Thanks for visiting! Welcome to a new way to research case law. You are viewing a free summary from Descrybe.ai. For citation and good law / bad law checking, legal issue analysis, and other advanced tools, explore our Legal Research Toolkit — not free, but close.
Bonnette v. District of Columbia Court of Appeals
Citation: Not availableDocket: Civil Action No. 2011-1053
Court: District Court, District of Columbia; July 13, 2011; Federal District Court
Original Court Document: View Document
Plaintiff Cathryn Jeanne Bonnette, a legally blind law school graduate, filed a lawsuit against the District of Columbia Court of Appeals and the National Conference of Bar Examiners (NCBE) to obtain permission to take the July 2011 Multistate Bar Exam using a computer with the JAWS screen-reading program, which is essential for her due to her visual impairment. She argues that the alternative accommodations proposed by the Defendants, such as a human reader or an audio CD of the exam, do not meet her accessibility needs and violate the Americans with Disabilities Act (ADA). The Court is currently considering Bonnette's Motion for Preliminary Injunction alongside Defendants' motions for summary judgment and dismissal. After reviewing the motions, supporting documents, and relevant legal standards, the Court has decided to deny the Defendants' motions and grant Bonnette's motion for preliminary injunction. The background outlines the requirements for becoming a licensed attorney in the District of Columbia, which necessitates passing the D.C. Bar Examination, administered twice yearly. The examination consists of the Multistate Bar Examination (MBE), the Multistate Performance Test (MPT), and the Multistate Essay Examination (MEE). The MBE, a standardized, secure test developed by NCBE, consists of 200 multiple-choice questions and is utilized by the majority of states as part of their bar examinations. NCBE employs a process known as "equating" to ensure the consistency of scores across different test administrations. Examination security is essential in administering the Multistate Bar Examination (MBE). Unauthorized disclosure of exam questions leads to their retirement and replacement, costing the National Conference of Bar Examiners (NCBE) $300,000 and extensive staff hours for each exam form. NCBE publishes MBE test booklets months in advance, which jurisdictions order based on registered candidates. Jurisdictions are responsible for administering the MBE alongside other bar exam components, adhering to strict security protocols outlined in the "MBE Conditions of Use." These protocols include maintaining a documented chain of custody, securing test booklets, minimizing communication among examinees through seating arrangements, and screening personnel. The MBE must be administered no earlier than the last Wednesday of February or July. Examinees are prohibited from bringing written materials or personal belongings to their seats and must be seated in straight rows without computers. Accommodations for disabled individuals are provided, with NCBE offering various formats for all examinations, including large print, Braille, and audio versions. Between 2000 and 2010, jurisdictions ordered around 484 audio versions and 92 Braille forms. Applicants for accommodations on the D.C. Bar Examination must complete an Eligibility Questionnaire to document their disabilities and previous accommodations. The Committee on Admissions reviews requests on a case-by-case basis, having received approximately 125 accommodation requests in the last five years, primarily for visual impairments. The Committee has addressed five accommodation requests from visually impaired individuals over the past nine years, offering various supports such as Brailled and large print exams, audio formats, extended time, reader assistance, enhanced lighting, and the use of dictating devices and laptops for specific components. However, no visually impaired individual has received computer-based testing accommodations for the MBE portion of the exam. Plaintiff Cathryn Bonnette, an educated resident of Arlington, Virginia, applied for the July 2011 D.C. Bar Examination. She holds degrees from the University of Michigan, Fuller Seminary, and Pepperdine University, and has been progressively blind due to retinopathy for around thirty years, with total blindness in both eyes currently. Bonnette relies on JAWS (Job Access With Speech), a screen reading software, to navigate text and perform reading tasks independently. Since 2001, she has depended solely on JAWS for reading, which allows her to use key commands for efficient navigation and comprehension of text, mimicking her pre-visual impairment reading experience. Experts, including Dr. Alexis G. Malkin and Fredric K. Schroeder, emphasize the critical role of screen reading software as an essential aid for blind individuals, highlighting its advantages in efficiency, proficiency, privacy, and independence over traditional human readers. Bonnette's