Bar Exam Enyart Opp Cert

8/6/2019 Bar Exam Enyart Opp Cert

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No. 10-1304

I N T HE

N ATIONAL CONFERENCE OF B AR E XAMINERS , Petitioner ,

v.

STEPHANIE ENYART ,

Respondent.

On Petition for a Writ of Certiorarito the United States Court of Appeals

for the Ninth Circuit

BRIEF IN OPPOSITION

Kevin K. RussellGOLDSTEIN , HOWE &

RUSSELL , P.C.7272 Wisconsin Ave.Suite 300Bethesda, MD 20814

Jeffrey L. FisherSTANFORD L AW SCHOOL

SUPREME COURT LITIGATION CLINIC

559 Nathan Abbott WayStanford, CA 94305

Scott C. LaBarreL AB ARRE L AW OFFICES , P.C.

1660 S. Albion St.,Suite 918Denver, CO 80222

Laurence W. Paradis Counsel of Record

DISABILITY RIGHTS ADVOCATES 2001 Center St.,3d FloorBerkeley, CA 94704(510) [email protected]

Daniel F. GoldsteinBROWN , GOLDSTEIN

& LEVY, LLP120 E. Baltimore St.Suite 1700Baltimore, MD 21202


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QUESTIONS PRESENTEDTitle III of the Americans With Disabilities Act

requires that a party administering professionallicensing examinations offer such examinations . . .in a place and manner accessible to persons withdisabilities or offer alternative accessiblearrangements for such individuals. 42 U.S.C. 12186(b). Two decades ago, the Attorney Generalexercised his delegated rulemaking authority toprovide that covered examinations must be

administered so as to best ensure that, when theexamination is administered to an individual with adisability that impairs sensory, manual, or speakingskills, the examination results accurately reflect theindividuals aptitude or achievement level, subject toundue burden and fundamental alteration defenses.28 C.F.R. 36.309. The Ninth Circuit in this casebecame the first court of appeals to consider the

validity of the regulations best ensure standard.The Questions Presented are:

1. Whether this regulation represents areasonable construction of the statutory term[s].Chevron v. Natural Res. Def. Council , 467 U.S. 837,840 (1984).

2. Whether the court of appeals erred in itsapplication of the irreparable harm standardestablished in Winter v. Natural Resources DefenseCouncil , 129 S. Ct. 365 (2008), to the facts of thisparticular case.


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TABLE OF CONTENTS

QUESTIONS PRESENTED ......................................... i

STATEMENT OF THE CASE ..................................... 1

I. Introduction ........................................................... 1

II. Statutory And Regulatory Background ................ 2

A. Statute ............................................................ 2

B. Implementing Regulations ............................. 3

III. Factual And Procedural Background ................... 5

REASONS FOR DENYING THE WRIT ................... 14

I. The Ninth Circuits Decision Is Correct. ............ 14

A. The Regulation Is A ReasonableConstruction Of Section 12189. ................... 15

B. Petitioner Is Wrong To The Extent ItClaims That The Ninth CircuitMisapplied The Regulation. ......................... 22

II. There Is No Conflict Over The Validity Of

The Attorney Generals Testing Regulation. ...... 24

A. Only The Ninth Circuit Has AddressedThe Validity Of The Regulation. .................. 24

B. Petitioners Citation To Cases InvolvingOther Provisions And Statutes Does NotEstablish A Circuit Conflict WarrantingThis Courts Review. ..................................... 27

III. This Case Is A Poor Vehicle For Review. ........... 29

A. Deciding The First Question Presented

Would Not Affect The Outcome Of ThisCase. .............................................................. 30


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B. The Procedural Posture Of The CaseRenders It A Poor Vehicle For Review. ....... 31

IV. The Decision Below Correctly Applied ThisCourts Precedent On Irreparable Harm AndDid Not Create A Circuit Split. .......................... 32

CONCLUSION .......................................................... 36

APPENDIX, Statement Of Interest Of TheUnited States Of America In Opposition ToThe Motion To Dismiss, Elder v. Natl.Conference of Bar Examrs , No. 10-CV-01418(N.D. Md. July 9, 2010) ....................................... 1a


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TABLE OF AUTHORITIESCases

Bartlett v. N.Y. State Board ,970 F. Supp. 1094 (S.D.N.Y. 1997),affd in part and vacated in part on other

grounds , 156 F.3d 321 (2d Cir. 1998) .................... 28 Bragdon v. Abbott ,

524 U.S. 624 (1998) ................................................ 21 Brown v. Chote ,

411 U.S. 452 (1973) ................................................ 31Chevron U.S.A., Inc. v. Natural Res. Def.

Council, Inc. ,467 U.S. 837 (1984) .......................................... 11, 15

Christensen v. Harris County ,529 U.S. 576 (2000) ................................................ 24

DAmico v. N.Y. State Bd. of Law Examrs ,813 F. Supp. 217 (W.D.N.Y. 1993) ......................... 35

Doe v. N.Y. Univ. ,666 F.2d 761 (2d Cir. 1981) ....................... 33, 34, 35

Easley v. Cromartie ,532 U.S. 234 (2001) ................................................ 30

Fink v. N.Y. City Dept of Personnel ,53 F.3d 565 (2d Cir. 1995) ..................................... 29

Florida Bd. of Examrs re S.G. ,707 So. 2d 323 (Fla. 1998) ...................................... 26

Gonzalez v. Natl Bd. of Med. Examrs ,225 F.3d 620 (6th Cir. 2000) .................................. 25

Gresham v. Windrush Partners, Ltd. ,

730 F.2d 1417 (11th Cir.) ....................................... 35 Hamilton-Brown Shoe Co. v. Wolf Bros. & Co. ,

240 U.S. 251 (1916) ................................................ 31


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In re Reasonable Testing Accommodationsof Lafleur ,722 N.W.2d 559 (S.D. 2006) ................................... 27

Martin v. Helstad ,699 F.2d 387 (7th Cir. 1983) ............................ 34, 35

McGuinness v. Univ. of N.M. Sch. of Med. ,170 F.3d 974 (10th Cir. 1998) ................................ 29

Moritsky v. Broward County ,80 F.3d 445 (11th Cir. 1996) .................................. 29

Neil v. Biggers ,409 U.S. 188 (1972) ................................................ 31

Panazides v. Va. Bd. of Educ. ,13 F.3d 823 (4th Cir. 1994) .............................. 28, 29

Petition of Rubenstein ,637 A.2d 1131 (Del. 1994) ...................................... 26

Powell v. Natl Bd. of Med. Examrs ,364 F.3d 79 (2d Cir. 2004) ..................................... 27

Shalala v. Guernsey Meml Hosp. ,514 U.S. 87 (1995) .................................................. 24

Soignier v. Am. Bd. of Plastic Surgery ,92 F.3d 547 (7th Cir. 1996) .................................... 25

United States v. Armour & Co. ,402 U.S. 673 (1971) ................................................ 23

Univ. of Texas v. Camenisch ,451 U.S. 390 (1981) ................................................ 32

Va. Mil. Inst. v. United States ,508 U.S. 946 (1993) ................................................ 31

Winter v. Natural Res. Def. Council , Inc. ,

129 S. Ct. 365 (2008) .................................... 8, 32, 33


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Statutes

Americans With Disabilities Act,42 U.S.C. 12101 et seq. .............................. passim42 U.S.C. 12101(b)(1) ............................................ 242 U.S.C. 12111(7) ............................................... 2842 U.S.C. 12112(b) ............................................... 1842 U.S.C. 12112(b)(7) ...................................... 3, 2042 U.S.C. 12132 ................................................... 1942 U.S.C. 12182(b) ............................................... 19

42 U.S.C. 12182(b)(2)(A)(ii) ................................. 1942 U.S.C. 12186(b) ................................................. 342 U.S.C. 12189 ........................................... passim42 U.S.C. 12189(a) ............................................... 2842 U.S.C. 12201(a) ........................................... 3, 21

Section 504 of the Rehabilitation Act of 1973,29 U.S.C. 794 ............................................... passim

Regulations 28 C.F.R. 36.309(b) ................................................. 2628 C.F.R. 36.309(b)(1)(i) .............................. 2, 5, 9, 2128 C.F.R. 36.309(b)(3) ..................................... passim28 C.F.R. 41.51-41.58 ............................................ 1929 C.F.R. Pt. 1630, App., 1630.11 .......................... 2434 C.F.R. 104.42(b)(3) (1980) .............................. 4, 2145 C.F.R. 84.44(c) (1977) ..................................... 4, 20

56 Fed. Reg. 35,544 (July 26, 1991) .................... 19, 20


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STATEMENT OF THE CASEI. Introduction

Petitioner asks this Court to grant certiorari inthis case to declare that under 42 U.S.C. 12189,administrators of professional licensing exams needprovide only reasonable accommodations to testtakers with disabilities. That is exactly the standardthe district court applied in this case, and petitionerlost nonetheless, on the basis of factual findingsupheld on appeal. That a ruling by this Court wouldhave no bearing on the outcome of this case is reasonenough to deny the petition. But there are otherreasons as well.

