Examinations Disabilities Act

In 2009, Stephanie Enyart filed suit against the National Conference of Bar Examiners, Inc. following several denied requests for accommodations Enyart found necessary in order to take her Multistate Bar Exam (MBE) and the Multistate Professional Responsibility Exam (MPRE). In March 2009, April 2009, and November 2009, Enyart applied to take the MPRE and California Bar Exam with a series of requested accommodations. Enyart has Stargardt’s Disease, a degenerative disease affecting her vision, which has required her reliance on assistive technology. Her series of requests included but are not limited to extra time to take the exam, a private room, and the exam on a laptop equipped with JAWS and ZoomText software that allow her to read the exam. Of her requested accommodations, all were permitted except the use of the laptop with the programming. Due to several denials of this request, Enyart filed against the National Conference of Bar Examiners (NCBE), the State Bar of California, and ACT, a testing company for violating the Americas with Disabilities Act and failing to provide appropriate and reasonable accommodations to an individual with a disability.
The NCBE offered alternative accommodations including a human reader, an audio version of the exam on a CD, a Braille version of the test, and a CCTV (closed caption television) accompanied by a hard copy of the exam with larger text in white coloring on a black background. While these accommodations were historically sufficient for Enyart to take other large placement examinations, the progression of her disability as well as the scale of the exams will prove these accommodations as insufficient in comparison to the previously requested laptop and software.

The argument presented by Enyart was that such a prevention of reasonable accommodations is in violation of the Americans with Disabilities Act (ADA) and the Uhruh Act, California’s civil rights law. Within Title III of the ADA, those offering professional licensing examinations must “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) This section prohibits discrimination against an individual with a disability that may impair their ability to pursue a professional opportunity. The Department of Justice has implemented a regulation stating that the accommodations and the presentation of the exam must best exemplify the abilities of the individual with no reflection of his or her disability, but rather a pure measure of his or her aptitude on the examination material.

Enyart filed a preliminary injunction of which was appealed by the NCBE. A preliminary injunction essentially preserves the existing situation prior to the court’s final decision. In this situation, Enyart’s preliminary injunction would permit her usage of her requested accommodations on exams that have been applied for prior to the court’s decision. After learning of her score on an MPRE was not high enough and the exam must be retaken, a second preliminary injunction was submitted and granted by the district court, permitting her to take the MBE and MPRE on a computer with JAWS and ZoomText software.

II. Questions and Decisions

The court has deemed the alternative accommodations offered by NCBE will not be sufficient in making the test visually available to Enyart. Thus, the court decision requires the NCBE in providing and allowing the appropriate accommodations as requested by Enyart. As a result, both preliminary injunctions applied for by Enyart in order to take her MPRE and MBE prior to the final decision of the court case were granted. These were necessary to be granted so that she may apply to and sit, with the appropriate accommodations, for the exams that will take place prior to the court’s ultimate decision on the case.

III. Reasoning for Decisions

1) In determining the mootness of the case, it has been determined not yet moot as the situation in which an individual with disabilities requests accommodations for a professional licensing examination is subject to repetition. While a situation may be determined moot if the length of coverage by the decision is too timely to be decided appropriately or if the situation is capable of being replicated. In this situation, there is reason to infer that the situation of accommodation requests from the NCBE will occur again in the future and the time span of the case at hand is relatively short and, thus, appropriate decisions could not be made prior to the presentation of the examination.

2) With the request of preliminary injunctions comes a set of criteria that must be met in order for the injunction to be granted. Enyart must be likely to succeed on merit, to suffer irreparable harm, to have her interests in favor, and for the injunction to be in the public’s interest. The standard of the situation being in the best interest for the public took precedence for this case.

a. The NCBE is required to administer the exam in a way that best tests her aptitude rather than ability to sit for the exam as regulated by the Department of Justice.

b. In order for there to be a classification of irreparable harm, there must be a strong likelihood of harm to the individual whom has filed the injunction. It is established that Enyart will be affected in the sense of her loss of opportunity for normal life activity including the opportunity to pursue a profession as well as affected by professional stigma.

c. There must be a balance in the equity of the effects on each party; thus, the harm to Enyart and the harm to NCBE is compared. NCBE argues that the accommodation is costly and potentially breaks security protocol. This is invalidated by the money Enyart payed while filing the injunctions and the requirement that Enyart uses a laptop supplied by NCBE. The harm caused to NCBE is minimal in comparison to Enyart’s potential inopportunity to pursue her career choice.

d. Ultimately, the public interest is imperative in determining the granting of injunctions in this case. The ADA indicates the public interest in eradicating discrimination of those with disabilities. Thus, the public interest is upheld in the case of granting the injunctions.

IV. Personal Reflection

Following my evaluation of the court’s decision and the NCBE’s arguments, I am in support of the court’s decision to grant the preliminary injunctions. The presentation of the examination should be accommodated so that those with disabilities may have an equal chance of obtaining and understanding the questions and the answer choices offered. While I do believe that the accommodations initially offered by NCBE may be acceptable for some individuals in order for them to take the examination, each individual and their disability are idiosyncratic of each other and, thus, must customize their necessary accommodations to best fit their needs. Ultimately, the reasons used to back the granting of the preliminary injunctions were effectively supported and explained through previous court cases and the intentions of the creators of the Americans with Disability Act.

One aspect that was of particular interest to me was NCBE’s suggestion in Enyart’s practicing of law under the supervision of a licensed attorney. In my opinion, this is a discriminatory account and my interpretation of this suggestion is that, due to Enyart’s disability, she should only be practicing law under the guidance of another “more qualified” individual whom was capable of sitting for the exam perhaps without accommodations. This degradation is precisely the reason that the Americans with Disabilities Act was created as well as the state of California’s civil rights law called the Uhruh Act. While this suggestion by the NCBE was used to explain how the situation causes irreparable harm to Enyart, in this paper, it does not suggest the discriminatory factor of such a suggestion other than it prohibits her pursuing of her chosen profession.

Furthermore, I found the reasoning of balance of merits to be quite interesting. Without having much of a background in the field of law, I was unaware of such an explanation. While I understand that the purpose of the court is to provide justice and equity among its citizens, I had not previously reviewed a court case that evaluated the balance of merits. It had been decided that the harm brought upon by the accommodations being granted to Enyart are minimal in respect to the harm brought upon Enyart should her accommodations for the examination not be granted to her.

The ruling of this court case established a ruling to uphold the American with Disabilities Act’s code concerning professional licensing examinations. This is extremely imperative to the successful pursuing of professional careers by individuals with disabilities. While each primary, secondary, college, university, and trade school may have their own method for implementing their examinations as well as a specific procedure for requesting reasonable accommodations and how these accommodations are managed, state and federal level examinations such as the bar are offered via a private entity and, thus, may deem their own control over the accommodations made. However, the Department of Justice published a regulation for these private testing agencies that require the test to be administered to an individual with any range of disability in the manner best fit to assess an individual’s knowledge and aptitude.

This court case is yet another example of the strides that must be taken in order to diminish the discrimination that is geared toward individuals with disabilities. While many people imagine discrimination to be in the form of exclusion and name calling, it also takes form as lack of accommodation, lack of support toward success, and the burden that others believe individuals with disabilities impose. Individuals with disabilities are functioning members of our society and act as role models to various communities just as Enyart can potentially become within the lawyer community now that she has been permitted to take her MPRE and MBE with the appropriate and reasonable accommodations.

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