learning style, rooted in visual techniques, necessitates the use of JAWS to effectively conceptualize text layout and structure for comprehension. Dr. Schroeder details that blind individuals, especially those who did not learn Braille as children, typically require extensive practice to learn reading via human readers. He emphasizes that screen access software, which can be tailored to individual needs, is often recommended for those proficient with computers. For example, individuals who were visual learners before losing their sight may benefit from software that combines visual and auditory outputs. Transitioning to solely auditory reading can take considerable time, but proficiency in screen access software eventually allows readers to focus on content rather than the reading process. Bonnette, a plaintiff, recounts her experiences with accommodations during her education. While in law school (2001-2003), she was only offered human readers for exams, despite using JAWS software as her primary reading method, which she believes adversely affected her grades. In contrast, during her graduate studies at Pepperdine, she successfully used JAWS for assignments, reflecting her actual abilities more accurately. Bonnette used a human reader for the LSAT and was provided various accommodations for the MPRE in 2001 and 2002, achieving qualifying scores for bar admission in some jurisdictions. Bonnette attempted the California Bar Examination four times between 2003 and 2005, relying on human readers and scoring between 132 and 142 on the MBE portion. To pass the D.C. Bar, a score of 266 is required, which she did not achieve. She attributes her failures partly to difficulties in reading examination content with human readers, who often misinterpreted her requests, mispronounced words, and struggled with technical terms, causing frustration and distraction. Bonnette has not worked with human readers for testing since her last bar exam in July 2005, finding the experience challenging. After her education, she worked with the Department of Veterans Affairs and the National Association of Guide-Dog Users. Bonnette primarily utilized JAWS for her work-related reading, resorting to human readers only for filling out forms and reading brief handwritten texts. She has never used audio CDs for examinations, expressing a lack of familiarity with this method, which she believes would hinder her ability to operate the controls effectively. Although she has received minimal Braille instruction, she lacks the necessary skills to read complex texts in an examination context. On December 29, 2010, Bonnette requested accommodations for the February 2011 D.C. Bar Examination, submitting documentation of her disability and seeking: 1) a laptop with JAWS for reading and writing, 2) double time, 3) a separate testing room, 4) a scribe for paperwork, and 5) easy access to water. The Committee approved most of her requests for the MEE and MPT portions, but denied her laptop request for the MBE due to NCBE regulations. Instead, they offered an audio CD or a human attorney reader, which Bonnette found unsuitable, leading her to withdraw and plan for the July 2011 exam. For the July 2011 MBE, Bonnette reapplied on May 10, 2011, again requesting JAWS. After negotiations, the Committee proposed accommodations including an audio CD, a live reader, Brailled or large print versions, a practice CD, pre-examination meetings with the reader, additional testing time, and rest breaks. However, NCBE rejected the use of JAWS, even if reimbursed for associated costs, and has not engaged with Bonnette regarding her accommodation requests. Bonnette is committed to practicing law and fears that being forced to use alternative reading methods will lead to inaccurate evaluations of her abilities, as experienced during law school and the California Bar Exam. Bonnette is dedicating the summer to prepare for the July 2011 D.C. Bar Examination, actively studying full-time in a bar preparation class and forgoing employment opportunities. In 2008, NCBE piloted administering the Multistate Bar Examination (MBE) on laptops with JAWS software but found significant security risks that hindered large-scale implementation. NCBE is concerned about the potential for test questions to be copied if examinees use their own laptops and acknowledges that even with their own laptops, security risks remain due to jurisdictional custody. Security issues are also present with paper exams. Expert Michael Shamos suggests that risks can be mitigated through measures like password encryption and proctor oversight, arguing that compromising exam security would require collusion from examiners, a risk shared with paper-based formats. Legal actions have been taken regarding accommodations for visually impaired examinees. Stephanie Enyart won preliminary injunctions to take the MBE and MPRE using JAWS and ZoomText, which were affirmed by the Ninth Circuit. In contrast, a 2010 case in Maryland saw a denial of a