There is no circuit conflict. Petitionersobjections to the legal rule applied by the NinthCircuit adopted directly from the governingregulation have not been considered (much lessaccepted) by any other court of appeals. Nor is thereany reason to think that other courts would acceptpetitioners challenge to the Attorney Generals

interpretation of the statute. Petitioners complaintsare based in large part on a false caricature of theregulations requirements. Neither the regulationnor the Ninth Circuit has adopted a vague bestaccommodations standard, contra Pet. i, much lessthe requirement that testing entities offer individualswith disabilities their preferred accommodations,id . 30, or accommodations that the examineebelieves will lead to the best score, id . 3. Instead,the regulations require only such accommodations asare necessary to best ensure that theexaminations results accurately reflect theindividuals aptitude or achievement level rather


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than the individuals disability, 28 C.F.R. 36.309(b)(1)(i), unless doing so would impose anundue burden or fundamentally alter the nature of the exam. Pet. App. 17a. That rule is consistent withtesting standards employed elsewhere in the

Americans with Disabilities Act (ADA) and under theregulations issued to enforce the ADAs precursor,Section 504 of the Rehabilitation Act. Petitionerscontrary claim that Congress enacted a singlereasonable accommodation standard that governsall claims of discrimination under both Acts is beliedby the text of the statutes and their long-standingregulations. The petition should be denied.

II. Statutory And Regulatory Background

A. Statute

Congress enacted the ADA to establish acomprehensive national mandate for the eliminationof discrimination against individuals withdisabilities. 42 U.S.C. 12101(b)(1). Itimplemented that goal through dozens of specific

statutory requirements governing a wide range of regulated activities.

Of particular relevance to this case, twoprovisions specifically address exams. First, aprovision of Title I requires that employment tests beadministered

in the most effective manner to ensure that,when such test is administered to a jobapplicant or employee who has a disabilitythat impairs sensory, manual, or speakingskills, such test results accurately reflect theskills, aptitude, or whatever other factor of such applicant or employee that such test


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purports to measure, rather than reflectingthe impaired sensory, manual, or speakingskills of such employee or applicant (exceptwhere such skills are the factors that the testpurports to measure).

42 U.S.C. 12112(b)(7) (emphasis added). A separate provision of Title III addresses

professional licensing exams: Any person that offers examinations orcourses related to applications, licensing,

certification, or credentialing for secondary orpostsecondary education, professional, ortrade purposes shall offer such examinationsor courses in a place and manner accessible topersons with disabilities or offer alternativeaccessible arrangements for such individuals.

42 U.S.C. 12189.

B. Implementing Regulations

Congress charged the Attorney General withissuing regulations to implement Title III, includingthe licensing examination requirements of Section12189. 42 U.S.C. 12186(b). Congress furtherdirected that the ADA and its implementingregulations should not be construed to apply a lesserstandard than the standards applied under title V of the Rehabilitation Act of 1973 (29 U.S.C. 790 et seq .)or the regulations issued by Federal agenciespursuant to such title. 42 U.S.C. 12201(a).

When Congress enacted the ADA, theregulations implementing Section 504 of Title V of the Rehabilitation Act provided that college entrance


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exams (like employment tests under Title I), beadministeredso as best to ensure that, when a test isadministered to an applicant who has ahandicap that impairs sensory, manual, orspeaking skills, the test results accuratelyreflect the applicants aptitude orachievement level or whatever other factorthe test purports to measure, rather thanreflecting the applicants impaired sensory,manual, or speaking skills (except wherethose skills are the factors that the testpurports to measure).

34 C.F.R. 104.42(b)(3) (1980) (emphasis added).Likewise, Section 504 regulations required thatcourse examinations at federally funded post-secondary institutions be administered so as to

best ensure that the results of the evaluationrepresents the students achievement in thecourse, rather than reflecting the studentsimpaired sensory, manual, or speaking skills(except where such skills are the factors thatthe test purports to measure).

45 C.F.R. 84.44(c) (1977) (emphasis added).Consistent with his obligation to interpret the

ADA to provide no less protection than was affordedunder the Section 504 regulations, the AttorneyGeneral construed Title IIIs licensing examinationprovision to require that covered exams be

selected and administered so as to best

ensure that, when the examination isadministered to an individual with adisability that impairs sensory, manual, or


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speaking skills, the examination resultsaccurately reflect the individuals aptitude orachievement level.

28 C.F.R. 36.309(b)(1)(i). The regulation furtherprovided that a covered testing entity need notprovide a particular auxiliary aid if doing so wouldfundamentally alter the measurement of the skills orknowledge the examination is intended to test orwould result in an undue burden. Id . 36.309(b)(3).

III. Factual And Procedural Background

1. Respondent Stephanie Enyart suffers fromStargardts Disease, a form of macular degenerationthat causes her to experience a large blind spot inthe center of her visual field and extreme sensitivityto light. Pet. App. 3a.

In spite of the disease, Enyart has excelledacademically, first graduating from StanfordUniversity in 1999 with honors, then earning a J.D.from the University of California, Los Angeles Schoolof Law in 2009, where she was a law review editor.

After law school she obtained a prestigious publicinterest Skadden Fellowship to provide legalassistance to homeless people with disabilities.Enyart Reply Decl. 21.

Enyarts condition has worsened over time. Pet. App. 3a. As her vision has deteriorated, her methodsfor overcoming the diseases effects have evolved. Inhigh school, for instance, she used closed-circuittelevision (CCTV), a video device that magnifiesobjects, to read text and complete math homework.

Enyart Dep., Doc. 33, Ex. 55. By college, she coulduse CCTV only sparingly, mostly to refresh hermemory of short sentences. Id. Instead, by the time


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she graduated from college, Enyarts primary methodof reading consisted of using two computer programs known as JAWS and ZoomText in tandem, one of the most common reading methods among peoplesuffering from Stargardts disease. Enyart Decl. 8;Enyart Reply Decl. 2; Rainey Dep., Doc. 35, Exhibit52. The programs work by providing synchronizedaudio and visual information about text: a voice readsthe text while a blinking cursor helps the readerfocus her eyes on the portion of magnified text beingread aloud. Enyart Decl. 10. As Enyart hasexplained, this combination enables me to stayoriented throughout the reading process andminimizes eye fatigue, making it possible for me toread lengthy texts. Id.

Enyarts experiences have demonstrated therisks of completing an examination without the use of JAWS/ZoomText. When Enyart inquired aboutaccommodations for the Law School Admission Test(LSAT), the exam administrator refused herrequest to use these computer programs. To avoid

prejudicing her standing with potential law schoolsby appearing overly litigious, but against her better

judgment, Enyart agreed to take the LSAT with onlythe assistance of a human reader and extra time.Enyart Reply Decl. 6. This accommodationhindered Enyarts performance: for example, Enyartexplained that during the exams readingcomprehension section, she needed to refer back tospecific areas in the passage in order to answer aparticular question, but it was time-consumingand tiring to explain to the reader precisely whichtext from the passage I wanted to have reread.

Id. 7. Worse still, at one point during the exam,


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Enyarts reader was so exhausted from trying toread at high speed for over five hours that he fellasleep. Id. 8. Enyart nonetheless overcame theseimpediments and scored sufficiently high to gainadmission to law school.

While in law school, Enyart used JAWS andZoomText to prepare for class, study, and take all butone of her exams. Id . 14. CCTV, on the otherhand, was by then completely ineffective for academicpurposes, inducing nausea and disorientation amongother side effects. Enyart Decl. 7.

2. With her LSAT experience in mind, Enyartcontacted petitioner in 2009 to requestaccommodations for taking the Multistate BarExamination (MBE) and the MultistateProfessional Responsibility Exam (MPRE). Passingboth exams is required to practice law in California.

As relevant here, Enyart requested to use herstandard JAWS/ZoomText accommodation duringboth examinations. Petitioner denied this request,

instead offering the use of CCTV, a human reader, anaudio recording of the exams questions, or a large-print or Braille version of the exam. 1 Pet. App . 5a.

As already discussed, Enyarts past experiencesproved that CCTV and a human reader wereinadequate; an audio recording alone would be

1 Enyart also requested several minor accommodationsthat petitioner granted without objection, including use of sunglasses (to mitigate light sensitivity), a large digital clock (tokeep track of time), a yoga mat (to allow occasional stretching so

as to ensure blood flow to her eyes), regular breaks (to allow herto rest her eyes), and migraine medication. Pet App. 34a.


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insufficient because moving back and forth to reviewquestions and answer choices would be extremelydifficult and time-consuming; Enyart cannot makeeffective use of large print texts without audio input;and she is not proficient in reading Braille, seeEnyart Decl. 20. Nevertheless, petitionerrepeatedly refused to grant Enyart the JAWS/ ZoomText accommodation. Enyart consequentlycanceled her test registrations. Pet. App. 3a-5a.

Enyart subsequently made several attempts topersuade petitioner to allow her to take the examswith her required accommodations, but to no avail.She eventually became concerned about the impactthese false starts would have on her likelihood of passing the exam when she eventually took it, as wellas the impact the delay would have on her careerprospects. Though her Skadden Fellowship providedtemporary employment, Enyart worried that the gapbetween my date of law school graduation and mydate of admission to the Bar will hurt my chanceswith future employers. Enyart Reply Decl. 21.

As a result, Enyart filed this suit alleging, amongother things, violations of the ADA. She soughtdeclaratory and injunctive relief. Pet. App. 5a.

3. With the bar examinations approaching,Enyart moved for a preliminary injunction requiringpetitioner to allow her to utilize the JAWS/ZoomTextaccommodation during the February 2010 MBE andthe March 2010 MPRE. Pet. App. 5a. Applying thestandard this Court established in Winter v. Natural

Res. Def. Council , Inc. 129 S. Ct. 365, 374 (2008),District Judge Breyer granted the motion.


