Braille Monitor                                                 February 2012

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Victories in Our Ongoing Saga with the National Conference of Bar Examiners

by Scott C. LaBarre
           
Scott LaBarreFrom the Editor: Scott LaBarre is president of the National Federation of the Blind of Colorado and the National Association of Blind Lawyers. He is a practicing lawyer in Denver who coordinates many of the legal cases we take on. An active litigator, he knows a lot about the law and is capable of putting the victories we achieve into English so that we can all appreciate and benefit from them. Here is what Scott has to say about technology and high-stakes testing:

The year is now 2012, and the Congress passed into law the Americans with Disabilities Act (ADA) nearly twenty-two years ago. This landmark legislation declared boldly that discrimination on the basis of disability was strictly prohibited. The Act carried this mandate to all manner of entities from public facilities like restaurants and hotels to employers large and small. Section 309 of the ADA directs testing agencies to ensure that their examinations are administered in a non-discriminatory manner. Congress charged the United States Department of Justice (DOJ) with promulgating regulations to enforce this part of the Act. The relevant DOJ regulation states that a testing agency offering an exam must assure that "the examination is selected and administered so as to best ensure that, when the examination is administered to an individual with a disability that impairs sensory, manual, or speaking skills, the examination results accurately reflect the individual's aptitude or achievement level or whatever other factor the examination purports to measure, rather than reflecting the individual's impaired sensory, manual, or speaking skills." As most people know, the ADA requires covered entities to provide accommodations for an individual's disability so that whatever good, service, or employment is offered is accessible to the individual with a disability. Therefore it is no surprise that a testing agency is required to provide accommodations.

With such clear direction from Congress and DOJ, refusal of a testing agency to provide accommodations should be a thing of the distant past. But, as we learned when we were children, it is never safe to make assumptions.

I graduated from the University of Minnesota Law School in 1993. At that time assistive technology was far more limited than it is now. Although I used Artic Vision to create DOS-based WordPerfect documents and conduct rudimentary legal research using a modem and a slow dial-up service, I certainly did not have access to electronic texts and other legal material digitally. So I employed other techniques like live readers and law books on cassette from Recordings for the Blind (now Learning Ally) and Minnesota State Services for the Blind. When I took the bar exam, I used a person to read the text and a typewriter to produce the essay portions of the exam.

The world of the twenty-first century law student is far different. Every book now begins as an electronic file. Students can get every textbook and other material in an electronic format. As a result a blind law student can use screen-reading software to read the required material, and every blind law student I know either relies heavily on assistive technology or uses electronic texts exclusively.

My own law practice has changed dramatically over the years. When I first hung out my shingle, I relied extensively on human readers. Today I use my chief legal assistant to read some short passages from faxes or print mail that come into the office, but, if I have long documents, I either have immediate electronic access to them or have my legal assistant turn paper documents into electronic text. Generally speaking, the legal profession has gone almost completely digital. Most courts in the land now require that documents of any type be filed in an electronic format. I can read much faster and control my place in the text much more efficiently using my JAWS (Job Access with Speech) screen reader. In some ways I have become more effective because I can process material more quickly than I could previously and can assign my assistant to take care of a variety of tasks demanded by the cases coming through my office. Ultimately every blind lawyer or blind person has to select from the arsenal of alternative techniques that allows him or her to get the job done. In fact the ADA recognizes this individuality and calls upon covered entities to evaluate reasonable accommodations case by case.

The concept of making accommodations for a person's disability has been around for decades, and it is the law of the land. As lawyers and as a legal profession, we are supposed to have a heightened awareness of the law, even if the specific area at issue is not an individual lawyer's specialty. We would expect testing agencies that work regularly and frequently with test takers with disabilities to be particularly mindful and aware of their obligations under the law to provide accommodations. Logically we could expect a testing agency that offers licensing exams in the legal profession to be acutely aware of its obligations and ready to comply with the dictates of the law.

