Appropriate Testing Accommodations for Blind Test-Takers: High Stakes Examinations

By Jacob M. Mattinson

The author is currently a law student at Pennsylvania State University, Dickinson School of Law, and a member of the Happy Valley Chapter of the National Federation of the Blind in State College, Pennsylvania.

Abstract

Over time, courts have denied individuals with disabilities certain requested accommodations related to admissions tests for entry into their chosen profession. In particular, blind and otherwise visually impaired individuals frequently face opposition when requesting the use of screen reading software when taking examinations for entry into the legal profession. This article outlines the emergence and application of a new legal standard, the “best ensures” standard. While application of this standard is still being developed in court, a correct application of the standard, involving an individualized inquiry, will enable the blind individual to be tested at a level equal to his or her peers, with the results of the examination accurately reflecting the individual’s aptitude. This new standard represents an improvement that courts should continue to apply.

Keywords

high stakes examinations, best ensures standard, reasonable accommodation, bar exam, MBE, MPRE, testing accommodations, rehabilitation act, Americans with Disabilities Act, Title III

 

I.  Introduction

Over time, courts have denied individuals with disabilities certain requested accommodations related to admissions tests for entry into their chosen profession. In particular, blind and otherwise visually impaired individuals frequently face opposition when requesting the use of screen reading software when taking the Multistate Professional Responsibility Examination (the “MPRE”) and the Multistate Bar Examination (the “MBE”) for entry into the legal profession. Both examinations are prepared by the National Conference of Bar Examiners (the “NCBE”) and are contracted out and administered on behalf of the NCBE by various third party organizations in each state.

The purpose of this article is not to provide an exhaustive review of each accommodation a blind or otherwise visually impaired individual may or should request on an examination. Rather, this article outlines the emergence and application of a new legal standard, the “best ensures” standard. While application of this standard is still being developed in court, a correct application of the standard will enable the blind individual to be tested at a level equal to his or her peers, with the results of the examination accurately reflecting the individual’s ability, rather than evidencing some disadvantage due to the individual’s disability (Enyart v. Nat’l Conference of Bar Exam’rs, Inc., 2011).

By way of illustration, imagine a law school student, Jenny, who is nearing completion of her legal education. Jenny has been blind since birth and has been successful throughout her life due in part to various accommodations in the classroom and on examinations. These accommodations, all of which have been intended to equalize access between Jenny and her peers, have included braille textbooks, audio cassettes, extended time to take examinations, and screen reading software. Jenny’s primary reading method used when studying and taking examinations is the use of screen reading software on her laptop computer, which she has found helps her to compete on a level equal to that of her peers. In law school, due to her hard work, dedication, and “smarts,” Jenny is ranked in the top third of her class. Jenny applies for the MPRE and requests extended time to take the examination, along with the use of screen reading software. The organization administering the MPRE grants Jenny’s request for extended time, but denies her request to use screen reading software, instead offering the use of an audio cassette or live reader. The organization denies Jenny’s request because of concerns relating to test security and difficulty in administering the exam due to added preparation time and formatting requirements. Jenny takes and passes the MPRE by using a live reader. When applying for the MBE, Jenny requests the same accommodations and receives the same response from the organization administering the MBE as she did from the organization administering the MPRE. Jenny takes the MBE, again using a live reader, but, unfortunately, does not pass the more difficult examination. She is frustrated at the organization administering the MBE for not allowing her the use of screen reading software and sues the organization, requesting a preliminary injunction, a temporary court order that would compel the organization to provide her requested accommodations the next time she sits for the MBE. Should the court require the organization administering the MBE to grant Jenny her requested accommodation, even when the organization has offered alternative accommodations? Is it significant to the court’s determination that one of the alternative accommodations helped Jenny to pass the MPRE? Courts have struggled to answer these questions, applying different standards. Ultimately, however, the courts seem to have settled on application of the “best ensures” standard, a regulation found in Department of Justice, Examination and Courses (1999), which states that an examination must be administered in a fashion that will best ensure that the results of the examination accurately reflect the individual’s ability, rather than the individual’s disability (Enyart v. Nat’l Conference of Bar Exam’rs, Inc., 2011). By applying this standard, a court would likely find that whether Jenny should be granted her requested accommodation is a facts and circumstances analysis that rests heavily on whether that accommodation is her best chance of taking an examination that will test her ability and not disadvantage her due to her blindness.