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First, the court considered Enyarts likelihood of success on the merits. Enyart argued that her claimswere governed by the best ensure standard of theapplicable regulation, 28 C.F.R. 36.309(b)(1)(i).Petitioner, on the other hand, argued that despite theplain language of the regulation, it was required onlyto offer petitioner a reasonable accommodation.Pet. App. 35a-38a.

The district court decline[d] at this point todetermine whether or not Plaintiff is correct that adifferent standard applies in this case, because itconcluded that Enyart was entitled to her requestedaccommodations even under Defendants morestringent standard. Pet. App. 31a. Based on theevidence before it, the court found that

the accommodations offered by NCBE wouldeither result in extreme discomfort andnausea, or would not permit Enyart tosufficiently comprehend and retain thelanguage used on the [test]. This wouldresult in Enyarts disability severely limitingher performance on the exam, which isclearly forbidden both by the statute and thecorresponding regulation.

Pet. App. 40a. Although the regulation permittedpetitioner to show that Enyarts proposedaccommodation would create an undue burden (bycosting too much) or would fundamentally alter thenature of its testing (by creating an unwarrantedsecurity risk or invalidating the test results), 28C.F.R. 36.309(b)(3), petitioner declined to assert

any such defense. Pet. App. 42a.


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Second, the district court held that Enyart waslikely to be irreparably harmed unless awardedimmediate relief. Pet. App. 42a. [I]n the absence of a preliminary injunction, the court found, the timeshe spent in preparation will have been wasted, shewill suffer a serious career setback, [and] will face theprospect of preparing once again at a separate time.

Id. 43a (internal quotation marks and citationomitted).

Finally, the court found that both the balance of the equities and the public interest favored awardingpreliminary relief. Pet. App. 44a.

Accordingly, the court entered a preliminaryinjunction. At the same time, the court requiredEnyart to post a $5,000 injunction bond tocompensate petitioner for any injury in the event shefailed to prevail on the merits at final judgment. Pet.

App . 45a. Petitioner immediately appealed thepreliminary injunction. Id. 8a.

4. While the appeal was pending, Enyart took

the February 2010 MBE and the March 2010 MPRE. Although petitioner provided her a computer to usefor the exam, the security settings petitioner placedon it prevented her from adjusting the font to ausable type and size, resulting in eye strain andprecluding her from complet[ing] all the questionswithin the allotted time. Pet. App. 49a-50a. As aresult, Enyart like the majority of first-time


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California bar examinees2

did not pass the examson her first attempt.The district court then entered a second

preliminary injunction to allow Enyart to retake theexams in July and August 2010. Pet. App. 58a. Onceagain, Enyart posted a $5,000 bond, and once again,petitioner appealed. Id . 60a.

5. The Ninth Circuit consolidated both appealsand affirmed.

After concluding that the case had not becomemoot on appeal, 3 the Ninth Circuit held that thedistrict court did not abuse its discretion in holdingthat Enyart demonstrated a likelihood of success onthe merits. Pet. App. 23a. The Ninth Circuitrejected petitioners request to invalidate thegoverning regulation on the ground that it imposesan obligation beyond the statutory mandate. Id . at16a. Instead, applying the standard of ChevronU.S.A., Inc. v. Natural Resources Defense Council,

Inc. , 467 U.S. 837 (1984), the court determined that

2 See California Bar Association General Statistics Report,Feb. 2010, available at http://admissions.calbar.ca.gov/ LinkClick.aspx?fileticket=rPhUshzu4Q%3d&tabid=2269 (thepassage rate of the California bar exam during the winter 2010examination was 49.7 percent for first-time takers).

3 The court held that even though the injunctions onlyrelated to the March and August 2010 MPRE exams and theFebruary and July 2010 California Bar Exams, which havesince come and gone, NCBEs appeals are not moot because thesituation is capable of repetition, yet evading review. Pet. App.

10a.


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Attorney Generals regulatory construction of thestatute was permissible. Id. 16a-17a. The courtnoted that although Congress adopted a reasonableaccommodation standard elsewhere in the statute, itwas [n]otabl[e] that Congress did not incorporatethat standard into Section 12189 of the ADA. Id. at17a (emphasis in original). Section 12189srequirement that licensing exams be accessible, thecourt held, is reasonably construed to require thattesting entities provide disabled people with anequal opportunity to demonstrate their knowledge orabilities to the same degree as nondisabled peopletaking the exam in other words, the entities mustadminister the exam so as to best ensure that examresults accurately reflect aptitude rather thandisability. Id.

The Ninth Circuit then held that Judge Breyersfinding that only ZoomText and JAWS make the textaccessible to Enyart, was supported by theevidence. Pet. 23a. The Ninth Circuit thus upheldthe trial courts factual finding that the combination

of ZoomText and JAWS is the only way [Enyart] canfully comprehend the material she reads. Id . 17a.The evidence showed that Enyart would suffer eyefatigue, disorientation, and nausea if she used aCCTV, id ., and a reader or audio recording would beinadequate, given that auditory input alone isinsufficient to allow Enyart to effectively comprehendand retain the language used on the exam, id. 17a-18a.

In light of those findings, the Ninth Circuit

concluded, the district court did not abuse itsdiscretion in finding Enyart was likely to prevail. Id .23a.


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Next, the Ninth Circuit upheld the districtcourts determination that Enyart likely would sufferirreparable harm in the form of the loss of opportunity to pursue her chosen profession in theabsence of an injunction. Pet. App. 23a. The courtrejected petitioners claim that Enyart would sufferno real injury because she could engage in limitedactivities under the supervision of an attorney as acertified law student while waiting for a trial. Pet.

App. 25a. Because her Skadden Fellowship was of limited duration, [a] delay, even if only a fewmonths, pending trial represents precious, productivetime irretrievably lost to Enyart. Id .

The court similarly upheld the district courtsfindings that the balance of the equities and thepublic interest favored Enyart. Pet. App. 25a-27a.

6. While the appeals were pending in the NinthCircuit, Enyart received the results of her 2010exams. In spite of the distraction of the ongoinglitigation not to mention the stress of not knowinguntil the last moment what accommodations shewould be permitted to use on the exams Enyartpassed the MPRE. Id. 9a. She did not, however, passthe bar exam. Id .

Meanwhile, the underlying case has movedtoward trial on the merits, in order to resolvepetitioners entitlement to the injunction bonds. Pet.

App. 26a. Enyart filed a motion for summary judgment on June 10, 2011. D.Ct. Docket Entry 141.If summary judgment is denied, the trial is scheduledto begin on January 9, 2012. D.Ct. Docket Entry 138,at 2.


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REASONS FOR DENYING THE WRITThere is no reason for this Court to review the

Ninth Circuits interlocutory decision affirming thepreliminary injunctions in this case. Any differencebetween the best ensure standard adopted byregulations and the reasonable accommodationstandard petitioner prefers made no difference to theoutcome of this case petitioner lost in the districtcourt under the very standard it advances here, onthe basis of factual findings the Ninth Circuit upheld

on appeal. Nor has any court accepted petitionersassertion that the Section 12189 regulation is invalid.To the contrary, the regulation reasonably requiresonly that test administrators ensure that theirlicensing examinations measure what they purport tomeasure, and not a persons disability, whileproviding a defense against having to makeadjustments that would fundamentally alter thenature of the test or cause an undue burden.Petitioners assertion that this requirement is out of step with other statutory provisions of the ADA,relating to other kinds of tests and activities, is notonly incorrect but, because those provisions aredistinct, provides no basis to grant review in this casein any event.

Nor is there any reason for this Court to reviewthe court of appeals application of establishedpreliminary injunction standards to the specific factsof this case.

I. The Ninth Circuits Decision Is Correct.

While petitioner focuses its criticism on theNinth Circuit, its real complaint is with theregulation issued by the Attorney General, whose


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standard the court of appeals adopted verbatim. Pet. App. 14a. To the extent there is a meaningfuldifference between a best ensure and reasonableaccommodations standard, the Ninth Circuit couldaccept petitioners interpretation only by invalidatingthe regulation. No court has done so, and for goodreason. The regulation reasonably implements along-established conception of non-discrimination inthe testing context. Petitioner is able to argueotherwise only by mischaracterizing both thestandard the Attorney General adopted and the lawin other contexts.

A. The Regulation Is A ReasonableConstruction Of Section 12189.

Because Congress delegated to the AttorneyGeneral responsibility for promulgating regulationsinterpreting Section 12189, the Ninth Circuit wascompelled to accept the regulatory standard so longas it is based on a reasonable construction of thestatutory term[s]. Chevron v. Natural Res. Def.

Council , 467 U.S. 837, 840 (1984). It is.1. Petitioner argues that the Attorney Generalwas required to adopt the reasonableaccommodation standard that, it says, prevails inevery context of federal disability rights law. Pet. 13.That argument fails at its premise. While the Actsreasonable accommodation requirement is perhapsthe statutes best known mandate, it is but one of many specific requirements in a detailed statutetailored to rooting out discrimination in a broadrange of contexts.

