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Stephanie Enyart v. National Conference of Bar Examiners

January 4, 2011

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.



Appeals from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding D.C. No. 3:09-cv-05191-CRB, D.C. No. 3:09-cv-05191-CRB

The opinion of the court was delivered by: Silverman, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted December 6, 2010-San Francisco, California

Before: Robert E. Cowen*fn1 , A. Wallace Tashima, and Barry G. Silverman, Circuit Judges.

Opinion by Judge Silverman

OPINION

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- 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, 200-question, 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 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.

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 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 Plain-tiff'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 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 ...


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