II.  Background

A.  Section 504 of the Rehabilitation Act of 1973

The Rehabilitation Act, enacted by Congress in 1973, was an attempt by Congress to protect individuals with disabilities from discrimination in certain situations (Rains, 1992). Section 504 states in part:

No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. (The Rehabilitation Act of 1973).

Section 504 applies to “any program or activity receiving Federal financial assistance” ((The Rehabilitation Act of 1973). Section 504, however, does not require an employer to provide every accommodation that a disabled employee may request (Carter v. Bennett, 1988). Rather, Section 504 only requires that the employer provide a “reasonable accommodation.”

Specifically, the Department of Health and Human Services (the “DHHS”), Reasonable Accommodation (2005) regulations that implemented the Rehabilitation Act (1973) state that “[a] recipient [of Federal funds] shall make reasonable accommodation to the known physical or mental limitations of an otherwise qualified handicapped applicant or employee.” The DHHS provided an exception to the provision of a reasonable accommodation where the employer demonstrates that the “accommodation would impose an undue hardship on the operation of its program or activity” (Department of Health and Human Services, Reasonable Accommodation, 2005). The Rehabilitation Act, however, is limited in application, only applying to federal executive agencies, federal contractors, and those in receipt of federal funds (Rains, 1992). This limited application prevented the Rehabilitation Act from having an effect on many of the organizations affecting individuals with disabilities, including private entities administering high stakes examinations such as the MBE and the MPRE.

B.  The Americans with Disabilities Act of 1990

The Americans with Disabilities Act of 1990 (the “ADA”) was enacted to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities” and to ensure that individuals with a disability are not disadvantaged (D’Amico v. New York State Bd. of Law Exam’rs, 1993). Furthermore, Congress enacted the ADA in an attempt to eliminate discrimination against “individuals with disabilities [by] assur[ing] equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals . . .” (The Americans with Disabilities Act of 1990). Discrimination against individuals with disabilities is a continuing problem in areas such as education and employment, the continuation of which denies individuals 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 dependence and nonproductivity” (The Americans with Disabilities Act of 1990).

The ADA is broken up into five Titles, which differ in how they treat individuals with disabilities based on the applicable circumstances: Title I governs employment, Title II governs public entities, Title III governs public accommodations and services operated by private entities, Title IV governs telecommunications, and Title V contains miscellaneous provisions. Title III, which governs services operated by private entities, is the only title that will be addressed at length in this Article.

The ADA defines a disability as “a physical or mental impairment that substantially limits one or more of the major life activities of such individual” (The Americans with Disabilities Act of 1990). Under Title I of the ADA, an entity covered by the ADA discriminates against an individual with a disability when it fails to make “reasonable accommodations to known physical . . . limitations . . .,” with different promises of equality applying under the ADA’s other titles (The Americans with Disabilities Act of 1990). While the ADA and its regulations are designed to allow individuals with a disability to compete on an equal basis with non-disabled persons, its success is arguable as it may reasonably result in individuals requesting more accommodations than they actually need to perform a given task and, rather than placing them on an equal footing with their peers, may disadvantage them.

Title III of the ADA defines “private entity” broadly as “any entity other than a public entity” and governs any private entity whose operations affect “commerce” (The Americans with Disabilities Act of 1990). Importantly, only Title I of the ADA, governing employment, has a limited application to those entities with 15 or more employees, giving Title III broad application (The Americans with Disabilities Act of 1990). Furthermore, Section 12189, which codified part of Title III relating to examinations, specifically provides that:

[a]ny person that offers examinations or courses related to applications, licensing, certification, or credentialing for secondary or postsecondary education, professional, or trade purposes shall offer such examinations or courses in a place and manner accessible to persons with disabilities or offer alternative accessible arrangements for such individuals. (The Americans with Disabilities Act of 1990).

Thus, Title III of the ADA governs professional licensing examinations. In passing Title III, Congress concluded in House Report No. 101 (1990) that many “licensing, certification and testing authorities are not covered by either Section 504 of the Rehabilitation Act, because no federal money is received, or by Title II of the ADA, because they are not state agencies,” creating a gap in coverage. Thus, Congress enacted Section 12189 “to assure that persons with disabilities are not foreclosed from educational, professional, or trade opportunities because an examination or course is conducted in an inaccessible site or without an accommodation” (H.R. Rep. No. 101, 1990). Congress also stated that whenever an examination is offered at an inaccessible site, an alternative accessible arrangement, with comparable conditions, must be provided for individuals with disabilities (H.R. Rep. No. 101, 1990). The Attorney General is charged with issuing regulations to carry out all of the non-transportation provisions of Title III of the ADA (The Americans with Disabilities Act of 1990).