For example, the reasonable accommodationprovision of Title I is one of seven subdivisions of the


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statutes definition of prohibited employmentdiscrimination: As used in subsection (a) of this section, theterm discriminate against a qualifiedindividual on the basis of disabilityincludes

(1) limiting, segregating, or classifying a job applicant or employee in a waythat adversely affects theopportunities or status of such

applicant or employee because of thedisability of such applicant oremployee;

(2) participating in a contractual orother arrangement or relationshipthat has the effect of subjecting acovered entitys qualified applicant oremployee with a disability to thediscrimination prohibited by thissubchapter (such relationshipincludes a relationship with anemployment or referral agency, laborunion, an organization providingfringe benefits to an employee of thecovered entity, or an organizationproviding training andapprenticeship programs);

(3) utilizing standards, criteria, ormethods of administration--(A) that have the effect of discrim-

ination on the basis of disability;or


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(B) that perpetuate the discrim-ination of others who are subjectto common administrativecontrol;

(4) excluding or otherwise denying equal jobs or benefits to a qualifiedindividual because of the knowndisability of an individual with whomthe qualified individual is known tohave a relationship or association;

(5) (A) not making reasonableaccommodations to the knownphysical or mental limitations of an otherwise qualified individualwith a disability who is anapplicant or employee, unlesssuch covered entity candemonstrate that theaccommodation would impose anundue hardship on the operationof the business of such coveredentity; or

(B) denying employment opport-unities to a job applicant oremployee who is an otherwisequalified individual with adisability, if such denial is basedon the need of such covered entityto make reasonable accomm-odation to the physical or mentalimpairments of the employee or

applicant;(6) using qualification standards,

employment tests or other selection


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criteria that screen out or tend toscreen out an individual with adisability or a class of individualswith disabilities unless the standard,test or other selection criteria, asused by the covered entity, is shownto be job-related for the position inquestion and is consistent withbusiness necessity; and

(7) failing to select and administer testsconcerning employment in the most

effective manner to ensure that, whensuch test is administered to a jobapplicant or employee who has adisability that impairs sensory,manual, or speaking skills, such testresults accurately reflect the skills,aptitude, or whatever other factor of such applicant or employee that suchtest purports to measure, rather thanreflecting the impaired sensory,

manual, or speaking skills of such employee or applicant (except wheresuch skills are the factors that the test

purports to measure).

42 U.S.C. 12112(b) (emphasis added). Notably, thefinal definition of discrimination, emphasized above,addresses employment testing in terms that closelyparallel the best ensures standard petitionerchallenges here.

Title II makes no mention of reasonableaccommodations at all, adopting instead the broadantidiscrimination mandate of Section 504 of the


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Rehabilitation Act. Compare 42 U.S.C. 12132 (TitleII) with 29 U.S.C. 794 (Section 504). At the timethe ADA was enacted, Section 504 had been givenmore precise definition by various regulations. But,again, the reasonable accommodations standardupon which petitioner places so much weight wassimply one of many regulatory requirements. See

generally 28 C.F.R. 41.51-41.58.Finally, Title III, like Title I, defines the scope of

regulated parties duties in a number of waysdepending on the setting. See 42 U.S.C. 12182(b).Only one of Title IIIs many provisions requiresreasonable modifications. Id . 12182(b)(2)(A)(ii).

2. Accordingly, in judging the validity of thelicensing examination regulation, the Ninth Circuitproperly looked to the applicable statutory textrather than to some generic characterization of thegeneral gist of the ADA.

The Attorney General recognized that for alicensing exam to be accessible to persons with

disabilities, 42 U.S.C. 12189 (emphasis added), itmust provide the individual with a disability an equal opportunity to demonstrate his or herknowledge or ability, 56 Fed. Reg. 35,544 (July 26,1991) (emphasis added), if that opportunity can beprovided without imposing an undue burden orfundamentally altering the exam. The AttorneyGeneral rightly determined that an exam is notaccessible to individuals with disabilities if it isadministered in a way that prevents those withsensory impairments from demonstrating theknowledge or competencies the test purports tomeasure. Refusing to administer a test in a way thataccurately reports a persons abilities is no different


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from offering the test in a building the person cannotenter. In either case, the person with a disability isdenied access to the central benefit of the test theability to use its results to demonstrate her truequalifications.

The Attorney Generals interpretation isparticularly reasonable in the context of high-stakeslicensing and credentialing exams given theimportance of ensuring that the key gateways toeducation and employment are open to individualswith disabilities. 56 Fed. Reg. 35,544, 35,572.Indeed, such tests are often a critical step inprofessional pursuits for which one spends manyyears and significant resources preparing.

The regulation is also consistent with establishedconceptions of accessibility and equal treatment inthe testing context, understandings that formed thebackground against which Section 12189 wasadopted. As noted above, when directly addressingdisability discrimination in the testing context inTitle I, Congress did not apply a general reasonableaccommodation requirement, but rather usedlanguage remarkably similar to Title IIIs licensingexam regulation, requiring that tests be administeredin the most effective manner to ensure that the testmeasures an individuals ability and not herdisability. 42 U.S.C. 12112(b)(7) (emphasis added).

Similarly, at the time the ADA was enacted,regulations in two closely related testing contextsalready imposed the best ensure standardpetitioner challenges in this case. See 45 C.F.R. 84.44(c) (1977) (Health and Human Servicesregulation regarding postsecondary courseexaminations at federally funded schools); 34 C.F.R.


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104.42(b)(3) (1980) (Department of Educationregulation regarding admission testing for federallyfunded postsecondary schools).

The Attorney General did not act unreasonablyin applying the same standard to licensingexaminations under Title III. Indeed, the AttorneyGeneral had no other choice, given Congresssdirective that the ADA not be construed to apply alesser standard than the standards applied under[Section 504] of the Rehabilitation Act of 1973 or theregulations issued by Federal agencies pursuant tosuch title. 42 U.S.C. 12201(a); see also Bragdon v.

Abbott , 524 U.S. 624, 632 (1998) (explaining that the ADA must be interpreted to grant at least as muchprotection as provided by the regulationsimplementing the Rehabilitation Act).

3. Petitioners objections to the AttorneyGenerals interpretation are premised in large parton a mischaracterization of its requirements.Contrary to petitioners assertion, the regulation doesnot require a testing agency to offer the format thatwill best ensure [an examinees] success, ormaximize her score. Pet. 30. Instead, as theregulation explicitly states, it merely requires thatthe testing entity to administer the exam in amanner that best ensures that the examinationresults accurately reflect the individuals aptitude orachievement level , 28 C.F.R. 36.309(b)(1)(i)(emphasis added), consistent with the undue burdenand fundamental alteration defenses, id . 36.309(b)(3). Thus, the regulation does not entitle

individuals with disabilities to their preferredaccommodation, Pet. 30, or whateveraccommodations they or their retained experts say is


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best for them, id . 31. If an individual with adisability requests more than is required to allow anaccurate assessment of her abilities, the provider isfree to reject the request. 4

Nor does the best ensure standard requiretesting entities to provide accommodations thatwould significantly undermine the integrity of thetesting results, impose unwarranted security risks, orcost too much. The regulations specifically providethat a test provider need not provide auxiliary aidswhen doing so would fundamentally altermeasurement of the skills or knowledge theexamination is intended to test or would result in anundue burden. 28 C.F.R. 36.309(b)(3). Although itcomplains to this Court at length about the expenseand burden of Enyarts required accommodations,petitioner made no attempt to raise an undue burdenor fundamental alteration defense below. See Pet.

App . 26a n.6, 31a.

B. Petitioner Is Wrong To The Extent ItClaims That The Ninth CircuitMisapplied The Regulation.

Petitioner also appears to argue that if theregulation is valid, the Ninth Circuit misapplied it byconstruing it to require something more thanreasonable accommodations. See Pet. 26-29. This

4 To be sure, in some cases what measures are requiredunder the best ensure standard may be subject to dispute orlitigation. See Pet. 32. But the same is true of the reasonableaccommodation standard petitioner proposes, or any other

standard that treats people as individuals with differentconditions and accommodation needs.


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is an odd argument. Petitioner has no ground tocomplain unless best ensure means somethingmaterially different from reasonableaccommodation. Yet if that is true, it is indisputablethat best ensure is what the regulation requires.What petitioner advocates is disregard for, not aninterpretation of, the regulation.

Petitioner nonetheless insists that the regulatorylanguage does not mean what it says, pointing tosettlement agreements between the Department of Justice and testing agencies. Pet. 28. But languagein a settlement agreement necessarily embodies acompromise, United States v. Armour & Co. , 402U.S. 673, 681 (1971), and therefore hardly constitutesan agencys authoritative interpretation of themeaning of its regulations. In fact, the Departmentof Justice has made clear that its settlementagreements in no way renounce the plain meaning of its regulation implementing Section 12189. In asimilar case, the Department has called petitionersreliance on its settlements misplaced and urged the

court not to rely on cherry-picked statements from afew compromises with testing agencies. See App.25a-26a (Statement Of Interest Of The United StatesOf America In Opposition To The Motion To Dismissat 18-19, Elder v. Natl. Conference of Bar Examrs ,No. 10-CV-01418 (N.D. Md. July 9, 2010)). 5 In any

5 Petitioner likewise mischaracterizes the EEOCsinterpretation of its testing regulation under Title I. Ratherthan asserting that Title Is specific testing provision issubsumed by the more general reasonable accommodationrequirement, Pet. 26-27, the interpretive guidance petitioner


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event, deference to an agencys interpretation of itsregulations is warranted only when the language of the regulation is ambiguous. Christensen v. HarrisCounty , 529 U.S. 576, 588 (2000). And here theregulation unambiguously adopts the best ensurestandard the Ninth Circuit applied. 6

II. There Is No Conflict Over The Validity Of The Attorney Generals Testing Regulation.

The petition further does not warrant reviewbecause the Ninth Circuit is the only court to haveconsidered the validity of the regulations bestensure standard.

