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Cathryn Jeanne Bonnette v. District of Columbia Court of Appeals

July 13, 2011

CATHRYN JEANNE BONNETTE, PLAINTIFF,
v.
DISTRICT OF COLUMBIA COURT OF APPEALS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Plaintiff Cathryn Jeanne Bonnette ("Plaintiff" or "Bonnette"), a legally blind law school graduate, filed this action seeking to require Defendants District of Columbia Court of Appeals ("Court of Appeals") and National Conference of Bar Examiners ("NCBE") to allow her to take the July 2011 Multistate Bar Exam using a computer equipped with an accessible screen-reading program called JAWS (which stands for Job Access With Speech) that is commonly used by individuals with visual impairments. Plaintiff contends that the alternative accommodations offered by Defendants, which include providing a human reader or an audio CD with the exam, are not accessible to her and violate the requirements of the Americans with Disabilities Act ("ADA") and its implementing regulations. Presently pending before the Court are Plaintiff's [2] Motion for Issuance of Preliminary Injunction, Defendant Court of Appeals's [12] Motion for Summary Judgment, and Defendant NCBE's [10] Motion to Dismiss or for Summary Judgment. The parties have fully briefed these motions under an expedited briefing schedule, and therefore the motions are ripe for the Court's resolution.

Based on a searching review of the parties' motions, supporting declarations and exhibits, the applicable legal authorities, and the record as a whole, the Court shall deny Defendants' motions to dismiss and/or for summary judgment and grant Plaintiff's motion for preliminary injunction.

I. BACKGROUND

A. The D.C. Bar Examination

Individuals seeking to become licensed to practice law in the District of Columbia must become members of the District of Columbia Bar. The D.C. Court of Appeals created the Committee on Admissions (the "Committee") in April 1972 to oversee the D.C. Bar, and the Committee is responsible for certifying applications from attorneys for admission to the D.C. Bar, both by examination and without examination. Court of Appeals Stmt.*fn1 ¶ 1. The D.C. Bar Examination is conducted in February and July of every year. Id. ¶ 2. As in virtually every other jurisdiction in the United States, applicants for the D.C. Bar must complete the Multistate Bar Examination ("MBE"), a six hour examination consisting of 200 multiple-choice questions. Id. Applicants for the D.C. Bar also must complete the Multistate Performance Test ("MPT"), consisting of two 90-minute skills questions, and the Multistate Essay Examination ("MEE"), a collection of 30-minute essay questions. Id. All of these examinations are provided by the National Conference of Bar Examiners. Id.

NCBE is a non-profit organization that develops standardized examinations that jurisdictions can choose to purchase and administer as part of their bar examination process. NCBE Stmt. ¶ 9. The MBE is a secure, standardized examination developed and owned by NCBE that is administered in paper-and-pencil format. Decl. of Erica Moeser ("Moeser Decl.")

¶ 3(a). Forty-eight states and the District of Columbia use the MBE as a component of their state bar examinations. Id. ¶ 3(b). To ensure that scores achieved on different versions of the MBE taken at different times have the same meaning, a significant number of well-performing items that appeared on previous administrations of the test are embedded in each current test. Id.

¶ 3(c). In other words, NCBE reuses some of the questions from prior tests on each version of the MBE. This process, which NCBE calls "equating," allows NCBE to compare the performance of candidates on the current test to the performance of prior examinees. Id. Because of this practice, examination security is a critical part of administering the MBE. Id. If examination questions are compromised through unauthorized disclosure, they are retired and must be replaced with new questions. Id. It currently costs NCBE $300,000 and hundreds of hours of work by staff to develop a single form of an MBE exam. Id.

NCBE publishes its MBE test booklets several months prior to the February and July dates on which jurisdictions administer their bar examinations. Moeser Decl. ¶ 3(d). Jurisdictions such as the District of Columbia then order a certain number of test booklets from NCBE based on the number of individuals who have registered to take the exam. Id. NCBE sends the MBE test booklets to each jurisdiction, which then administers the MBE along with other components of the bar examination. Id. NCBE requires that administering jurisdictions comply with a strict set of security procedures set forth in a document captioned "MBE Conditions of Use." See Decl. of Christopher Dix ("Dix Decl."), Ex. (MBE Conditions of Use). These procedures include: documenting a chain of custody for all test booklets and properly securing them at all times; preparing a seating plan that minimizes the possibility for communication between neighboring examinees; and screening all personnel before engaging them as supervisors or proctors. Id. at 1. NCBE requires that the test be administered no earlier than the last Wednesday of February or July, including any special accommodations required by the ADA. Id. at 2. NCBE rules prohibit examinees from bringing written material such as scratch paper or any personal belongings other than pencils to their seats when taking the MBE, require that examinees be seated in straight rows, and prohibit the use of a computer with the MBE. Id. at 3. These security protocols must be followed unless the jurisdiction obtains a separate written agreement from NCBE that describes an alternative practice that ensures the same level of security. Id.