Importantly, Section 12189 does not require that an entity provide a “reasonable accommodation” to individuals who are taking a professional examination. Rather, it requires that the entity offer the examination in a “place and manner accessible to persons with disabilities” or to offer an alternative arrangement (The Americans with Disabilities Act of 1990). Congress, however, chose not to define “accessible,” leaving the term ambiguous.

The Department of Justice (the “DOJ”), pursuant to its regulatory authority, issued a regulation interpreting Section 12189. Most notably, the DOJ promulgated what has become known as the “best ensure” standard, the text of which follows:

Any private entity offering an examination covered by this section must assure that . . . [t]he examination is selected and administered so as to best ensure that, when the examination is administered to an individual with a disability that impairs sensory, manual, or speaking skills, the examination results accurately reflect the individual's aptitude or achievement level or whatever other factor the examination purports to measure, rather than reflecting the individual's impaired sensory, manual, or speaking skills (except where those skills are the factors that the examination purports to measure) . . . . (Department of Justice, Examination and Courses, 1999).

A plain reading of this regulation indicates that an examination must be administered in a fashion that will best ensure that the results of the examination accurately reflect the individual’s ability, rather than the individual’s disability (Enyart v. Nat’l Conference of Bar Exam’rs, Inc., 2011). The regulation goes on to state, regarding examination modifications for any individual with a disability, that “[r]equired modifications to an examination may include changes in the length of time permitted for the completion of the examination and adaptation in the manner in which the examination is given” (Department of Justice, Examination and Courses, 1999).

Beyond modification of the examination itself, the regulation also provides that auxiliary aids must be provided unless the private entity “can demonstrate that offering a particular auxiliary aid would [1] fundamentally alter the measurement of the skills or knowledge the examination is intended to test or [2] would result in an undue burden” (Department of Justice, Examination and Courses, 1999). The regulation then provides a non-exhaustive list of auxiliary aids and services that may be required, including “taped examinations, interpreters[,] . . . Brailled or large print examinations[,] . . . qualified readers[,] . . . transcribers[,] . . . [or] other similar devices and actions” (Department of Justice, Examination and Courses, 1999). Therefore, according to the DOJ regulation, the private entity must administer the exam in such a way so as to best ensure that the exam accurately reflects the individual’s ability unless the accommodation or auxiliary requested would fundamentally alter the measurement of the skills the examination is supposed to test or place an undue burden on the private entity.

C.  Conflict Between and Summary of the Standards Set Forth Above – Reasonable Accommodation v. “Best Ensure”

Until recently, some courts have applied the “reasonable accommodation” standard rather than the DOJ’s “best ensure” standard when determining which accommodations a private entity is required to provide to an individual with a disability who is taking a professional examination. The DHHS originated the reasonable accommodation standard pursuant to its regulatory authority implementing the Rehabilitation Act (Enyart v. Nat’l Conference of Bar Exam’rs, Inc., 2011). This regulation provided that a recipient of federal funds “make reasonable accommodation to the known physical or mental limitations of an otherwise qualified handicapped applicant or employee unless the recipient can demonstrate that the accommodation would impose an undue hardship on the operation of its program or activity” (Department of Health and Human Services, Reasonable Accommodation, 2005).

Congress later incorporated the reasonable accommodation standard into Title I of the ADA, which governs employment (Enyart v. Nat’l Conference of Bar Exam’rs, Inc., 2011). Congress did not, however, incorporate the reasonable accommodation standard into Title III of the ADA, which governs professional examinations administered by private entities (Enyart v. Nat’l Conference of Bar Exam’rs, Inc., 2011). Rather, Section 12189 states that the private entity must offer the examination in a “place and manner accessible to persons with disabilities” or offer an alternative arrangement (The Americans with Disabilities Act of 1990). The “accessible” standard was interpreted by the DOJ to mean that the private entity must administer the examination in such a manner so as to “best ensure” that the results of the examination reflect the ability of the individual with a disability, and not some other factor (Department of Justice, Examinations and Courses, 1999). As the next section discusses, courts have varied in which standard they choose to apply, with some applying the “reasonable accommodation” standard and others applying the “best ensure” standard. This varying treatment by courts has resulted in varying accommodations being provided across the different jurisdictions.