A. Only The Ninth Circuit Has AddressedThe Validity Of The Regulation.

Petitioner claims that every court to haveapplied [Section 12189] other than the NinthCircuit has understood it simply to incorporate thewell-settled reasonable accommodation standard.Pet. 18. But none of the four cases petitioneridentifies as arising under Section 12189 two circuitcourt and two state supreme court cases consideredthe question presented by the petition, much less

cites simply acknowledges that both requirements apply toemployment testing. 29 C.F.R. Pt. 1630, App., 1630.11.

6 If the Attorney General decided to abandon thatinterpretation of the ADA, he would be required to make thatchange through notice and comment procedures, which he hasnot done. See Shalala v. Guernsey Meml Hosp. , 514 U.S. 87,100 (1995) (noting APA rulemaking would be required if an

agency adopted a new position inconsistent with its existingregulations).


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Nor does anything in the Florida SupremeCourts decision in Florida Board of Examiners re S.G. , 707 So. 2d 323 (Fla. 1998), cast any doubt onthe validity of the regulation. To the contrary,although the decision referred in passing to theBoards obligation to reasonably accommodate testtakers with disabilities, id. at 324, it explained interms that closely mirror the language of theregulation that Section 12189 requires testingagencies to administer the bar exam in a mannerthat ensure[s] that the exam reflects the substantivelegal knowledge, reasoning ability, and analyticalskills it is intended to test rather than [ones]disability. Id. at 325. In the end, the court was notcalled upon to decide the appropriate standard of accommodation, finding that the plaintiffs requestfor a modification in the method for scoring her examis, by its very nature, a modification whichfundamentally alters the measurement of the skillsor knowledge the examination is intended to test.

Id. at 325 (quoting 28 C.F.R. 36.309(b)).

Finally, in Petition of Rubenstein , 637 A.2d 1131(Del. 1994), the Delaware Supreme Court ordered theBoard of Bar Examiners to admit plaintiff to theDelaware Bar despite her inability to pass the barexam. Id . at 1140. The court accordingly did notconsider any request for accommodations during theexam, and did not consider the regulations validity,or even mention it. The reasonable accommodationlanguage petitioner cites is a quotation from a lawreview article, which the court merely cited in the


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course of a general description the ADA. See id. at1138. 7

B. Petitioners Citation To Cases InvolvingOther Provisions And Statutes Does NotEstablish A Circuit Conflict WarrantingThis Courts Review.

Petitioner also attempts to cobble together acircuit conflict by suggesting that the Ninth Circuitapplied a different standard to licensingexaminations covered by Section 12189 than othercourts have applied to other activities governed bydifferent provisions of the ADA and other statutes.Pet. 13. The argument fails for three reasons.

First, petitioner is simply wrong to the extent itsuggests that under the Ninth Circuits holding,identical licensing exams are subject to different

7 The petition also cites two other cases involving licensingexaminations without claiming that either directly addressesthe question presented by the petition, and neither does. In

Powell v. National Board of Medical Examiners , 364 F.3d 79 (2dCir. 2004), the Second Circuit mentioned neither Section 12189nor its implementing regulation, but merely concluded thateven if the plaintiff is disabled, she has produced no evidence toshow she is otherwise qualified to continue in medical school.

Id . at 89. Likewise, the plaintiff in In re Reasonable Testing Accommodations of Lafleur , 722 N.W.2d 559 (S.D. 2006), did notcite to Section 12189 or its implementing regulation, providingthat court no reason to decide whether the regulatory standardshould apply to licensing examination claims. Id . at 565.

Petitioner also cites a number of district court cases. See , e.g. , Pet. 19 n.4. But like the circuit court cases discussed above,

neither the holdings of these cases nor their dicta directlyaddress the validity of the Section 12189 regulation.


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standards depending on whether the entityadministering the exam receives federal funding or isa governmental entity. To the contrary, by its terms,Section 12189 applies to [a]ny person that offerssuch examinations, 12189(a) (emphasis added),whether the person accepts federal funding or not.Moreover, because person is defined generally inthe ADA to cover public entities, Section 12189 hasunanimously been held to apply to public entitiesand private entities alike. Bartlett v. N.Y. State

Board , 970 F. Supp. 1094, 1128-29 (S.D.N.Y. 1997)(Sotomayor, J.) (citing 42 U.S.C. 12111(7) andcollecting cases), affd in part and vacated in part onother grounds , 156 F.3d 321 (2d Cir. 1998).

Second, petitioners assertion that courts haveapplied the reasonable accommodation standard toother kinds of tests not governed by Section 12189( e.g. , employment or classroom tests), see Pet. 14-18,would provide no basis for review, even if true. Acircuit conflict over whether the Attorney Generalhas reasonably interpreted this particular statutory

provision does not arise simply because courts adoptdifferent standards to implement other statutory andregulatory language.

Third, and in any event, petitioner has notsubstantiated its claim of a considered conflict overthe appropriate standard in disparate testingcontexts. None of the cases petitioner cites evaluatedthe proper standard for judging testingaccommodations, either because the parties did notdispute the governing standard or because the case

was resolved on other grounds. For example, theappeal in Panazides v. Virginia Board of Education ,13 F.3d 823 (4th Cir. 1994), raised the sole question


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of the availability of jury trial under 504 of theRehabilitation Act, id . at 824; the decision does notdiscuss the proper testing accommodation standardunder Section 504 or any implementing regulation.Likewise, the court in Moritsky v. Broward County ,80 F.3d 445 (11th Cir. 1996), explained that theissue the Court must address is narrow: Willknowledge that an applicant for employment has adisability be imputed to a prospective employer fromknowledge that the applicant has taken specialeducation courses and cannot read or write. Id . at447. The court held nothing about the proper testingstandard under Title I. Fink v. New York City

Department of Personnel , 53 F.3d 565 (2d Cir. 1995),involved a complaint addressed not to theaccommodations provided by the defendants, but tothe manner in which two reader-assistants carriedout their duties. Id. at 567. The court noted thatunder Section 504, employers must make reasonableaccommodations for an employees disability, id. , butnever directly confronted the proper standard to be

applied in the testing context. Finally, McGuinnessv. University of New Mexico Medical School , 170 F.3d974 (10th Cir. 1998), did not involve any request fortesting accommodations. See id . at 977 (medicalstudent informed his professors he needed no test-taking accommodations, but instead requested thathe be permitted to advance without receivingsatisfactory grades in his courses).

III. This Case Is A Poor Vehicle For Review.

Even if the petition presented a questionwarranting this Courts review, this case presents anextraordinarily poor vehicle for deciding it.


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A. Deciding The First Question PresentedWould Not Affect The Outcome Of ThisCase.

The choice between the reasonableaccommodation and best ensures standard ispoorly posed in this case because the answer makesno difference to the outcome.

Judge Breyer determined that Enyart is entitledto her requested accommodations even under thereasonable accommodation standard proposed by

petitioner. Pet. App. 31a. The district court pointedto undisputed evidence that Enyart can fullycomprehend lengthy reading material only by usingthe ZoomText software in conjunction with the JAWSprogram because the combination allows her tosynchronize seeing and hearing the text while alsoallowing her to move quickly back and forth throughthe questions and answers during the course of theexam. Pet. App. 39a. Petitioners proposedalternative accommodations of a live reader or aclosed circuit television would either result inextreme discomfort and nausea, or would not permitEnyart to sufficiently comprehend and retain thelanguage used on the [test]. Pet. App. 40a.Petitioner could point to no authority suggestingaccommodations that cause such extreme discomfortcould be reasonable under the ADA. Id . The NinthCircuit upheld the factual basis for the district courtsconclusions on appeal. Pet. App. 22-23a.

Even if petitioner had grounds for disputingthose factual findings, or application of thereasonable accommodations standard to thosefindings, that case-specific objection would notwarrant this Courts review. See Easley v. Cromartie ,


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532 U.S. 234, 242 (2001) (Where an intermediatecourt reviews, and affirms, a trial courts factualfindings, this Court will not lightly overturn theconcurrent findings of the two lower courts.)(quoting Neil v. Biggers , 409 U.S. 188, 193 n.3(1972)).

B. The Procedural Posture Of The CaseRenders It A Poor Vehicle For Review.

The Court routinely denies petitions forcertiorari that, as in this case, challenge interlocutorydeterminations. See, e.g., Va. Mil. Inst. v. United

States , 508 U.S. 946 (1993) (Scalia, J., respectingdenial of certiorari); Hamilton-Brown Shoe Co. v.Wolf Bros. & Co. , 240 U.S. 251, 258 (1916) (describingthe interlocutory nature of a decision as a fact thatof itself alone furnishe[s] sufficient ground for thedenial of certiorari). Petitioner identifies no reasonto depart from that practice here.

Though petitioner asks this Court to decide the validity of the licensing examination regulation, the

only question properly before the Court at this stageis whether the district court abused its discretion indetermining that petitioner was likely to succeed onthe merits. See Brown v. Chote , 411 U.S. 452, 457(1973) (In reviewing such interlocutory relief, thisCourt may only consider whether issuance of theinjunction constituted an abuse of discretion.).