Imagine my surprise when the National Conference of Bar Examiners (NCBE) refused to provide the accommodation most frequently used by law students. NCBE offers a number of examinations, but, most important, it offers the Multistate Bar Examination (MBE) and Multistate Professional Responsibility Examination (MPRE). The MBE is a two-hundred-question multiple-choice exam testing several areas of the law, and it is used in something like forty-eight jurisdictions in the country. The MPRE is a much shorter multiple choice exam that tests the applicant's knowledge of the ethical rules governing the practice of law. In just about every state a person has to pass both of these exams, along with some other essay exams, to become licensed. For an aspiring lawyer the MBE and MPRE are mandatory in almost every state, and these examinations are difficult enough that it is hard to achieve passing scores. This means that a blind applicant's most familiar and strongest alternative technique must be employed to give the blind test taker the best shot at passing these difficult exams.

As I mentioned previously, the vast majority of blind law students today use various screen readers to access their law school materials and take their exams. It is not difficult to understand why blind bar applicants coming out of law school today wish to take the MBE and MPRE using assistive technology. Using a screen reader permits the blind test taker to move quickly through the text and go back and forth with ease to reread various passages, an ability necessary in the bar examination.

In 2009 Stephanie Enyart contacted me and told me that NCBE practice was to deny blind bar applicants the use of assistive technology on the MBE and MPRE. She is a blind 2009 honors graduate of the University of California at Los Angeles (UCLA) School of Law. She also served as the first president of the National Association of Law Students with Disabilities and was also a member of the NFB chapter in the western Los Angeles area.

Stephanie knew that she wanted to take the bar examination in late 2009 or early 2010 and needed to use a combination of JAWS and ZoomText. Her initial research revealed that NCBE would not allow her to use these technologies, even though the California Bar Association would allow her to use them on the state portion of the exam. At first I thought this would be a pretty easy problem to solve. Either I, as president of the National Association of Blind Lawyers, or Dr. Maurer, as president of the National Federation of the Blind, could contact NCBE, explain the problem and the proper use of assistive technology, and then walk away with a solution. I refer you to my earlier discussion of making assumptions.

In early 2009 we started our contact with NCBE and urged them to change their policy. To this day their national policy still precludes the use of assistive technology on the portions of the bar examination that they control. Despite their loud and vociferous protestations before the nine different federal courts where we have appeared, I still cannot understand why they continue to refuse to offer the bar examination with the accommodations needed by these blind law students. NCBE has consciously decided to spend millions of dollars in legal fees fighting us rather than finding a workable solution.

Erica Moeser, president of NCBE, and Dr. Maurer became pen pals for several months in 2009, and NCBE even had contact with the International Braille and Technology Center for the Blind at the Jernigan Institute. At the end of this process NCBE decided that it would continue its practice of denying the use of assistive technology on the bar examination. In the alternative, they offered Stephanie and others the use of a human reader, a large CCTV, the examination on an audio CD, or the examination in Braille. This was the menu, and applicants could select from only these choices.

Let me digress to address some of the comments that I have heard from within and outside the blindness community. They go something like this: “Life isn't perfect for a blind person, and you just need to accept whatever is offered. As blind people we have to be tougher. So suck it up and take the test with a reader or whatever. After all, many of us used readers in the past and did so successfully.”

Although I agree that blind people generally must be tougher and more resourceful, this does not mean that we must climb much higher peaks if more reasonable and practical approaches are readily available. To make some analogies, sighted test takers are not forced to take the exam without their eye glasses or contacts. Neither are they forced to read the exam upside down, even though they might be able to manage with great effort to do so. If forced to compete in this way, it would be virtually impossible for them to perform at their best and demonstrate what they really know since a majority of their brainpower and concentration would be required to focus on reading rather than on the question and its answer. The bar examination and other professional examinations like it are high-stakes, high-pressure exams and require test takers’ maximum concentration. If blind applicants are unfamiliar with using readers, CCTVs, or other accommodations, they should not be forced to use an unfamiliar method to take one of the most important tests that they will ever take. Nevertheless, this is precisely what NCBE wanted Stephanie and others to do.