III.  State of the Law

The vast majority of cases regarding appropriate testing accommodations for blind individuals taking high stakes examinations arise at the preliminary injunction stage, with the appellate court, if applicable, reviewing for an abuse of discretion (Enyart v. Nat’l Conference of Bar Exam’rs, Inc., 2011). To succeed at the preliminary injunction stage, the plaintiff:

seeking a preliminary injunction must show that: (1) she is likely to succeed on the merits, (2) she is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in her favor, and (4) an injunction is in the public interest. (Enyart v. Nat’l Conference of Bar Exam’rs, Inc., 2011).

Given the short amount of time that usually exists between the filing of the preliminary injunction and the date of the examination for which the individual is requesting review, there is a high probability that a preliminary injunction of this type will evade review, never having the chance to be heard before a court in time to have a meaningful impact on the affected party. Therefore, appellate courts choose to hear this type of claim because, even though the preliminary injunction would otherwise evade review, it is capable of being repeated without ever being addressed (Enyart v. Nat’l Conference of Bar Exam’rs, Inc., 2011).

A.  1993 - D’Amico v. New York State Bd. of Law Exam’rs

One of the first cases to address the appropriate accommodations to be provided to a visually impaired individual who applied to take the bar exam was D’Amico v. New York State Bd. of Law Exam’rs (1993). In D’Amico, the plaintiff, Marie C. D’Amico, was seeking, pursuant to Section 12132, a provision under Title II of the ADA governing public entities, and Section 12189 a preliminary injunction to compel the New York State Board of Law Examiners (the “Board”) to allow her, among other things, to take the exam over a four-day period. The Board, however, denied D’Amico’s requested accommodation to take the bar examination over an extended period, but granted her other requested accommodations.

Despite referencing Section 12189 and Title III of the ADA, the court stated that “[t]he ADA . . . requires the Board to make ‘reasonable accommodations’ under the circumstances in light of [D’Amico’s] disability” and that an individual factual inquiry must be made to determine whether the requested accommodation is reasonable (D’Amico v. New York State Bd. of Law Exam’rs, 1993). The court did not address the “accessibility” language in Section 12189 or the “best ensures” standard promulgated by the DOJ, which was enacted in 1991, two years before D’Amico (Nondiscrimination on the Basis of Disability, 1991). The court also failed to distinguish between those standards which should be applied under the first three titles of the ADA. Ultimately, the Western District of New York granted the plaintiff’s request for a preliminary injunction after a finding that the plaintiff’s requested accommodation was reasonable (D’Amico v. New York State Bd. of Law Exam’rs, 1993).

B.  1995 - Fink v. N.Y. City Dep’t of Pers.

A couple of years later, in Fink v. N.Y. City Dep’t of Pers. (1995), the Court of Appeals for the Second Circuit heard a similar case addressing what accommodations must be provided to visually impaired city employees taking the civil service promotional exam. In Fink, the plaintiffs brought the action under Section 504 of the Rehabilitation Act and argued that the city failed to accommodate their disabilities when taking the examination. While the city provided the plaintiffs with a tape recording of the examination, double the usual time to take the examination, a private room in which to take the examination, and a reader, the plaintiffs complained that the readers were disruptive and talked amongst themselves during the examination period.

Addressing Section 504, the court stated that “[w]here an institution has made reasonable accommodation to relieve a disabled person of the disadvantages of the disability, it will not be found to have discriminated, or practiced disability-based exclusion in violation” of the Rehabilitation Act (Fink v. N.Y. City Dep’t of Pers., 1995). The Second Circuit affirmed the district court’s summary judgment in favor of the defendants. Similar to the court in D’Amico v. New York State Bd. of Law Exam’rs (1993), however, the court in Fink v. N.Y. City Dep’t of Pers. (1995) did not address what standard would apply under Titles II or III of the ADA or the “best ensure” standard.

