also rejects the Defendant's suggestion that the court adopt a Maryland
district court's analysis in denying a request for injunctive relief for visually impaired
applicants for the MPRE who sought to use screen access software. In Elder v. NCBE,
No. 10-1418 (D. Md. 2010), Trs. at 73 (Mew Decl. Ex. 5), based upon what it
characterized as an inadequate factual record, the court orally ruled that an
accommodation that provides "reasonable accessibility," a term not used by Congress,
satisfies the "best ensures" standard. It further found sufficient accommodations that "are
historically sound, [and have] been accepted by [DOJ] in other ways; [and] which ...
show that [Defendant] is acting entirely reasonably to make the examinations accessible."
Id.; see also Elder v. National Conference ofBar Examiners, No. 1:10-cv-01419-JFN,
Doc. No. 49 (D. Md. July 13,2010) (offering a one page written opinion to supplement
the court's oral ruling and denying both NCBE's motion to dismiss and plaintiffs request
for injunctive relief). The court has found no authority, and Defendant cites none, that
would allow a "historically sound" accommodation that has been used by DOJ in other
cases to determine the outcome of what accommodations comport with either the "best
ensure" standard or a "reasonable accommodations" standard in Plaintiffs case.
In any event, even were the court to apply a "reasonable accommodations"
standard to Plaintiff s request for injunctive relief in this case, a different outcome would
not result. Under either standard, Defendant must offer Plaintiff an even playing field in
accessing the MPRE. See Felix v. New York City Transit Authority, 324 F.3d 102, 107
(2d Cir. 2003) ("The ADA mandates reasonable accommodation of people with
disabilities in order to put them on an even playing field with the non-disabled[.]") .
C. Whether a Preliminary Injunction Should be Granted.
The court has already identified the requirements for the extraordinary remedy of a
preliminary injunction. It now turns to whether Plaintiff has satisfied those exacting
standards with regard to her requested accommodations on the August 5, 2011 NIPRE.
1.
Irreparable Harm.
Irreparable harm is "the single most important prerequisite for issuance of a
preliminary injunction." Rodriguez ex rel. Rodriguez v. DeBuono, 175 F.3d 227,234 (2d
17
Cir. 1998) (quoting Bell & Howell: Mamiya Co. v. Masel Supply Co. Corp., 719 F.2d 42,
45 (2d Cir. 1983)). "To satisfy the irreparable harm requirement, [p]laintiff1 ] must
demonstrate that absent a preliminary injunction [she] will suffer an injury that is neither
remote nor speculative, but actual and imminent, and one that cannot be remedied if a
court waits until the end of trial to resolve the harm." Grand River Enter. Six Nations,
Ltd. v. Pryor, 481 F.3d 60, 66 (2d Cir. 2007) (internal quotation marks omitted).
In assessing the possibility of irreparable harm, courts "'must not adopt a
categorical or general rule or presume that the plaintiff will suffer' such harm, but instead
must actually consider the injury the plaintiff will suffer ifhe or she loses on the
preliminary injunction but ultimately prevails on the merits, paying particular attention to
whether the 'remedies available at law, such as monetary damages, are inadequate to
compensate for that injury." Salinger v. Colting, 607 F.3d 68,80 (2d Cir. 2010) (quoting
eBay, Inc. v MercExchange, L.L.c., 547 U.S. 388, 391, 393-94 (2006)).
In this case, Plaintiff will suffer irreparable hann if she is not allowed to take the
August 5, 2011 MPRE exam with her requested accommodations because if she takes the
test without them, her ability to work through her disabilities rather than her knowledge
of the subject matter of the test will be the aptitude tested. In effect, Plaintiff will be
required to take a "high stakes" examination in discriminatory circumstances.
In addition, to require Plaintiff to take the MPRE during the school year will
interfere with her abilities to attend to her law school studies and perform to the best of
her ability. This, in tum, may affect the employment opportunities available to Plaintiff
as potential employers evaluate her law school performance,
Finally, Plaintiff credibly testified that she has already invested considerable time,
money, and effort in studying and otherwise preparing for the August 5, 2011 MPRE.
There is no dollar amount that the court may readily ascribe to either Plaintiff s
expenditure of these efforts, or to the loss of their potential fruits in the form of a passing
score on the MPRE. A passing score on the MPRE is a condition precedent to Plaintiff s
ability to practice law in Vermont and every MPRE test she does not take is a lost
opportunity to satisfy that requirement prior to her graduation.