To make a long story a bit shorter, we were not able to negotiate successfully with NCBE and had no other option but to sue for violations of the ADA in the United States District Court for the Northern District of California in early November of 2009. Because Stephanie applied to take the February 2010 California Bar Examination, we had precious little time to get the kind of court ruling we needed for her to take the examination with the accommodations she had used in law school. Therefore we filed a motion for preliminary injunction, an urgent motion that tells the court that it must act quickly on a matter because, if it does not, the opportunity being addressed will have passed, and there will be no way to correct the wrong done in the future. Bar examinations are offered only twice each year, and, if people cannot take an exam, their careers are delayed by at least six months. This may not seem like a big deal, but, when you consider that the average law student now racks up hundreds of thousands of dollars of debt for outrageous law school tuition, a six-month delay is far from trivial. It is critical for a newly graduated law student to become licensed and employed as soon as possible.

I haven't worked on this case alone. NCBE is a large organization with tens of millions of dollars of revenue each year. It has the capacity to hire some of the nation's largest and most powerful law firms, and it has done exactly that throughout the course of this litigation. To combat this inherent advantage for NCBE, we had to marshal our best effort to assemble a powerful team as well. From day one Dan Goldstein of Brown, Goldstein and Levy and I have been the two lead attorneys on this matter. We have had the privilege of working with several other skilled and experienced attorneys in California; Vermont; Washington, D.C.; and elsewhere. In particular we have been greatly aided by Disability Rights Advocates of Berkeley, California, and its executive director, Larry Paradis. Without the tremendous team that we assembled, the victories achieved would not have been possible. This tremendous show of legal power has been possible only because of the resources, philosophy, and commitment of the National Federation of the Blind.

We engaged in whirlwind litigation preparation and got the case ready for a hearing before United States District Court Judge Charles Breyer at the end of January 2010. By the way, Judge Breyer is the brother of United States Supreme Court Justice Steven Breyer. The oral arguments went very well, and on February 4, 2010, Judge Breyer granted our motion for preliminary injunction and ordered NCBE to provide Stephanie Enyart with the accommodations she needed to take the February 2010 California Bar Examination.

Immediately after we achieved this successful order, NCBE filed an emergency motion with the United States Court of Appeals for the Ninth Circuit asking that court to prevent Judge Breyer's order from taking effect. The Ninth Circuit denied the emergency motion but did allow NCBE to pursue its appeal of Judge Breyer's preliminary order on the normal docket of the court.

A preliminary injunction is a temporary order and not the final ruling of the court. It is extraordinary relief and very rarely granted. To gain relief on future administrations of the bar examination, we would need to achieve another preliminary injunction or a permanent injunction. Because well over half of the applicants who take the California Bar Examination fail, needing another injunction from the court stood as a real possibility in February of 2010.

Unfortunately, like the majority of her fellow applicants, Stephanie did not pass the exam in February. We had to go back to Judge Breyer in June and get another order. Despite NCBE's best efforts, we achieved that order as well. This allowed Stephanie to take the July 2010 bar examination with her requested accommodations.

Meanwhile three blind applicants in Maryland--Tim Elder, Ann Blackfield, and Michael Whitwer--requested the use of assistive technology on the Maryland Bar Examination, but NCBE of course denied their requests. We filed a similar preliminary injunction motion with the United States District Court of Maryland, and the case got assigned to U.S. District Court Judge Frederick Motz. Unfortunately he ruled against us. In my view his reasoning was greatly flawed and a terrible interpretation of the law. One can read more about Judge Motz's decision and the earlier parts of this NCBE saga in my article, "SWEP and the Bars of Our Prison," which ran in the October 2010 Braille Monitor.