C.  2000 - Bartlett v. New York State Bd. of Law Exam’rs

The Court of Appeals for the Second Circuit addressed another disability accommodation issue in Bartlett v. New York State Bd. of Law Exam’rs (2000). The primary issue in Bartlett, a case with a long history, is whether the plaintiff has a disability within the meaning of the ADA. The plaintiff took the New York Bar Examination five times, applying for accommodations as a reading disabled individual for most of her attempts. Each time, however, the board administering the exam denied her requested accommodations. Bartlett then sued alleging violations of Title II of the ADA, Title III of the ADA, and Section 504 of the Rehabilitation Act.

The lower-level district court, relying on regulations promulgated under Title I of the ADA, had previously concluded that the plaintiff was disabled within the meaning of the ADA (Bartlett v. New York State Bd. of Law Exam’rs, 1997). The Second Circuit affirmed the district court’s holding (Bartlett v. New York State Bd. of Law Exam’rs, 1998) and the United States Supreme Court chose to hear the case and later voided the Second’s Circuit’s holding (New York State Bd. of Law Exam’rs v. Bartlett, 1999). After the United States Supreme court sent the case back to the appellate court for further action, the Second Circuit discussed both Titles II and III of the ADA and the Rehabilitation Act in determining whether plaintiff is disabled (Bartlett v. New York State Bd. of Law Exam’rs, 2000). The court, however, chose not to address Title III of the ADA or the Rehabilitation Act separately after determining that they both imposed largely the same requirements as Title II of the ADA. Because the entity administering the bar examination did not grant any of the plaintiff’s requested accommodations after determining that the plaintiff was not disabled, the court did not have the opportunity to review what constitutes an appropriate testing accommodation for an individual with a disability. The Second Circuit ultimately voided the district court’s decision and sent the case back to the district court to decide whether the plaintiff’s impairment substantially limited her with respect to the major life activity of reading or working, which, if decided in the affirmative, would give her a disability under the ADA and entitle her to some form of accommodation.

D.  2008 - Jaramillo v. Prof’l Examination Serv., Inc.

The District of Connecticut, in Jaramillo v. Prof’l Examination Serv., Inc. (2008), again did not address Title III of the ADA or the “best ensure” standard. In Jaramillo, a legally blind individual brought an action against the testing service and state health program supervisor, alleging failure to provide reasonable accommodations for a state licensing examination in marital and family therapy. The plaintiff requested an audio version of the exam or a computer with adaptive equipment in addition to her CCTV, but was only allowed the use of a CCTV and a live reader; she failed the exam twice using the provided accommodations.

Addressing the plaintiff’s argument at the summary judgment stage, before a full trial on the merits, under the Rehabilitation Act, the court stated that the relevant question for a jury under Section 504 is whether the accommodations provided were reasonable such that they provided meaningful access for the plaintiff, or whether they denied her access based solely on a disability (Jaramillo v. Prof’l Examination Serv., Inc., 2008). While the court did not address Title III of the ADA or the “best ensure” standard, the court did state that “several courts have made clear that the Rehabilitation Act and the Americans with Disabilities Act require only reasonable accommodations, not necessarily the particular accommodations an individual would prefer” (Jaramillo v. Prof’l Examination Serv., Inc., 2008). By referring to the reasonable accommodation standard under both the Rehabilitation Act and the ADA, the court seemingly ignored any distinction between what constitutes a reasonable accommodation based on the type of entity providing the examination, or the context of the claim. The court ruled against the plaintiff and denied her Section 504 claim for a reasonable accommodation in the form of adaptive equipment.

E.  2011 - Enyart v. Nat’l Conference of Bar Exam’rs, Inc.

In the last year, there have been a large number of cases addressing appropriate testing accommodations for blind or visually impaired individuals who are taking professional examinations. The first of these cases was Enyart v. Nat’l Conference of Bar Exam’rs, Inc. (2011). In Enyart, a blind law school graduate requested the use of a computer equipped with screen reading software during both the MPRE and the MBE. The district court issued a preliminary injunction granting Enyart her requested accommodation, the Ninth Circuit Court of Appeals affirmed after holding that the district court did not abuse its discretion, and the district court later granted a permanent injunction (Enyart v. Nat'l Conference of Bar Exam’rs, Inc., No. C 09-05191 CRB, 2011).

