801 F. Supp. 2d 270
D. Vt.2011Background
- Plaintiff Deanna Jones, legally blind with dual visual/learning disabilities, seeks MPRE accommodations using screen-access software.
- NCBE administers the MPRE; Vermont testing occurs via ACT with a paper-and-pencil/secure format; MPRE is a Vermont bar admission prerequisite.
- Jones timely submitted a comprehensive Accommodations Request with medical and educational documentation in June 2011.
- NCBE preliminarily offered some accommodations (triple time, separate room, scribe, etc.) but not the full screen-access suite Jones seeks.
- Court holds that NCBE must provide accommodations to best ensure Jones’s test performance, granting a preliminary injunction for August 5, 2011.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do the ADA 'best ensure' standard apply to MPRE accommodations? | Jones seeks 'best ensure' to equalize testing conditions. | Only 'reasonable accommodations' under Rehabilitation Act-like standard. | Yes; 28 C.F.R. § 36.309(b)(1)(i) governs as 'best ensure'. |
| Are NCBE's proposed accommodations reasonable for Jones? | Accommodations must be individualized to Jones's dual disabilities. | A menu of accommodations suffices since some work for others. | No; requires individualized analysis; NCBE failed to show reasonableness for Jones. |
| Has Jones shown irreparable harm without injunction? | Without accommodations, exam tests disability, not knowledge; harms ongoing study and timing. | Delay alone is not irreparable harm; accommodations can wait. | Yes; irreparable harm shown due to discriminatory testing and impact on studies and career. |
| Is there a likelihood of success on the merits? | Expert testimony shows accommodations are required; Defendant offered inadequate alternatives. | Defendants' accommodations suffice and differ from plaintiff’s needs. | Yes; Plaintiff likely to succeed on merits under 'best ensure' and ADA objectives. |
| Do equities/public interest favor injunction? | Equities favor accommodations to ensure equal testing opportunity; public interest in ADA compliance. | Accommodations may create undue burden and affect other examinees. | Yes; balance and public interest favor granting injunction to provide Jones’s requested accommodations. |
Key Cases Cited
- Winter v. NRDC, 555 U.S. 7 (U.S. 2008) (preliminary injunction standard: likelihood of success, irreparable harm, balance of equities, public interest)
- Jackson Dairy, Inc. v. HP Hood & Sons, Inc., 596 F.2d 70 (2d Cir.1979) (serious questions and balance of hardships test for injunctions)
- Citigroup Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30 (2d Cir.2010) (serious questions approach remains viable post-Winter)
- Doninger v. Niehoff, 527 F.3d 41 (2d Cir.2008) (rigorous standard for mandatory injunctions)
- Enyart v. Nat'l Conference of Bar Examiners, 630 F.3d 1153 (9th Cir.2011) (best remove standard for accessibility in exams; individualized analysis emphasized)
- Bonnette v. Dist. of Columbia Court of Appeals, 796 F. Supp. 2d 164 (D.D.C.2011) (irreparable harm and timing considerations in exam accommodations)