In California the Ninth Circuit appeal continued. We filed our appellate brief during the summer of 2010, and the Ninth Circuit scheduled oral arguments for December. Dr. Maurer and I, along with the entire legal team, prepared Dan Goldstein to argue before the court, and Dan delivered a tremendous argument on December 6. At the hearing the court made it clear to us that it wanted to rule quickly and that it felt great skepticism about NCBE's arguments. Let me pause to address some of the arguments NCBE has trotted out everywhere we go on our tour of the United States federal court system.

NCBE argues that individuals with disabilities do not get to choose unilaterally the accommodation they wish to use. Throughout this litigation NCBE has referred to Stephanie's request for the use of assistive technology as her "preferred accommodation" and has often characterized her request as something that was trivial or a matter of whimsy. NCBE argues that, because Stephanie has used readers and CCTVs in the past, she could use them now on the bar examination. It also argues that the DOJ regulation I cited at the beginning of this article should be ignored and that a testing agency does not need to provide the accommodation that best ensures that the test taker's abilities and knowledge are measured, but that NCBE is only obligated to provide some reasonable accommodation.

This argument is flawed for many reasons. The bar examination is a high-pressure, high-stakes exam. Applicants must be able to concentrate at peak efficiency to pass. If blind applicants are spending a great deal of effort working with unfamiliar or inefficient accommodations, their concentration is diverted, to their detriment. Additionally, Congress and the DOJ adopted strong language regarding testing entities, presumably because examinations are far different from employment and other situations covered by the ADA. When working with an employer or in a classroom, a long-term relationship exists in which the individual with a disability can work with the entity to determine the most reasonable and efficient accommodation. Conversely, licensing examinations are often one-shot opportunities given under a great deal of pressure, and applicants with disabilities must be able to use the accommodations with which they are most familiar and comfortable.

Additionally, NCBE has also made the argument that it is not covered by the ADA. It makes this argument because it is the state bar in each jurisdiction that administers the overall bar examination and decides how to administer it. Therefore NCBE says that it does not directly offer the exam. The major problem with this argument is that NCBE makes the decision about what accommodations will be offered on its portions of the exam. Moreover, NCBE gives explicit instructions on how to administer its examinations, and, if a state bar does not follow those instructions, that state bar risks having all of its NCBE exams invalidated. In every case we have brought in this ongoing saga, the state bars have been more than willing to grant the use of assistive technology as a reasonable accommodation but have not been allowed to do so on the NCBE examinations because NCBE makes that call.

NCBE's third major argument is that to offer the bar exam with assistive technology poses an undue burden on it. This is certainly not true in a financial sense because NCBE passes the cost of the accommodation on to the individual state bar organization. Furthermore, NCBE has millions of dollars of revenue each year and always reports substantial revenues in excess of expenses.

On January 4, 2011, Louis Braille's two-hundred-second birthday, the Ninth Circuit Court of Appeals issued an opinion in this matter. It ruled that Judge Breyer was correct to issue a preliminary injunction, and therefore it affirmed his order that NCBE provide the use of assistive technology as an accommodation on the portions of the bar examination it controls. Additionally the Ninth Circuit confirmed that NCBE's reasonable-accommodation argument is not the proper standard. The court said the DOJ "best ensured" regulation should be applied. The Ninth Circuit is the first appellate court to address and rule on the question of whether the DOJ regulation should apply. This decision represents an extremely important and precedent-setting victory for any individual with a disability seeking accommodations on an examination offered by a private entity.

Next chronologically in this saga is Tim Elder's application to take the California Bar Examination. Incidentally, Tim is a two-time winner of NFB scholarships. He now serves as second vice president of the National Association of Blind Lawyers, but in January of 2011 Tim was not yet a licensed attorney in California and needed to take that state's bar examination. When he requested the use of his preferred screen reader to take the MBE and MPRE, NCBE of course denied the request. We filed another motion for preliminary injunction in the United States District Court for the Northern District of California. Tim's case was assigned to the Honorable Susan Illston.