The Ninth Circuit’s analysis, however, differed from that applied by previous courts. Under the first prong of the preliminary injunction standard, which addresses whether the plaintiff is likely to succeed on the merits, the court addressed the applicable standard under Title III of the ADA (Enyart v. Nat’l Conference of Bar Exam’rs, Inc., 2011). The court stated that Title III, which governs professional licensing examinations, requires that entities offer examinations “in a place and manner accessible to persons with disabilities or offer alternative accessible arrangements for such individuals” (Enyart v. Nat’l Conference of Bar Exam’rs, Inc., 2011). The court then looked to the DOJ regulations interpreting “accessible” in the examination context, which state that the examination “[must be offered] so as to best ensure that . . . the examination results accurately reflect the individual’s aptitude or achievement level . . . rather than reflecting the individual’s [disability]” (Department of Justice, Examination and Courses, 1999). The defendant, however, argued against application of the “best ensure” standard and urged the court to apply the reasonable accommodation standard previously applied in other courts.

While the district court did not address the validity of the “best ensure” standard, holding that even if the reasonableness standard applied the plaintiff would have overcome the first prong of the preliminary injunction stage, the Ninth Circuit took the analysis one step further and applied Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc. (1984). Under Chevron, the court first looks at whether Congress has spoken on the issue at hand. Where Congress has not spoken, or there is an ambiguity, then the court will defer to the agency that has authority to promulgate regulations under the statute so long as the agency’s interpretation is reasonable (Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 1984). In Enyart, the court stated that the phrases “accessible” and “alternative accessible arrangements” in Section 12189 were ambiguous (Enyart v. Nat’l Conference of Bar Exam’rs, Inc., 2011). The court, therefore, applying a Chevron analysis, deferred to the DOJ’s reasonable interpretation of the statute. Because the DOJ interpreted Section 12189 to require that the examination be administered in way so as to “best ensure” that the results accurately reflect the individual’s disability, the court did not apply a “reasonable accommodation” standard. Rather, the court went on to expressly state that Congress incorporated the Rehabilitation Act’s “reasonable accommodation” standard into Title I of the ADA, but not into Title III, which only requires “accessibility” (Enyart v. Nat’l Conference of Bar Exam’rs, Inc., 2011).

By applying the “best ensure” standard, the court concluded that Enyart should be allowed to use screen reading software when taking the MPRE and the MBE, because screen reading software makes the exams “accessible” to Enyart “given her specific impairment and the specific nature of these exams” (Enyart v. Nat’l Conference of Bar Exam’rs, Inc., 2011). In what might be deemed to be an authoritative but not legally binding portion of the court’s opinion, the court also stated that testing accommodations should advance to keep pace with technological changes, are not static, and may go beyond those enumerated in the statute (Enyart v. Nat’l Conference of Bar Exam’rs, Inc., 2011). Therefore, by pointing out the evolving nature of technology, the court opened the door for additional accommodations in the future based on the unique situation of the disabled individual.

F.  2011 - Elder v. Nat’l Conference of Bar Exam’rs, Inc. and its Maryland Counterpart

Less than two weeks after the Enyart decision, a district court in the ninth circuit decided Elder v. Nat’l Conference of Bar Exam’rs, Inc. (2011), with essentially the same outcome. In Elder, the plaintiff moved for a preliminary injunction against the NCBE to compel the NCBE to allow him to use screen reading software on the MBE. The court granted Elder’s motion.

In Elder, however, the court expounded on the Enyart decision and stated that whether an accommodation meets the best ensures standard is determined on an individualized basis, not regarding the whole class of individuals with the same disability (Elder v. Nat’l Conference of Bar Exam’rs, Inc.,2011). Therefore, the court must consider which accommodation will make the examination at issue “accessible” to the person requesting the accommodation. Additionally, the court clarified that the “best ensures” standard is higher, and therefore more demanding on the part administering the examination, than the “reasonable accommodation” standard.

The court also mentioned an unpublished opinion from 2010, involving the same plaintiff, in the United States District Court for the District of Maryland (Elder v. Nat’l Conference of Bar Exam’rs, Inc.,2010). In that case, the plaintiff moved for a preliminary injunction against the NCBE to allow him the use of screen reading software. In determining whether to grant the requested injunction, the District of Maryland interpreted the term “accessible” from Section 12189 to mean “reasonably accessible,” therefore applying a reasonableness standard and not the higher “best ensures” standard found in the DOJ regulations and supported by Enyart (Elder v. Nat’l Conference of Bar Exam’rs, Inc.,2010). The Maryland court ultimately denied the plaintiff’s preliminary injunction. By applying a reasonableness standard to Section 12189, the Maryland court ignored the DOJ regulation and the trend of applying the best ensure standard, resulting in the denial of an accommodation that had been granted other jurisdictions.