similar request for a preliminary injunction. NCBE claims high costs for providing laptops for the MBE, estimating around $5,000 per examinee, including hardware, software, and support staff time. In fiscal year 2010, NCBE reported $12.3 million in income against $12.1 million in expenses. Although the Court of Appeals offered to reimburse NCBE for administering the MBE to Bonnette with JAWS, NCBE declined the offer, despite an operations budget of $185,660,000 for fiscal year 2011. Offering Bonnette the opportunity to take the Multistate Bar Examination (MBE) using JAWS, a screen access software, is critical for accurately reflecting her aptitude. Expert declarations indicate that alternative options, like a human reader or audio CD, fail to provide effective navigation and access necessary for Bonnette’s performance. Dr. Malkin asserts that JAWS allows precise navigation through text, which is essential for Bonnette to demonstrate her true abilities without the influence of her disability. Dr. Bruce Britton, a cognitive psychology expert, highlights that Bonnette's fluency with JAWS enables her to adjust reading speed for better comprehension and facilitates complex problem-solving required by the MBE, which demands extensive regressions to previously encountered text. He emphasizes that visual readers can perform these regressions quickly, while Bonnette using a human reader would face significant delays due to the time required to communicate her requests, resulting in greater memory decay and interference, ultimately impairing her performance. The combination of these factors underscores the necessity of allowing Bonnette to utilize JAWS for the MBE to accurately assess her skills and knowledge. Dr. Britton asserts that using an audio CD for reading is less efficient than employing verbal commands with a human reader, as the scanning process lacks precision. He highlights that sighted readers can visually skim text, a capability that JAWS software mimics but does not fully replicate in human reading. Practiced skills, such as reading with JAWS, become automatized, requiring less working memory and allowing for greater cognitive capacity for other tasks. Consequently, Bonnette’s familiarity with JAWS over alternative reading methods may hinder her test performance due to increased cognitive demands. Dr. Britton concludes that JAWS is the most effective accommodation to ensure that Bonnette’s results on the MBE reflect her true abilities rather than her disability. Regarding legal standards, a preliminary injunction is an extraordinary measure that necessitates a clear demonstration of entitlement. The plaintiff must show (1) likelihood of success on the merits; (2) likelihood of irreparable harm without the injunction; (3) that the balance of equities favors the plaintiff; and (4) that the injunction serves the public interest. These factors are evaluated on a sliding scale, allowing for flexibility if the plaintiff shows strong evidence in one area. A lack of substantial likelihood of success on the merits negates the need to assess the other factors. For a motion to dismiss, a complaint must provide a concise statement of the claim under Federal Rules of Civil Procedure. It must give the defendant fair notice of the claim and its basis. While detailed allegations are not required, the complaint must present more than mere labels or conclusions, and it should provide sufficient factual content to establish a plausible claim. All factual allegations in the complaint are accepted as true, and the court must interpret them liberally in favor of the plaintiff. However, a mere possibility of unlawful action is insufficient; the facts must allow for a reasonable inference of the defendant's liability. Summary: Summary judgment is granted when the movant demonstrates no genuine dispute over material facts and is entitled to judgment as a matter of law. A party claiming a fact is undisputed must support this with specific evidence from the record, such as depositions, documents, or affidavits. If a party fails to substantiate its assertions or address opposing claims as required by Rule 56(c), the court may treat the fact as undisputed. Courts evaluating summary judgment do not assess credibility or weigh evidence, but must view it favorably for the nonmoving party. Genuine disputes affecting the lawsuit's outcome must be based on sufficient admissible evidence; mere existence of a factual dispute is not enough to preclude summary judgment. Disputes must be substantial enough for a reasonable jury to decide in favor of the nonmoving party. The adverse party must provide more than speculative doubt regarding material facts. Conclusory assertions without factual support cannot create a genuine dispute. In the case discussed, Bonnette argues for the right to take the MBE using a computer with JAWS under the Americans with Disabilities Act (ADA), while Defendants assert that their accommodations, such as using a human reader or audio CD, are legally