On February 11, 2011, we appeared before Judge Illston and went over the same old arguments with NCBE. Judge Illston ruled in our favor, and Tim took the February 2011 California Bar Examination with the use of JAWS. Judge Illston cited what was then the very recently issued decision of the Ninth Circuit to support her ruling. Additionally she explicitly ruled that NCBE could not hide behind its argument that it did not fall under the provisions of the ADA because it did not offer the exam.

By this time one would have thought that NCBE would have gotten the message that the trend was going against it. However, NCBE filed a petition for writ of certiorari before the United States Supreme Court. Our Supreme Court has what is called discretionary jurisdiction over the cases filed with it. This means that the court does not have to hear every appeal made to it. In fact the reality is that the Supreme Court hears less than one percent of all cases it is asked to review. In its petition to the Supreme Court, NCBE raised the same old legal arguments, and several testing organizations filed their own amicus briefs urging the Court to take this case.

Meanwhile other blind applicants made known their wishes to take portions of the bar exam using assistive technology. Katherine Bonnette of Washington wished to take the July 2011 Washington, D.C., Bar Examination with JAWS, and NCBE denied her application. Again we filed a motion for preliminary injunction, this time before the United States District Court for the District of Columbia. United States District Court Judge Colleen Kollar-Cotelly ruled in our favor on July 13, 2011, and she cited Judge Breyer's decision, the Ninth Circuit's ruling, and Judge Illston's opinion. She order NCBE to provide Katherine Bonnette with the MBE using JAWS.

In Vermont Deanna Jones, one of our members, applied to take the MPRE. At that time she was about to start her third year of law school at the University of Vermont, where she had always used ZoomText and Kurzweil 3000 to take her exams. It is common for those in the third year of law school to take the MPRE and get that part of the bar exam out of the way.

As usual, NCBE denied Deanna's request for the use of assistive technology, and we filed a motion for preliminary injunction before the U.S. District Court for the District of Vermont. On August 2, 2011, Chief Judge Christina Reiss granted our motion, and once again NCBE was ordered to provide the requested accommodations. Afterwards NCBE appealed Judge Reiss's decision to the United States Court of Appeals for the Second Circuit, and that appeal is still pending.

During the summer 2011 proceedings we filed an additional motion in Stephanie's case. As I mentioned above, a preliminary injunction is only a temporary measure. To make sure that Stephanie Enyart could take the MBE and MPRE again in California, and perhaps in other states, we requested that Judge Breyer make his ruling permanent. We filed a motion for summary judgment, a motion in which you tell the court that, even if it looks at the facts in the light most favorable to the other party, in this case NCBE, we would win as a matter of law.

We argued that the "best-ensured" standard is now the law in the Ninth Circuit. We asserted that NCBE could not marshal any facts demonstrating that anything other than the use of assistive technology would best ensure that the bar exam measure her abilities rather than her disability. We introduced several expert witnesses, who all indicated that Stephanie needed to use assistive technology to have the best and fairest opportunity to pass the bar examination. None of NCBE's experts were able to say which accommodation best ensured that Stephanie's abilities would be measured. NCBE again made all the same arguments and also argued that our motion failed because we had no medical doctor who could testify that Stephanie Enyart needed the accommodations she had requested. The Supreme Court started its new term in September of 2011 and reviewed all the petitions filed over the summer, including the one filed by NCBE. We had filed an extensive brief opposing its petition and told the Supreme Court that it should not take NCBE's case and should allow the Ninth Circuit's decision to stand. In early October the Supreme Court denied NCBE's petition and its attempt to have the highest court undo what the Ninth Circuit had decided.

On October 11, 2011, we appeared before Judge Breyer again to argue the summary judgment motion. The court took only thirteen days to write a decision, and here is the way we announced the Court's October 24, 2011, finding to the world.