18
Although Defendant is correct in noting that mere delay in taking a professional
entrance or licensing exam is generally not considered irreparable harm, here there is no
evidence that time will make any significant difference with regard to the
accommodations Defendant is willing to offer Plaintiff. In other words, Plaintiff is likely
to face the same obstacles in November, March, and July that she is facing now.
Accordingly, while Plaintiff is losing opportunities to take the MPRE, there is no
countervailing benefit she obtains through the passage of time. Indeed, the passage of
time is likely to exacerbate her harm as it may delay completion of her law school
education and may delay her entry into her chosen professional field.
Defendant's assertion that Plaintiff could take the MPRE without her requested
accommodations and still pass is not commensurate with a "best ensure" standard and is
inconsistent with the objectives of the ADA. See Bonnette, 2011 WL 2714896, at *19
(the fact that plaintiff "could take the [exam] 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; [plaintiff] 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.").
In Enyart, Bonnette, and Elder, the courts all found that the plaintiffs established a
likelihood of irreparable harm if they could not take the exam with the specific
accommodations they sought. In Enyart, the court found a likelihood of 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, 630 F.3d at 1165. The
plaintiff in that case also argued that she faced irreparable injury as a result ofNCBE's
violation of the ADA; the court did not address this argument, finding that plaintiff
demonstrated irreparable harm in the form of loss of opportunity to pursue her chosen
profession.
In Bonnette, the plaintiff contended that she would either have to take the exam
under discriminatory conditions or wait until a later administration while her claim is
litigated, and any delay in taking the MBE deprived her of time to practice her chosen
19
profession. The court held that further delay would be more irremediable, not less, and
found it significant that plaintiff had devoted substantial time and effort to preparing for
the exam which would be effectively wasted if she had to wait until a later date.
In Elder, the court articulated the choice confronting the plaintiff as either taking
the exam under discriminatory conditions and risk failure and delay his ability to practice
law, or postpone taking the exam until after a determination on the merits and likewise
suffer a delay in his ability to practice law. Under either scenario, the court found that
plaintiff would be likely to suffer irreparable harm. The Elder court also held that having
plaintiff take the exam without a computer equipped with software would force him to
take the exam under discriminatory circumstances, which would, in and of itself, cause
him irreparable harm. See Elder, 2011 WL 672662, at *10 (citing Chalk v. Us. Dist.
Court Cent. Dist., 840 F.2d 701 (9th Cir. 1988)). There, too, the court considered the
investment of substantial time and money in preparing for the test as part of the
irreparable harm analysis.
Almost two decades earlier, the D 'Amico court anticipated these grounds for
finding irreparable harm:
While plaintiffs injury is related to her ability to be admitted to practice
law and secure legal employment and income, it goes well beyond these
monetary considerations. Plaintiffs injury is the result of ongoing
discrimination based on her medical disability. The issuance of injunctive
relief is appropriate when a disabled person loses the chance to engage in a
normal life activity. But for plaintiffs disability and the Board's reluctance
to allow her to take the exam over a four day period, she would have an
equal opportunity to be admitted to the practice of law.
D'Amico, 813 F. Supp. at 220 (citations omitted); see also AgranojJ v. Law School
Admission Council, Inc., 97 F. Supp. 2d 86, 88 (D. Mass. 1999) (agreeing with plaintiff
that he will suffer irreparable harm because he would lose the time and effort he had spent
in a preparatory course and with a tutor, preparing for a particular administration of the
LSAT, and that taking exam at later date would prejudice his applications at law schools);
cf Maczaczyj v. State ofNY., 956 F. Supp. 403, 408 (W.D.N.Y. 1997) (applying
D 'Amico to case where student was denied admission to master's program, as "[t]his
20
exclusion will most likely affect plaintiff s ability to engage in the future employment of
his choice."); but see Christian v. NY. State Bd. ofLaw Exam 'rs, 1994 WL 62797, at *2
(S.D.N.Y. Feb. 23, 1994) (finding that plaintiff would not be irreparably harmed if
application for injunctive relief was to be denied. Plaintiff suffered from undetermined
problem, requested special accommodations, was already admitted to practice law in New
Jersey, and court found that money damages could compensate plaintiff for loss of
earnings and anguish because of the delay in taking the New York bar exam). The courts
finds Enyart, Bonnette, Elder, and D 'Amico persuasive.
Because the court finds that an award of damages will not compensate Plaintiff for
the lost opportunity to take the MPRE exam on August 5, 2011, and further finds that
Plaintiff will suffer immediate, irreparable, and non-speculative harm in the loss of her
preparatory and studying efforts, the time she incurred during the school year to amass
the considerable documentation she needed for her requested accommodations, and the
ensuing need to take the MPRE either during the school year with the attendant impact on
her studies, or after she graduates with the attendant impact on her success on the bar
exam, the court concludes that Plaintiff has sufficiently demonstrated irreparable harm to
warrant preliminary injunctive relief.