G.  2011 - Bonnette v. D.C. Court of Appeals

Another recent case ruling in favor of a plaintiff seeking to compel an entity administering an examination to provide the requested accommodation is Bonnette v. D.C. Court of Appeals (2011). In Bonnette, however, the entity administering the examination was the D.C. Court of Appeals, a public entity. Similar to the aforementioned cases, in Bonnette, the plaintiff wanted to take the MBE portion of the D.C. bar exam using screen reading software but the defendant contended that the alternative accommodations it offered were sufficient. Bonnette also requested extended time to take the exam, a separate testing room, a scribe, and bottles of drinking water available as needed in arm’s length of the keyboard, all of which the defendant granted in one form or another. Citing to both Elder v. Nat’l Conference of Bar Exam’rs, Inc. (2011) and Enyart v. Nat’l Conference of Bar Exam’rs, Inc. (2011), the court granted the plaintiff’s motion for a preliminary injunction, requiring the defendant to allow Bonnette to use screen reading software when taking the exam.

Because the entity administering the MBE, however, was a public entity, the court based its decision on both Titles II and III of the ADA (Bonnette v. D.C. Court of Appeals, 2011). Title II provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services . . . of a public entity, or be subjected to discrimination by such entity” (The Americans with Disabilities Act of 1990). Furthermore, the regulations promulgated by the DOJ implementing Section 12132 state that public entities:

in providing any aid, benefit, or service, may not . . . on the basis of disability . . . [p]rovide a qualified individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others . . . .A public entity may not administer a licensing or certification program in a manner that subjects qualified individuals with disabilities to discrimination on the basis of disability, nor may a public entity establish requirements for the programs or activities of licensees or certified entities that subject qualified individuals with disabilities to discrimination on the basis of disability. . . .

A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity. (Department of Justice, General Prohibitions Against Discrimination, 2011).

Additional regulations promulgated by the DOJ provide that a public entity must furnish appropriate auxiliary aids and services, which will vary by individual, to allow individuals with a disability an “equal opportunity” to participate in the programs offered by the public entity (Department of Justice, General, 2011).

While these regulations seem to advocate for something slightly more than a reasonableness standard, the point becomes moot due to courts unanimously holding that Section 12189, which encompasses the “accessibility” and, through regulation, the “best ensures” standards, also applies to public entities and specifically to bar examinations (Bonnette v. D.C. Court of Appeals, 2011). Therefore, even though the organization administering the D.C. bar examination is a public entity, the court still applied the “best ensures” standard from the regulations implementing Title III of the ADA to find that the accommodation requested should be granted if that accommodation best ensures that the results of the examination will accurately reflect the individual’s ability and not her disability.

H.  2011 - Jones v. Nat’l Conference of Bar Exam’rs

In Jones v. Nat’l Conference of Bar Exam’rs (2011), the court also granted the plaintiff’s request for injunctive relief related to a request to use screen-reading software on the MPRE. This case is worth mentioning for a couple of reasons. First, the DOJ submitted a Statement of Interest, to which the court agreed, contending that the “best ensures” standard applies and not the reasonable accommodation standard (Jones v. Nat’l Conference of Bar Exam’rs, 2011). Second, in Jones, a court once again applied the Chevron analysis to find that the “best ensures” standard governs. The Jones court stated that perhaps the reason for the application of the “best ensures” standard in the Title III examination context, as opposed to the application of the “reasonable accommodation” standard in the Title I employment context, is that examinations are generally one-time events and cannot be adjusted over time (Jones v. Nat’l Conference of Bar Exam’rs, 2011). Through applying the “best ensures” standard, the Jones court further solidified the standard to be applied where a blind or otherwise disabled individual seeks an accommodation when taking a professional examination.

IV.  Implications for Practitioners and Families

While the “best ensures” standard is a significant improvement for blind and otherwise visually impaired individuals seeking to take a professional exam, the standard does not mean that a test-taker can request and receive any accommodation they prefer, or even those accommodations that the test-taker has found to be the most effective. Rather, the “best ensures” standard requires that private and public entities offering professional examinations administer the exam to an individual with a disability in such a way so as to ensure that the results of the examination reflect the individual’s ability. Because courts have stated that testing accommodations should advance to keep pace with technological changes, the types of accommodations available will continue to improve with technology as time goes on (Enyart v. Nat’l Conference of Bar Exam’rs, Inc., 2011). To meet this standard, entities offering professional examinations will need to make a case-by-case determination as to what accommodations should be granted for each individual who makes a request.