FOR IMMEDIATE RELEASE:

Federal Judge Issues Permanent Legal Resolution for Blind Law School Graduate Who Paved the Way for Blind Test Takers

Berkeley, California (October 26, 2011): On Monday, October 24, the Honorable Judge Charles R. Breyer ended a two-year legal battle between a blind law school graduate and a national testing corporation over the graduate's right to use a computer equipped with assistive technology to take the California Bar Exam. Granting Stephanie Enyart's motion for summary judgment, Judge Breyer found that Ms. Enyart is entitled to take the bar exam on a computer equipped with text-to-speech screen reading and visual screen magnification software as the method that will best ensure that she is tested on her aptitude rather than her disability.

Stephanie Enyart, who graduated from UCLA School of Law in 2009 and first sought to take the bar exam that same year, was forced into court by the refusal of the National Conference of Bar Examiners (NCBE) to allow her to take the bar exam using her primary reading method, a computer equipped with screen-reading and screen-magnifying software. Ms. Enyart, who became blind in early adulthood as a result of macular degeneration, has relied on screen-reading and screen-magnifying technology to read since college, through law school, and in her professional career.

Although Ms. Enyart won a preliminary injunction in early 2010 ordering NCBE to provide her requested accommodations, the case has remained in court for almost two years as NCBE unsuccessfully challenged the district court's preliminary injunction order, first to the Court of Appeals for the Ninth Circuit, and then to the United States Supreme Court. NCBE argued that it had fulfilled its legal obligations to Ms. Enyart by offering accommodations such as Braille or a human reader, notwithstanding evidence that these alternatives do not work well for her.

The courts resoundingly rejected that argument, holding that licensing examinations must be administered to exam takers with sensory impairments in a manner that "best ensures they are tested on what the examination purports to measure, rather than on the exam takers' impairments.”

Dr. Marc Maurer, president of the National Federation of the Blind, said: "Although blind people have practiced law successfully throughout history, we still face unreasonable and unwarranted barriers to entering and achieving success in the profession. Judge Breyer's decision is a tremendous step forward in granting blind Americans seeking to enter the practice of law full and equal access to the process of acquiring their credentials. We applaud this common-sense ruling and expect full compliance going forward from the National Conference of Bar Examiners."

Anna Levine of Disability Rights Advocates, an attorney representing the plaintiff, said, "Judge Breyer's decision vindicates Stephanie Enyart's request to take the bar exam on a computer so that she can be tested on what other examinees are tested on, rather than on how well she uses an unfamiliar reading method. We only wish that NCBE had not fought this simple, justified request so aggressively over the past two years."

The suit was filed on November 3, 2009, and charged that the NCBE violated the Americans with Disabilities Act (ADA) and California's Unruh Civil Rights Act by denying accommodations on the Multistate Bar Examination and the Multistate Professional Responsibility Examination, two components of the California Bar Exam controlled by NCBE. The state bar granted Ms. Enyart's request to use a computer on the essay portions of the bar exam but was unable to grant her request on the portions controlled by NCBE.

Ms. Enyart was represented with the support of the National Federation of the Blind (NFB) by Brown, Goldstein and Levy, LLP, in Baltimore, Maryland, and the LaBarre Law Offices, P.C., in Denver, Colorado. The plaintiff was further represented by Disability Rights Advocates (DRA), a national nonprofit law center that specializes in civil rights cases on behalf of persons with disabilities, with offices in Berkeley, California, and New York City.

I must put Judge Breyer's ruling in context to explain how extraordinary it is. The American Bar Association has compiled statistics demonstrating that defendants win ADA cases well over ninety-five percent of the time. Plaintiffs almost never win ADA cases, especially on summary judgment.

Judge Breyer used the Ninth Circuit's ruling and applied the "best-ensured" standard. He also commented on NCBE's insistence that a medical professional had to opine that Stephanie needed the accommodations she had requested.