sufficient. The NCBE contends that it is not subject to ADA requirements as it does not administer the MBE to Bonnette. The court will analyze Bonnette's request for a preliminary injunction by examining the likelihood of success on the merits, particularly regarding the ADA's provisions against discrimination in public services and accommodations. Title II of the ADA prohibits discrimination against qualified individuals with disabilities by public entities, ensuring they are not excluded from participation in or denied benefits of services, programs, or activities. The Department of Justice's implementing regulations clarify that public entities must provide aids, benefits, or services equally effective for individuals with disabilities as those provided to others. Public entities cannot administer licensing or certification programs in a discriminatory manner and must make reasonable modifications to policies and practices to avoid discrimination unless such modifications would fundamentally alter the nature of the service. Additionally, public entities are required to ensure effective communication with individuals with disabilities and provide necessary auxiliary aids and services, taking into account the specific needs of the individual. These aids must be timely, accessible, and respectful of the individual's privacy. The regulations are authoritative unless found arbitrary or contrary to the statute. Furthermore, Title III mandates that examinations related to licensing or education must be accessible to individuals with disabilities or offer alternative arrangements. The Court of Appeals contends that it is not classified as a “person” under the relevant provision, arguing that its inclusion in Title III indicates it does not apply to public entities. However, Title III's examination provision has been consistently interpreted to apply to public entities, particularly in the context of state bar examinations, as supported by case law (Bartlett v. N.Y. State Bd. of Law Examiners). This interpretation aligns with the ADA's definition of “person,” which encompasses public entities, and is consistent with the nondiscrimination requirements of Title II. Therefore, the Court concludes that this provision applies to the Court of Appeals. Regarding NCBE’s motion to dismiss, NCBE claims it does not “offer” the MBE, asserting that the Court of Appeals administers the exam while NCBE merely provides testing materials. The Court of Appeals counters that NCBE imposes significant restrictions on MBE use for the D.C. Bar Exam, suggesting NCBE effectively “offers” the MBE. NCBE's narrow interpretation of the “place and manner” language in the statute is not supported by the Justice Department’s regulations, which indicate that modifications to an examination can include changes in administration practices. Thus, the Court denies NCBE’s motion to dismiss, determining that whether NCBE offers the MBE is a factual issue unsuitable for resolution at this stage. The parties have extensively discussed the implementing regulation for this provision, which mandates that any private entity offering an examination must ensure that the exam accurately reflects the abilities of individuals with disabilities. Required modifications may include adjustments to the time allowed for completing the exam and alterations in how the exam is administered. NCBE argues that the provisions apply only to “public accommodations” under Title III and contends that Title III regulations do not necessitate modifications to its services. 12189 applies to "any person" offering examinations, not limited to public accommodations, thus Title III regulations on public accommodations are irrelevant to the current legal issue. The plaintiff seeks discovery on this matter. Private entities providing covered examinations must offer appropriate auxiliary aids for individuals with sensory, manual, or speaking impairments unless they can prove that providing such aids would fundamentally alter the exam's purpose or impose an undue burden. Auxiliary aids may include taped exams, interpreters, Brailled or large print materials, and transcribers. While 28 C.F.R. 36.309 applies only to private entities like NCBE, the Justice Department views these regulations as informative for assessing discriminatory actions by public entities in testing contexts. The Court acknowledges the Justice Department's interpretation as persuasive authority, particularly regarding the accessibility of the MBE. The Court rejects NCBE's claim that the "best ensure" requirement exceeds the ADA's limits, affirming that the ADA's accessibility mandate is ambiguous enough to warrant deference to the Justice Department's regulations. Defendants argue that the accommodations provided to Bonnette, including a human reader and an audio CD with extra time, are legally sufficient and cite the ADA's definitions of auxiliary aids, which support their offered alternatives as compliant. Lists of auxiliary aids and services are