Accordingly, the Court could affirm the districtcourts decision without ever reaching the questionpresented.

Furthermore, the factual record for a preliminaryinjunction is necessarily less complete than in a trialon the merits because the purpose of a preliminary


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injunction is merely to preserve the relativepositions of the parties until a trial on the merits canbe held. Univ. of Texas v. Camenisch , 451 U.S. 390,395 (1981). Indeed, in this case, the district courtrecognized that at the upcoming trial on the merits,both sides would undoubtedly present new evidence.For example, the district court noted that petitionerhad declined to make an undue burden argument atthe preliminary injunction stage, but [p]resumablywould do so at trial. Pet. App. 31a. Accordingly,further factual development may materially changethe factual context of the case and may even renderirrelevant the dispute petitioner presents to thisCourt.

IV. The Decision Below Correctly Applied ThisCourts Precedent On Irreparable Harm

And Did Not Create A Circuit Split.

Petitioner further argues that the Ninth Circuitsaffirmance of the district courts finding of irreparable harm warrants review because the court

of appeals decision conflicts with this Courts andother circuits precedents. Pet. 33. Neitherassertion is true.

Petitioner first claims the Ninth Circuit defiedthis Courts precedent in Winter v. Natural Resources

Defense Council , 129 S. Ct. 365 (2008), byrepackag[ing] the old Ninth Circuit standard thisCourt overruled in Winter . Pet. 33. In Winter , thisCourt held that a party seeking a preliminaryinjunction must show a likelihood, not just apossibility, of irreparable harm. 129 S. Ct. at 375. Inthis case, the district court expressly acknowledgedthat Winter requires a plaintiff to demonstrate harm


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is likely, not just possible, absent an injunction.Pet. App. 44a; see also id. 53a (noting Winter distinguishes between harm that is merely possibleor truly imminent). The court then applied theWinter standard to the facts of this case, id. at 43a,53a, concluding that without an injunction, Enyartwould suffer a serious career setback that could notbe fully remedied through a retrospective damagesaward, id . 43a. The Ninth Circuit likewiserecognized that Winter required Enyart todemonstrate that irreparable injury was likely andthat [m]ere possibility of harm is not enough. Pet.

App. 23a. The court then faithfully applied thatstandard to this case, affirming because absent aninjunction, Enyart would likely lose the chance topursue her chosen profession, causing irreparableharm. Id. 24a (emphasis added).

Petitioner nonetheless claims the Ninth Circuitcreated a circuit conflict by crafting a categoricalrule that any delay in the opportunity to pursue aprofession, no matter how short, is necessarily

irreparable harm warranting an injunction. Pet. 35-36. But the Ninth Circuit created no such generalrule. Instead, it engaged in a fact-specific analysisand based its ruling on the particular circumstancesof this case. See Pet. App. 23a-25a.

Nor have the Second or Seventh Circuits createdany contrary categorical rule against awardingpreliminary relief in testing accommodation cases.To the contrary, like the Ninth Circuits decision inthis case, the decisions petitioner relies upon simply

applied settled law to the specific facts of particularcases, facts that are materially distinguishable fromthose in this case. In Doe v. New York University ,


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666 F.2d 761 (2d Cir. 1981), the Second Circuit heldthat a plaintiff who left medical school aftercompleting only one semester, then applied for aninjunction when she sought to be readmitted fiveyears later, had not demonstrated that she wouldsuffer irreparable harm absent an injunction. Id. at771-74. In so holding, the Second Circuit focused onthe case-specific facts that after leaving medicalschool, the plaintiff had obtained a masters degreefrom Harvard and was gainfully employed whenshe applied for the injunction. Id. at 770, 773.

Similarly, the Seventh Circuit held in Martin v. Helstad , 699 F.2d 387 (7th Cir. 1983), that a plaintiff who sought admission to law school would not sufferirreparable harm absent a preliminary injunctionwhen he was enrolled in law school elsewhere andwould suffer no delay in his legal education. Id. at392 n.7. The Seventh Circuit held that thisparticular plaintiff had shown insufficient factsmilitating in favor of relief. Id. at 392.

By contrast, in this case, the Ninth Circuitcorrectly recognized that Enyart faced a moreimmediate and irreparable harm than the plaintiffsin Doe and Martin . Unlike the plaintiff in Doe , whowould need several years to earn her medical degreeeven with an injunction, or the plaintiff in Martin ,who faced no delay in becoming an attorney becausehe was already attending law school, Enyart hadalready earned her law degree and was suffering animmediate and ongoing harm in being preventedfrom putting her degree to use. And while the Doe

plaintiff had invested only a semesters worth of timeand tuition into medical school five years earlier,Enyart has already put three years of effort and


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money into earning her law degree, which is all butuseless until she becomes a licensed attorney. 8 Thus, nothing about Doe or Martin suggests

these cases would compel a different result inEnyarts case had she brought her claim in theSecond or Seventh Circuits. Cf. DAmico v. N.Y. State

Bd. of Law Examrs , 813 F. Supp. 217 (W.D.N.Y.1993) (holding that plaintiff met irreparable harmrequirement when bar examiners refused to providerequired accommodations).

8 In any case, discrimination in violation of the ADAconstitutes irreparable harm per se . See Pet. App. 23a (findingit unnecessary to reach this argument). Cf. Gresham v.Windrush Partners, Ltd. , 730 F.2d 1417, 1424 (11th Cir.) (due tosubtle, pervasive, and essentially irremediable nature of racialdiscrimination, irreparable harm presumed when plaintiff

shows likelihood of success on housing discrimination claim),cert. denied , 105 S. Ct. 249 (1984).


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[1]IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLANDNORTHERN DIVISION

TIMOTHY R. ELDER, et al. ,

Plaintiff, v.

NATIONAL CONFERENCE OF BAR EXAMINERS,

Defendant.

Civil Action No.: 10-cv-01418 (JFM)

STATEMENT OF INTEREST OFTHE UNITED STATES OF AMERICA IN

OPPOSITION TO THE MOTION TO DISMISS

Introduction

The United States files this Statement of Interest, pursuant to 28 U.S.C. 517, because thislitigation implicates the proper interpretation andapplication of title III of the Americans withDisabilities Act, 42 U.S.C. 12101 et seq. ; 28 C.F.R,pt. 36 (ADA). Under the ADA, professional licensingexaminations must be administered in a manner that

is accessible to persons with disabilities. 42 U.S.C 12189; 28 C.F.R. 36.309. Defendant, NationalConference of Bar Examiners (NCBE), has moved


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Section 309 of the ADA provides:

Any person that offers examinations or coursesrelated to applications, licensing, certification,or credentialing for secondary or post-secondary education, professional, or tradepurposes shall offer such examinations orcourses in a place and manner accessible topersons with disabilities or offer alternativeaccessible arrangements for such individuals.

42 U.S.C. 12189.The legislative history found in the Report for the

House Committee on the Judiciary explains:

The purpose of this amendment is to fill a gapwhich is created when licensing, certification,and other testing authorities are not coveredby Section 504 of the Rehabilitation Act orTitle II of the ADA. Any such authority that iscovered by Section 504, because of the receiptof federal money, or by Title II, because it is afunction of a state or local government, mustmake all of its programs accessible to personswith disabilities, which includes physicalaccess as well as accommodations in the waythe test is administered, e.g. extended time orassistance of a reader . . . this provision wasadopted in order to assure that persons withdisabilities are not foreclosed from educational,professional, or trade opportunities because anexamination or course is conducted in an

inaccessible site or without an accommodation.H.R. Rep. No. 101-485 (III), at 68-69 (1990).


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Following notice and comment rulemaking for thetitle III regulations, the Department of Justice issued28 C.F.R. 36.309, consistent with Section 309 of thestatute, which applies to any private entity thatoffers the specified types of examinations or courses.Section 36.309(b) [4] of the regulation provides:

(1) Any private entity offering an examinationcovered by this section must assure that

(i) The examination is selected andadministered so as to best ensure that, whenthe examination is administered to anindividual with a disability that impairssensory, manual, or speaking skills, theexamination results accurately reflect theindividuals aptitude or achievement level orwhatever other factor the examinationpurports to measure, rather than reflecting theindividuals impaired sensory, manual, orspeaking skills (except where those skills arethe factors that the examination purports to

measure) . . .(2) Required modifications to an examinationmay include changes in the length of timepermitted for completion of the examinationand adaptation of the manner in which theexamination is given.

(3) A private entity offering an examinationcovered by this section shall provideappropriate auxiliary aids for persons withimpaired sensory, manual, or speaking skills,

unless that private entity can demonstratethat offering a particular auxiliary aid wouldfundamentally alter the measurement of the


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skills or knowledge the examination isintended to test or would result in an undueburden.

28 C.F.R. 36.309(b). 9

Fact Background

All three Plaintiffs are law school graduates with visual disabilities who seek to take the Maryland BarExamination. (Compl. 2.) All three individualsrequire the use of adaptive software as anappropriate auxiliary aid as a result of visionimpairments: Zoomtext Screen Magnificationsoftware in the case of Mr. Witwer; Jaws screen-reading software in the case of Mr. Elder; and bothZoomtext and Jaws in the case of Ms. Blackfield.(Compl. 39, 18, 29.) [5] Without the use of thisadaptive software, they are unable to read in amanner comparable to other individuals. (Comp. 16, 27, 38.)