The “best ensures” standard does have a key exception, albeit one that may be difficult to prove. If the organization administering the examination can prove to a court that the accommodation requested would “fundamentally alter the measurement of the skills the examination is supposed to test or place an undue burden on the private entity” then the organization is not required to grant the requested accommodation (Department of Justice, Examination and Courses, 1999). An “undue burden” typically indicates an accommodation that would be prohibitively expensive.

V. Conclusion

Just as the protection of individuals with disabilities has evolved through the Rehabilitation Act and the ADA, so has the appropriate standard to apply where a blind or visually impaired individual requests certain accommodations when taking a high stakes examination. Whereas courts used to apply the “reasonable accommodation” standard under Section 504 of the Rehabilitation Act and Title I of the ADA to determine whether to grant a requested accommodation through issuing a preliminary injunction, courts have recently begun to apply the “best ensures” standard from the regulations implementing the “accessibility” language under Title III of the ADA. Because the “best ensures” standard is a higher standard than the “reasonable accommodation” standard, and offers a more individualized inquiry into what accommodation will best reflect the individual's aptitude, application of the “best ensures” standard is an improvement which courts should continue to apply.

References

Americans with Disabilities Act of 1990, Pub. L. No. 101-336, § 2, 42 U.S.C. § 12101 et seq. (1991).

Bartlett v. New York State Bd. of Law Exam’rs, 970 F. Supp. 1094, 1126 (S.D.N.Y. 1997)

Bartlett v. New York State Bd. of Law Exam’rs, 156 F.3d 321 (2d Cir. 1998).

Bartlett v. New York State Bd. of Law Exam’rs, 226 F.3d 69 (2d Cir. 2000).

Bonnette v. D.C. Court of Appeals, 2011 U.S. Dist. LEXIS 75076 (D.D.C. July 13, 2011).

Carter v. Bennett, 840 F.2d 63 (D.C. Cir. 1988).

Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).

D’Amico v. New York State Bd. of Law Exam’rs, 813 F. Supp. 217 (W.D.N.Y. 1993).

Department of Health and Human Services, Reasonable Accommodation, 45 C.F.R. pt. 84.12 (2005).

Department of Justice, Examinations and Courses, 28 C.F.R. pt. 36.309 (1999).

Department of Justice, General, 28 C.F.R. pt. 35.160 (2011).

Department of Justice, General Prohibitions Against Discrimination, 28 C.F.R. pt. 35.130 (2011).

Elder v. Nat’l Conference of Bar Exam’rs, Inc., No. JFM 10-CV-1418 (D. Md. Aug. 4, 2010).

Elder v. Nat’l Conference of Bar Exam’rs, Inc., 2011 U.S. Dist. LEXIS 15787 (N.D. Cal. Feb. 16, 2011).

Enyart v. Nat’l Conference of Bar Exam’rs, Inc., 630 F.3d 1153 (9th Cir. 2011).

Enyart v. Nat'l Conference of Bar Exam’rs, Inc., No. C 09-05191 CRB, 2011 U.S. Dist. LEXIS 122853 (N.D. Cal. Oct. 24, 2011).

Fink v. N.Y. City Dep’t of Pers., 53 F.3d 565 (2d Cir. 1995).

H.R. Rep. No. 101-485 (III).

Jaramillo v. Prof’l Examination Serv., Inc., 544 F. Supp. 2d 126 (D. Conn. 2008).

Jones v. Nat’l Conference of Bar Exam’rs, 2011 U.S. Dist. LEXIS 85137 (D. Vt. Aug. 2, 2011).

New York State Bd. of Law Exam’rs v. Bartlett, 119 S. Ct. 2388 (1999).

Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 56 FR 35544-01 (1991) (to be codified at 28 C.F.R. pt 367).

Rains, R. (1992). A Pre-History of The Americans with Disabilities Act and Some Initial Thoughts as to its Constitutional Implications. St. Louis University Public Law Review, 11, 185-202.

The Rehabilitation Act of 1973, 5 U.S.C. § 790 (1973).

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The Journal of Blindness Innovation and Research is copyright (c) 2014 to the National Federation of the Blind.