2.
Likelihood ofSuccess ofthe Merits.
Plaintiff has also proffered evidence that establishes a clear and substantial likelihood
that not only are her requested accommodations ones that will best ensure that her
knowledge of professional ethics is properly tested, but they are also ones that are
reasonable under the circumstances based upon an individualized inquiry. Plaintiffs
experts collectively offered credible and persuasive testimony in support of Plaintiff s
requested accommodations and fully explained why Defendant's proffered
accommodations are inadequate. Plaintiff s primary and most effective means of
accessing lengthy written material is achieved only through her use of screen access
software that she has consistently and successfully used over the past eight years.
Plaintiff has used each of Defendant's proposed accommodations and has demonstrated
that they are not effective for her because they do not allow her to effectively and fluidly
21
access written material, and because they do not reasonably accommodate her dual
disabilities.
Defendant, who does not dispute that Plaintiff has both a visual and learning
disability, offered no countervailing evidence and has not even evaluated its own
proposed accommodations for their reasonableness or efficacy in Plaintiff s case. In such
circumstances, a court should give considerable weight to the opinions of Plaintiffs
treating professionals who opine that the accommodations Plaintiff seeks are the only
ones that will allow her to fully access the MPRE. See D'Amico, 813 F. Supp. at 223
("[I]n a case where there is no medical evidence to the contrary, and the treating
physician's opinion does not appear on its face to be outrageous, it is appropriate for the
Court to give great weight to the physician's opinion as to the nature of the
accommodations required for his patient.").
Defendant's further argument that because its proposed accommodations have
worked for other visually impaired test takers (but not for ones who also suffer from
Plaintiffs learning disorder), they may also work for Plaintiff and Plaintiff should be
required to at least try them and fail before she is permitted to request anything different,
is wholly inconsistent with the plain language and the underlying objectives of the ADA.
Defendant's alternative suggestion that Plaintiff should be confined to
accommodations that she requested and were provided to her on the LSAT several years
ago notwithstanding the progressive nature of Plaintiff s visual impairment and the fact
that her learning disability was not the subject of accommodations is similarly without
merit. "[A]ssistive technology is not frozen in time; as technology advances, testing
accommodations should advance as well." Enyart, 630 F.3d at 1163. Indeed, the ADA
fully contemplates that the accommodations which are required may change over time
and must keep pace with technological developments. As the applicable legislative
history reveals:
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
22
future which today 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(11), at 108 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 391; see also
28 C.F .R. pt. 36, app. C (2011 ).6
Defendant's complaint that Plaintiff failed to engage in an interactive process to
determine reasonable accommodations does not alter the court's conclusion that Plaintiff
is likely to succeed on the merits. Here, both parties failed to engage in a meaningful
discussion of anything other than what each was demanding. Neither more time nor more
discussion is likely to alter the status quo. In fact, Defendant concedes that it does not
actually need more time to evaluate Plaintiffs Accommodations Request because in the
absence of a court order, it has no present intention to either send Plaintiff for an
independent evaluation, or to offer any further accommodations.
Finally, the court concludes that Defendant has failed to establish its affirmative
defense of either a fundamental alteration of what the MPRE tests or undue burden.
Plaintiff s proposed accommodations do not in any way alter the content of the MPRE,
only the manner in which it is presented. Defendant does not claim otherwise.
Defendant does, however, request the court to find that Defendant will encounter
an undue burden by administering the MPRE to Plaintiff on August 5, 2011 with the
requested accommodations. Although Defendant concedes that the burden in Plaintiffs
case is relatively minor, offering the requested accommodations may engender other
requests creating a significant expense and altering the way Defendant operates and
6 For this reason, the court concludes that Defendant's extensive evidence regarding
accommodations that were deemed appropriate many years ago, or for different individuals with
different needs, constitutes an inappropriate benchmark for what must be offered to render the
MPRE "accessible" to Plaintiff. Indeed, Defendant's approach would activelydiscourage the
development of technology and would not only freeze in time what may be considereda
"reasonable accommodation" but would also dispense with any need for an individualized
inquiry.
23
allocates its resources. Defendant cites no authority for the proposition that the court
must consider whether the requested accommodations pose an undue burden in other,
hypothetical cases in order to properly evaluate Defendant's burden in making an
accommodation. Even if this were the standard, Defendant has proffered insufficient
evidence to support its application to this case.