The Maryland Bar Examination consists of threeparts, including the Maryland State Law portion, theMultistate Performance Test, and the Multistate BarExamination (MBE). The Maryland Board of LawExaminers (Board) has agreed to provide therequested testing accommodations to the plaintiffsand has purchased the necessary hardware and

9 The requirement that the examination must bestensure fair examination of the test-takers knowledge wasadopted from the Rehabilitation Acts Section 504 requirements

for admissions examinations in post-secondary institutions. 28C.F.R. pt. 36, app. B at 715 (2009).


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software to permit the plaintiffs to use the adaptivesoftware. (Compl. 3, 19, 20, 30, 31, 39, 40, 41.)

NCBE develops and offers the MBE to the various State Bar licensing boards for use in eachstates bar examinations. (Ex. B. to Def. Mem. InSupp. Mot. To Dismiss, Moeser Decl. 3.) The MBEconsists of two hundred multiple choice questionsthat are identical in all jurisdictions. Id. NCBE willnot release the MBE for use by a state except under

very specific conditions. Id. Even if a state chooses to

offer a broad variety of auxiliary aids to personstaking the test, NCBE refuses to provide the MBE ina format electronically readable by many broadly-available software programs that facilitate readingand comprehension by persons who are blind. (Ex. B.to Def. Mem. In Supp. Mot. To Dismiss, Moeser Decl. 12.) NCBE has a stated interest in protecting thecontents of the examination from being distributed inany fashion. Id.

Plaintiffs requested the use of adaptive software

to take the Maryland Bar Examination using theappropriate procedures set out by the Board. (Compl. 18, 29, 39.) The Board has agreed to provide theplaintiffs the Maryland Bar Examination, allowingplaintiffs to use the requested auxiliary aids andadaptive software. The Board has even taken thesteps of purchasing laptop computers and severallicenses of Zoomtext and Jaws, and has trainedpersonnel on the use of Zoomtext and Jaws so thatthey may properly provide the examination to [6] thePlaintiffs and other potential applicants. (Compl. 3, 20, 31, 41.) Defendant NCBE provides the MBE tothe Board and controls the administration of theMBE insofar as what testing accommodations and


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appropriate auxiliary aids may be given to MBEexaminees. (Compl. 12.) NCBE refuses to make theMBE available in an electronic format for use withadaptive software. (Compl. 3; Moeser Decl. 11.)

Argument

A. The Motion to Dismiss Should be DeniedBecause Plaintiffs Have Stated a ClaimSufficient to Withstand A ChallengePursuant To Fed. R Civ. P. 12(b)(6).

1. Fourth Circuit Standards For ReviewUnder Fed. R Civ. P. 12(b)(6).

In the Fourth Circuit, the standards forreviewing a motion to dismiss pursuant to Rule12(b)(6) in a civil rights case, such as this one,provide:

[T]he purpose of a Rule 12(b)(6) motion is totest the sufficiency of a complaint. Edwards v.City of Goldsboro, 178 F.3d 231, 243 (4th Cir.1999). A 12(b)(6) motion does not resolve

contests surrounding the facts [or] the meritsof a claim. Id. (quoting, Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992)). Accordingly, an appellate court may onlyaffirm the dismissal of the complaint if it isclear that no relief could be granted under anyset of facts that could be proved consistentwith the allegations. H.J. Inc. v. Nw. Bell Tel.Co., 492 U.S. 229, 249-50 (1989) ( quoting

Hishon v. King & Spalding, 467 U.S. 69, 73(1984)). Moreover, when a complaint alleges acivil rights violation, we must be especiallysolicitous of the wrongs alleged and must not


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dismiss the complaint unless it appears to acertainty that the plaintiff would not beentitled to relief under any legal theory thatcould be proved consistent with theallegations. See Edwards, 178 F.3d at 244(overturning dismissal of suspendedgovernment employees First Amendmentclaims).

Smith v. Frye , 488 F. 3d 263, 274 (4th Cir. 2007); cert.denied 552 U.S. 1039 (2007).

In assessing a motion to dismiss for failure tostate a claim under Fed. R. Civ. P. 12(b)(6), the courtmust accept the factual allegations contained in thecomplaint as true. [7] Fitzgerald v. Barnstable Sch.Comm., __ U.S. __, 129 S. Ct. 788, 792 (2009); Bell

Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007). Acourt must determine whether a complaint containssufficient factual matter, accepted as true, to state aclaim to relief that is plausible on its face. Ashcroftv. Iqbal , 129 S. Ct. 1937, 1949 (2009) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570).The factual allegations in the complaint must be

sufficient to raise a right to relief above thespeculative level, Twombly, 550 U.S. at 545, and . . .a formulaic recitation of a cause of actions elementswill not do. Factual allegations must be enough toraise a right of relief above the speculative level.Twombly , 550 U.S. at 545. If the Court concludes thatthe complaint has not nudged [his] claimsacrossthe line from conceivable to plausible, then suchclaims cannot be sustained under the pleadingrequirements. Iqbal, 129 S. Ct. at 1951 (citingTwombly ).


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2. NCBE Is A Covered Entity Within ThePlain Meaning of Section 309.

NCBE argues that the Plaintiffs fail to state aclaim because NCBE is not a covered entity withinthe meaning of Section 309. (Def.s Mem. Supp. Mot.Dismiss at 21.) However, NCBEs argument is beliedby the plain meaning of the law. In addition, thelegislative history of Section 309 of the ADA, and itsimplementing regulations make clear that Congressintended Section 309 to apply to any private entitywho offers examinations . . . related to . . . licensing. .. for. . . professional, or trade purposes. . . . 28 C.F.R. 36.309(a). There can be no dispute that NCBE is aprivate entity and a corporation, and that the MBE isan examination related to licensing for professionalpurposes a license to practice law.

Courts have consistently held that privateentities that offer exams to licensing boards or

jurisdictions such as the NCBE are covered by

Section 309. See Boggi v. Medical Review and [8] Accrediting Council , WL 2951022, at 10 (E.D. Pa.2009) (holding that an independent non-profit entitythat provided tests for health professions but did notlicense physicians is covered by Section 309); Biankv. Natl Bd. of Med. Examiners , 130 F. Supp.2d 986,988 (N.D. Ill. 2000) (holding that NBME, as aprivate entity offering examinations related tolicensing, is subject to ADA under Section 12189).

Defendant NCBE, like the National Board of

Medical Examiners (NBME) in Biank , is a non-profit organization that develops tests and


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establishes standards for admission to a profession.NCBE describes its mission as:

work[ing] with other institutions to develop,maintain, and apply reasonable and uniformstandards of education and character foreligibility for admission to the practice of law;and . . . assist[ing] bar admission authoritiesby providing standardized examinations of uniform and high quality for the testing of applicants for admission to the practice of law.

. . .National Conference of Bar Examiners, A BOUT THEN ATIONAL CONFERENCE OF B AR E XAMINERS ,

Available: http://www.ncbex.org/. (last visited Jul. 9,2010). The NCBE thus performs functions like thoseof the NBME.

As discussed below, while although theNCBE does not actually administer the MBE on testday, it is the sole determinant of the tests contents,its timing, and structure. See generally , National

Conference of Bar Examiners, A BOUT THE NBE ANDINTRODUCTION , Available: http://www.ncbex.org/.(last visited Jul. 9, 2010); (Moeser Decl.; Gavin Decl. 6 and 7 .) The NCBE develops and offers the MBE,which is used in most every jurisdiction in thecountry. (Compl. 12; Moeser Decl. 3a (48 statesuse the MBE, including Maryland.) The MultistateBar Examination is designed, as the name connotes,to cover areas of law common to the various states; ittests fundamental legal principles rather than thecase or statutory law of [9] local jurisdictions.National Conference of Bar Examiners, Available:http://www.ncbex.org/. (last visited Jul. 9, 2010).


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Individual state Boards of Law Examiners, like theBoard, separately test areas of law specific to theirrespective states, but the MBE is an essentialcomponent of the bar examination process. See FactBackground, supra at 4. Maryland, for example, usesthe MBE, the Multistate Performance Test, which isalso developed and owned by the NCBE, and thenasks ten questions relevant to Maryland law that theBoard develops. (Moeser Decl. 7.) 10

While the individual jurisdictions are

responsible for on-site monitoring of theadministration of the MBE, the MCBE controls themanner in which the examination is to beadministered. (Gavin Decl. Ex. A .; Gavin Decl. 7-9.) It provides jurisdictions with a lengthy booklet,complete with step-by-step checklists, specifyingexactly how the jurisdiction shall administer theMBE. (Gavin Decl. Ex. A .; See Gavin Decl. 7-9.)

Finally, and most relevant to this case, the NCBEand not the Board has exclusive control over the

accessible formats in which the MBE is provided.(Moeser Decl. 6.) NCBE provides its materials tostate testing authorities, like the Board, in formatsthat are not compatible with generally-availableauxiliary aids and services. ( See May 10, 2010 Letterfrom Attorney General, Ex. C to Declaration of Timothy Elder (Elder Decl.); Ex. C to Declaration of

Anne Blackfield (Blackfield Decl.); Ex. D to

10 While not used by Maryland, the NCBE alsodevelops and owns the MPRE, the Multistate Professional

Responsibility Examination, which is used in 47 jurisdictionsacross the country. (Moeser Dec. 5.)