In our experience as blind people we often hear that a medical doctor has to decide what is best for us. Doctors can tell us that we are blind and how we got there. Very rarely do they have the training to tell us what accommodations and alternative techniques we need.

Doctors do not spend their time trying to figure out how to accommodate blindness. Their emphasis is on trying to prevent blindness. Consequently doctors normally do not make good witnesses when telling a court or jury how blindness should be accommodated. Because doctors command so much esteem and automatic respect, courts and juries often give their opinions about practical and most appropriate accommodations too much weight. Fortunately Judge Breyer understood this issue properly and, when addressing NCBE's argument that only a medical professional could speak to what Stephanie Enyart truly needed, he stated, this "argument misses the point of the testimony. The most effective assistive technologies for accommodating Ms. Enyart's disability are not matters that require a medical opinion, but rather experience, skill, and knowledge with the use, application, and evaluation of assistive technologies."

In one respect our press release was not entirely accurate. The legal battle has not quite ended. Because we have won a final judgment in Stephanie's case, the ADA allows us to collect attorneys’ fees and costs as the prevailing party. Because we have had to litigate so forcefully with NCBE, we have spent several hundred hours on Stephanie's behalf, and we anticipate being able to collect millions of dollars in fees. Once we receive that fee award, that money will go to good use. Despite the fact that we have secured something like seven substantial legal victories against NCBE, with only one bad opinion against us, NCBE is still waging this battle with vigor. As I mentioned previously, Deanna Jones' case is before the U.S. Court of Appeals for the Second Circuit, and we expect to have a hearing before that court early this year.

As I conclude this article, I remain perplexed about why NCBE has fought so hard to maintain its policy of denying the use of assistive technology on the portions of the bar exam it administers. Part of the problem is that NCBE and many other entities still view the use of accommodations as something special and extraordinary and expect us to feel that any entity that makes any nod to our blindness is doing us a favor and that we should be grateful for what we do receive.

Our founder, Dr. Jacobus tenBroek, wrote a landmark law review article entitled "The Right to Live in the World: The Disabled in the Law of Torts." This was one of the earliest pieces of legal writing which clearly established the rights of the blind and otherwise disabled as fundamental human and civil rights. Dr. tenBroek's writing reminds us that accommodations to our disabilities are not acts of charity but rather a means to a level playing field. We have the right to live in a world in which society does not create and maintain artificial barriers preventing us from true equality.

With respect to our ongoing saga with NCBE, its policy prohibiting the use of assistive technology on the bar exam creates an artificial barrier. The exams start out as electronic files. Those files can be read with a screen-reading program. Screen-reading programs give blind people independent and immediate access to text. Although the use of this technology cannot give us precisely the same experience as the sighted, for the vast majority of blind bar applicants, their assistive technology gives them as close to the same experience as anything ever has and now can. As the courts have ruled, providing this accommodation does not unduly burden NCBE. So it comes down to a matter of will and choice. Thus far NCBE has chosen to go to great lengths to fight us and has made the strongest possible effort to deny us the common-sense accommodations we need to compete. Although life for us is better than ever before, this saga demonstrates with compelling force that we still have a long journey ahead of us before we can declare our freedom and first-class citizenship.

As I sit at this keyboard using assistive technology to write and review this piece, I have no clue how long it will take for us to prevail. I do know, however, that we will emerge victorious. The right to information is a fundamental human right. Technology and the law give us the right and ability to access information on terms of equality with the nondisabled. Still many sectors of society will not acknowledge this right, and therefore we must compel their compliance through legal action. Legal battles like this one are expensive and lengthy. However, the cost of not acting is far greater for blind people. We are far along on our march towards true freedom, and our ultimate destination of full equality is close at hand. Because of the common commitment, love, and philosophy we share, we shall permit no force, not NCBE, not anyone, from stopping us. Freedom will be ours!

 

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