illustrative, not exhaustive, and the use of such aids by others with visual impairments does not guarantee their accessibility to the Plaintiff under the law. The Ninth Circuit in Enyart v. Nat’l Conference of Bar Examiners clarified that entities must ensure exam accessibility beyond merely offering listed auxiliary aids, aligning with Congressional intent for aids to evolve with technological advancements. Defendants claim entitlement to judgment based on the Justice Department's approval of their accommodations in prior settlement agreements with other entities. However, such settlements do not establish definitive interpretations of regulations applicable to third parties. The ADA mandates "reasonable" accommodations, but the standards from cases like Fink and Jaramillo, which pertain to the Vocational Rehabilitation Act, are not directly applicable to ADA Title III claims, as Congress did not incorporate a "reasonable accommodation" standard into ADA § 12189. Moreover, while Title II specifies that public entities must make reasonable modifications, this does not supersede specific testing guidance. The ADA does not require Defendants to provide the exact auxiliary aid requested by the examinee, as confirmed by case law. Public entities are mandated by 28 C.F.R. 35.160(b)(2) to prioritize requests from individuals with disabilities, but they are not obligated to fulfill such requests if an effective alternative means of communication is available. The effectiveness of communication methods is assessed contextually, considering factors such as the communication type, number of participants, and the communication's significance. The method employed by the individual and the communication's complexity are also relevant. Although the Justice Department’s guidance on Title III regulations emphasizes flexibility in auxiliary aids and does not require the use of the most advanced technology as long as communication is effective, this guidance does not directly apply to Title II. Title III does not impose a requirement for public accommodations to give primary consideration to individuals' requests. However, Title II’s requirement may be incorporated into broader regulations under the ADA. Additionally, the Equal Employment Opportunity Commission (EEOC) clarifies that employers must ensure tests for individuals with disabilities accurately measure their skills without being influenced by their disabilities, but they are not required to provide every applicant with their preferred test format. Ultimately, neither Title II nor Title III obliges Defendants to grant Bonnette her preferred accommodation simply because it is her choice, nor does it confirm that the alternatives offered by Defendants are legally adequate. Both Title II regulations for the Court of Appeals and Title III regulations for NCBE require that Bonnette receive an accommodation at least "as effective" as her preferred option, which is the JAWS software. If Bonnette shows that the alternative accommodations offered do not allow her to access the MBE as effectively as JAWS, the Defendants must provide JAWS unless they can prove it would fundamentally alter the exam or impose an undue burden. The D.C. Circuit has indicated that the effectiveness of accommodations depends on context. For instance, in American Association of People with Disabilities v. Shelley, the court found that the ADA does not mandate accommodations that replicate the voting experience of non-disabled individuals. However, in the context of testing, especially for complex assessments like the MBE, effective communication of test content is crucial. Bonnette has presented substantial evidence that JAWS is the most effective accommodation for her visual impairment, enabling her to interact with the test materials in a way that facilitates comprehension and focus. The Defendants acknowledge Bonnette's status as a visual learner and do not contest that providing JAWS would be the optimal outcome for her accommodation needs. Defendants contend that their proposed accommodations, specifically a human reader or an audio CD, comply with the ADA. Bonnette, however, argues that a human reader is ineffective due to her documented struggles in communicating about reading strategies during exams. Despite being offered an attorney as a reader and pre-examination meetings, Bonnette would still face distractions and disruptions that would hinder her critical reasoning during the MBE. Defendants assert that Bonnette's past experiences with human readers on other tests validate this accommodation; however, her previous reliance does not guarantee accessibility or accurately reflect her achievement level on the MBE. Additionally, Title II regulations mandate that accommodations protect the individual's privacy and independence, which human readers fail to provide compared to an audio CD or JAWS software. While an audio CD offers some control, Bonnette lacks familiarity with it, making it a less favorable option than JAWS, which allows