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Declaration of Michael Witwer (Witwer Decl.);Letter from Robert Burgoyne to Daniel Goldsteindated May 18, 2010, Ex. E to Elder Decl., at 3; andMay 21, 2010 memorandum from Erica Moeser toBar Admission Administrators re: Electronic Deliveryof MBE materials, Ex. B to Gavin Decl., at 1.)

[10]

As the organization that offers 11 the primaryexamination for areas of the law common to the

various states and the examination that is actuallyused by most state bars, as well as the MPT and theMPRE, all essential components used by most states,the NCBE plainly is covered by Section 309 of the

ADA. The MBE is a significant part of the barexamination in Maryland and most other

jurisdictions. To find that the NCBE is not covered bySection 309 would effectively void the statutoryprovision with respect to a significant number of students applying to take the bar examination.NCBE controls the manner in which the examination

is administered and has veto power with respect tocertain testing accommodations, including exclusivecontrol over which accessible formats that theexamination is offered. In sum, NCBE is a private

11 The NCBE offers the MBE to jurisdictions includingthe Board. The Merriam-Webster dictionary definition of the

verb offer includes the following: 5: to make available: afford;especially to place (merchandise) on sale. available athttp://www.merriam-webster.com/dictionary/offer. (last visitedJul. 9, 2010) NCBE provides the MBE to jurisdictions

administering the bar exam at a price of $54 per test booklet.(Moeser Decl. 15.)


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entity that offers licensing and credentialingexaminations and is subject to the requirements of the Act. Given the allegations of the Plaintiffs andthe facts before the Court, the Motion to Dismissshould be denied as to Defendants coverage underthe ADA.

B. The Court Should Consider the Facts andMake a Determination Whether theRequested Auxiliary Aids Are Appropriate.

1. Provision of the Appropriate Auxiliary Aid or Format is Essential.

The crux of NCBEs Motion to Dismiss is that thetesting accommodations NCBE is offering of audioCD, human reader, and/or large print arereasonable as a matter of law. (Def.s Mem. Supp.Mot. Dismiss at 25-39.) The Defendants argument isfundamentally flawed because it ignores the properstandard for determining whether an examination isoffered in an accessible manner.

[11]

The applicable standard is articulated in 28C.F.R. 36.309, a regulation promulgated by theDepartment of Justice at the direction of Congressthat implements title III in the testing context. 42U.S.C. 12186(b). The regulation states thatexaminations must be

administered so as to best ensure that, whenthe examination is administered to anindividual with a disability that impairs

sensory, manual, or speaking skills, theexamination results accurately reflect theindividuals aptitude or achievement level or


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whatever other factor the examinationpurports to measure, rather than reflecting theindividuals impaired sensory, manual orspeaking skills (except where those skills arethe factors that the examination purports tomeasure.)

28 C.F.R. 36.309(b)(i).

The regulation requires that an examination beoffered in a manner that will provide individuals withdisabilities an equal opportunity to demonstrate theirknowledge or abilities to the same degree as otherstaking the MBE. See 28 C.F.R. pt. 36, app. B. at 735(2009). The regulation further articulates therequirement that a title III entity must providemodifications to the manner in which theexamination is given, or the provision of appropriateauxiliary aids unless doing so would fundamentallyalter the skills or knowledge the examination isintended to test or would result in an undue burden.28 C.F.R. 36.309(b)(2), (3).

In general, under title III, whenever a request foran auxiliary aid is made, it is incumbent upon a titleIII entity to properly assess the need for an auxiliaryaid and then to provide the auxiliary aid that allowsfor effective communication. 28 C.F.R. 36.303.When the entity being asked to provide anappropriate auxiliary aid is a testing entity, there isan additional obligation to administer theexamination so as to best ensure that the test-takerwill be able to demonstrate aptitude, achievementlevel or whatever other factor the examinationpurports to measure . . . 28 C.F.R. 36.309(b)(1)(i).

[12]


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Congress intended that the ADA give people withdisabilities an equal opportunity to obtainprofessional or trade licenses and certificationswithout their disabilities impeding on theiropportunity to demonstrate their abilities. When atest contains barriers that have nothing to do withthe aptitudes or achievements it purports tomeasure, it violates this principle and deniesindividuals with disabilities the opportunity topractice trades and professions that require no moreskill or ability than they in fact have. The standardcontained in the regulations implementing Section309 ensures that people with disabilities have accessto high stakes licensing examinations and associatedemployment opportunities and thereby helps torealize a significant part of the ADAs promise. Inlight of the Plaintiffs allegations, as discussed supraat 4-5, that the testing accommodations offered byNCBE are not in fact the appropriate testingaccommodations to best ensure that Plaintiffs candemonstrate their knowledge and abilities on the

MBE, Defendants Motion to Dismiss should not begranted.

2. Provision of Appropriate Auxiliary AidsDoes Not Alter Goods or ServicesProvided By An Entity Covered By TitleIII of the ADA.

NCBE argues that, as a matter of law, it cannotbe required to provide the MBE in an accessibleformat for use with adaptive software because to doso would require changing its goods and services


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something not required by the ADA. (Def.s Mem.Supp. Mot. Dismiss at 21-23.) In support of itsargument, NCBE cites cases 12 that are not on pointbecause they address a concept in the law that isdistinguishable from the issue presented to thisCourt.

[13]

The cited decisions interpreted regulations andguidance issued by the Department and directed atthe general obligations under title III to providegoods in an accessible manner. See 28 C.F.R. 36.307; DOJ TITLE III TECHNICAL ASSISTANCEM ANUAL III 4.2500. Each decision highlighted thedistinction between access to goods and services, onthe one hand, and the provision of goods that arethemselves accessible, on the other, and reasonedthat the ADA does not require a seller to alter thecontent of its goods and services. Weyer , 198 F.3d at1115; McNeil , 205 F.3d at 187-188. Each court reliedupon the Department of Justice title III regulation

and TITLE

III

TECHNICAL

ASSISTANCE

M ANUAL

s

example regarding when a title III entity would nothave to provide an accessible product. Weyer , 198

12 Weyer v. Twentieth Century Fox Film Corp. , 198F.3d 1104, 1115 (9th Cir. 2000) (upholding differences incoverage provided for physical and mental illnesses, reasoningthat the ADA does not regulate the terms of insurance policies);

McNeil v. Time Ins. Col , 205 F.3d 179, 186 (5th Cir. 2000), cert.denied, 531 U.S. 1191 (2001) (upholding limitations on coveragefor particular illnesses because policy limitations are the

content of the defendants product and therefore not regulatedby the ADA.)


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F.3d at 1115; McNeil , 205 F.3d at 187. However, theDepartments example in the guidance was intendedto explain when a particular request to provideaccessible goods might be unreasonable. 13 Recently,in a case [14] based upon the need for appropriate

13 III-4.2500 Accessible or special goods As a general rule, a public accommodation is notrequired to alter its inventory to carry accessible orspecial products that are designed for or easier to useby customers with disabilities. Examples of accessiblegoods include Brailled books, books on audio tape,closed-captioned video tapes, specially sized ordesigned clothing, and foods that meet special dietaryneeds.ILLUSTRATION: A local book store has customarilycarried only regular print versions of books. The ADAdoes not require the bookstore to expand its inventoryto include large print books or books on audio tape.On the other hand, a public accommodation may berequired to special order accessible goods at therequest of a customer with a disability if

1) It makes special orders for unstocked goods in itsregular course of business, and2) The accessible or special goods requested can

be obtained from one of its regular suppliers. [14]ILLUSTRATION: A customer of a local bookstore

begins to experience some vision loss and hasdifficulty reading regular print. Upon request by thecustomer, the bookstore is required to try to obtainlarge print books, if it normally fills special orders (of any kind) for its other customers, and if large printbooks can be obtained from its regular suppliers.

The ADA does not require that manufacturers

provide warranties or operating manuals that arepacked with the product in accessible formats.


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auxiliary aids, as in the case at bar, the Ninth Circuitproperly rejected the same cases that plaintiffs relyupon here because they are inapplicable.Distinguishing Weyer , the Ninth Circuit wrote:

In arguing that the ADAs requirement of auxiliary aids and services is limited by Weyer,Harkins puts the cart before the horse: Weyerdoes not limit subsection 42 U.S.C. 12182(b)(2)(A)(iii)s requirement that a publicaccommodation provide auxiliary aids and

services; the requirement that establishmentsprovide auxiliary aids and services limitsWeyer s general rule that publicaccommodations do not have to providedifferent services for the disabled. AlthoughWeyer may be controlling in the provision of goods and services generally, here Plaintiffsare seeking an auxiliary aid, which isspecifically mandated by the ADA to preventdiscrimination of the disabled.

Arizona v. Harkins Amusement Enterprises, Inc., 603F.3d 666, 670 (9th Cir. 2010).

Similarly, the Harkins court dismissed thecomparison to McNeil in the context of effectivecommunication:

The McNeil court also noted that [t]heprovisions in 12182(b)(1)(A)(i)-(iii)concerning the opportunity to benefit from orto participate in a good or service do not implythat the goods or services must be modified to

ensure that opportunity or benefit. Rather, thissection only refers to impediments that standin the way of a persons ability to enjoy that


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good or service in the form that theestablishment normally provides it. Thedistrict cou

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