In light of Defendant's significant financial resources, its prior provision of the
accommodations nearly identical to those Plaintiff has requested, and its ability to
adequately address its concern that a visually impaired person such as Plaintiff may be
able to copy or steal the NIPRE while being watched by a one-on-one proctor, the court
concludes that Defendant has failed to establish an undue burden.
3. Balance ofthe Equities and the Public Interest.
"[B]ecause a preliminary injunction is an exercise of equitable authority, a court
considering such a motion should consider the balance of equities, including the public
interest, involved." Olson v. Wing, 281 F. Supp. 2d 476,489 (E.D.N.Y. 2003) (citing
Million Youth March, Inc. v. Safir, 155 F.3d 124, 125 (2d Cir. 1998)). Defendant
strenuously argues that Plaintiff has created her own emergency by seeking injunctive
relief in a carefully selected forum (where Plaintiff has lived for over twenty-two years)
little more than a month prior to the MPRE exam and as part of a concerted effort to bring
such lawsuits to appease "the animating force behind the lawsuit [which is] the National
Federation of the Blind (the "NFB"), an advocacy group that aggressively supports 'high
impact' litigation on behalf of its members." (Doc. 34 at 3). Not only has Defendant
failed to introduce any evidence to support this allegation, it acknowledges, as it must,
that Plaintiff filed her Accommodations Request weeks in advance of the deadline for
doing so which Defendant itself set. If that deadline was unreasonable because of the
complexity of Plaintiffs disabilities, Defendant has itself to blame.
The court has found that Plaintiff acted diligently and in good faith to obtain and
submit the comprehensive documentation necessary to support her Accommodations
Request and that her request was made as soon as practicable after the receipt of those
materials. Defendant, in tum, processed that request in a reasonably timely manner
24
although it demonstrated no urgency in handling Plaintiff's request. Moreover, although
Defendant claims that it has been severely prejudiced by Plaintiff's delay, it does not
identify anything that it would do with additional time other than to hire expert witnesses
to defeat Plaintiff's claim. To this day, Defendant cannot state whether it will ever offer
Plaintiff her requested accommodations. Instead, it has offered only to merely consider
them.
Certainly the timing of Plaintiff's request for injunctive relief presents a legitimate
inconvenience for Defendant (and for the court and presumably Plaintiff). Defendant has
nonetheless advised the court that, if ordered, it can accommodate Plaintiff's request with
the expenditure of approximately $5,000 and three and a half day's time. In such
circumstances, the court cannot find that the balance of equities favors Defendant. To the
contrary, any delay in the resolution of Plaintiff' s Accommodations Request with no
countervailing benefit and considerable harm to Plaintiff tips the balance of equities
decidedly in Plaintiff's favor.
Finally, the public interest compels the court to order accommodations that will
best ensure a disabled person's access to a professional exam that will, in part, determine
whether he or she may practice a chosen profession. "The ADA serves the important
function of ensuring that people with disabilities are given the same opportunities and are
able to enjoy the same benefits as other Americans." Felix, 324 F.2d at 107. The
public's interest in the integrity of secure, professional licensing exams while important
and legitimate does not trump the ADA.
ORDER
For the foregoing reasons, the court hereby:
1. GRANTS a preliminary injunction requiring Defendant to provide to Plaintiff the
following accommodations for the August 5, 2011 NIPRE exam in addition to
those accommodations already granted by Defendant: (a) the use of a Windows XP
laptop computer equipped with ZoomText 9.12 and Kurzweil3000 v. 11.05 to
read all examination materials; (b) an opportunity to test the laptop with sample
25
MPRE questions in electronic format to ensure the equipment is functioning
properly; and (c) the use of peripheral devices with the laptop during the test
consisting of a Windows keyboard modified with white on a black background,
large lettering, and Braille finger placements, a 22-inch widescreen monitor
mounted on an adjusted arm, a corded mouse, and stereo speakers. With
Defendant's consent, Plaintiff may supply these peripheral devices for the MPRE
exam.
2. Pursuant to Fed. R. Civ. P. 65(c), Plaintiff shall place a bond or other
security in the amount of$5,000 in Plaintiffs counsel's escrow or trust account by
8:00 a.m. on August 5,2011 and provide certification of the same to the court.
The court finds this security sufficient to compensate the costs and damages
sustained by the Defendant, if any, in the event the Defendant is found to have
been wrongfully enjoined.
SO ORDERED.
Dated at Rutland, in the District of Vermont, this
~rL day of August, 2011.
Christina Reiss, Chief Judge
United States District Court
26
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