for enhanced control and text navigation. Expert testimony supports that Bonnette would be at a disadvantage with either a human reader or audio CD. Defendants argue that research indicates blind individuals' preferences do not always correlate with their performance, but the studies cited are inconclusive and do not pertain directly to Bonnette's situation. Defendants' objection to the testimony as speculative was rejected by the Court, which deemed the testimony credible and rooted in the evaluators’ expertise and experience regarding Bonnette's needs. The absence of rebuttal expert testimony from Defendants further supported this finding. The Court determined that Bonnette is likely to demonstrate that the accommodations provided by Defendants do not meet the accessibility standards required by the ADA. This determination is provisional and based on the current record, with room for further evidence regarding the effectiveness of the audio CD option versus JAWS. Bonnette only needs to show a substantial likelihood of success, which the Court found she has met. Defendants expressed concern that accommodating Bonnette with JAWS could lead to additional obligations if she needed to retake the exam with a different software version. However, the Court clarified that the ADA does not necessitate providing Bonnette with her requested accommodation in every scenario, as long as she is granted the specific accommodation of using JAWS with a laptop for the MBE, along with previously allowed accommodations. NCBE argued that providing JAWS would impose an undue burden due to costs and administrative challenges. The Court dismissed this argument, noting that measures could be taken to maintain exam security comparable to the traditional format, and that the estimated $5000 cost is not excessive for an organization with a budget exceeding $12 million. Consequently, the Court found NCBE's defense of undue burden insufficient to challenge Bonnette's claim, concluding that she is likely to succeed on the merits. Defendants' motions for summary judgment are denied because they have not established a likelihood of prevailing on the merits. The Court will evaluate whether preliminary injunctive relief is justified, focusing on the potential for irreparable harm. For a preliminary injunction, the plaintiff must show a clear and imminent risk of irreparable harm without it. Bonnette asserts that she will suffer such harm if she cannot take the July 2011 Multistate Bar Examination (MBE), as she faces either discriminatory conditions or a significant delay until February 2012, hindering her ability to practice law. The Court recognizes that delays in taking the MBE impede Bonnette's professional aspirations, which constitute irreparable harm beyond mere financial loss, as established in precedent. Defendants reference cases where courts found no irreparable harm, but those cases differ significantly from Bonnette's situation. The Court notes Bonnette's long pursuit of a law license and her extensive preparation for the MBE, which would be wasted if she must defer the exam. These factors collectively suggest that Bonnette would likely suffer irreparable harm if she is barred from taking the July 2011 MBE. Bonnette faces potential irreparable harm from being forced to take the D.C. Bar Exam (MBE) under discriminatory conditions, as she may not pass without her requested accommodations, such as a computer equipped with JAWS. Legal precedents indicate that taking the exam under such conditions constitutes irreparable injury, reinforcing Bonnette's claim. The court credits Bonnette’s testimony regarding the humiliation and frustration she would experience without her natural reading method, noting that damages are not recoverable under the ADA, which allows only for injunctive relief. In weighing the balance of equities, the court finds that while Defendants argue they would face serious harms, including security risks and costs, they have previously administered the exam securely in a computer format. Bonnette's offer to post a $5000 bond to cover these costs mitigates the burden on Defendants. Hence, the court concludes that the equities favor Bonnette. Regarding public interest, the court acknowledges the importance of both ADA compliance and the integrity of the attorney licensure process. However, it determines that the security of the MBE will not be compromised by providing Bonnette with the necessary accommodations. Ultimately, the court finds that Bonnette is likely to succeed on her claim, will suffer irreparable harm without injunctive relief, and that both the balance of equities and public interest support her case. Therefore, the court orders Defendants to allow Bonnette to take the MBE using a laptop with JAWS during the July 2011 administration and requires her to post a bond for compliance costs. The court also denies NCBE's motion to dismiss and rejects Defendants’ motions for summary judgment, as the undisputed facts do not warrant their relief.