NCBE makes all of its examinations (including the MBE, the MPT, the MEE, and the Multistate Professional Responsibility Examination ("MPRE")) available in several formats so that they can be administered to disabled individuals who cannot effectively access test content using standard examination booklets and answer sheets. Moeser Decl. ¶ 7(a). For visually impaired examinees, NCBE offers the following alternative formats for all of its examinations:

(1) large print paper version, with text up to 72-point font also available in reverse white-on-black contrast; (2) paper version with closed circuit television magnification; (3) Braille version; (4) audio CD, to be played on a portable CD player with two available speeds, and with each question and set of answer choices on a separate track so that examinees can easily replay a question; and (5) using a human reader. Id. ¶ 7(b). Additionally, for examinations such as the MPT and MEE where questions are disclosed after each administration, NCBE makes the examination available on a disk that can be loaded onto a laptop computer and accessed using magnification software (such as ZoomText) and/or screen reader software (such as JAWS). Id.

¶ 7(c). Between 2000 and 2010, jurisdictions have ordered approximately 484 audio versions of the MBE (either audio CD or audio tape) and approximately 92 Brailled examination forms. Id.

¶ 7(d). Applicants who seek testing accommodations on the D.C. Bar Examination must complete an Eligibility Questionnaire and provide documentation supporting their claims of disability and the need for an accommodation. Dix Decl. ¶ 8. The Eligibility Questionnaire provides applicants with an outline to state the nature, history, and accommodations previously afforded for the reported disability. Id. ¶ 9. Once this information has been provided, the Committee on Admissions makes a decision on a case-by-case basis regarding what accommodation(s) to provide. Id. ¶ 8. In the past five years, the Committee has received approximately 125 requests for accommodations as a result of various disabilities, including visual impairment. Id. ¶ 10. The Committee has received five requests in the last nine years from visually impaired individuals, and those applicants were provided with a number of accommodations, including Brailled and large print examinations, audio cassettes/CDs, double time, reader assistance, extra lighting, and, for the MPT and MEE, permission to use a dictating device and laptop computer. Id. No visually impaired person has ever been provided the use of computer-based testing on the MBE portion of the examination. Id.

B. Plaintiff and Her Visual Impairment

Plaintiff Cathryn Bonnette is a highly-educated resident of Arlington, Virginia who has applied to take the July 2011 administration of the D.C. Bar Examination. Decl. of Cathryn Bonnette ("Bonnette Decl.") ¶¶ 2, 8. Bonnette graduated from the University of Michigan with a B.A. in psychology in 1976 and earned a Masters of Divinity degree from Fuller Seminary in 1989. Id. ¶¶ 3, 5. Bonnette later completed a joint degree program in alternative dispute resolution at Pepperdine University, earning a J.D. in 2003 and an M.A. in 2005. Id. ¶¶ 6-7.

Approximately thirty years ago, Bonnette was diagnosed with retinopathy, and her vision has gradually and progressively deteriorated since that time. Bonnette Decl. ¶ 9. She has had total visual impairment in her right eye at least since childhood. Decl. of Alexis G. Malkin ("Malkin Decl.") ¶ 10. Currently, Bonnette has no light perception in either eye and is totally blind. Bonnette Decl. ¶¶ 9-10. Because of her blindness, Bonnette can no longer read standard print. Id. ¶ 11. In the early 1990s, Bonnette began using JAWS to supplement her deteriorating vision. Id. ¶ 13. JAWS, which stands for Job Access With Speech, is screen access software that reads aloud the text on a computer screen and allows a user to independently navigate through the text using a keyboard. Id. ¶ 12. JAWS software allows Bonnette to use key commands to quickly and easily navigate through a document independently, skim text, jump to a particular section or passage in a document, repeat a word or sentence, spell words, control the reading speed, and have independent, non-visual access to reading in a manner that mimics the experience she enjoyed before she lost her vision. Id. By 2001, Bonnette could no longer rely upon her vision to supplement her ability to read text with auditory methods. Id. ¶ 14. Accordingly, Bonnette transitioned to the exclusive use of JAWS for reading text, and it is the primary method she uses to read for work and school, to study for the bar exam, and to perform nearly all academic, technical, and other lengthy reading. Id.

Because Bonnette learned to read visually, she is primarily a visual learner. Malkin Decl.¶ 12. The techniques Bonnette uses when operating JAWS emulate the processes she used before she lost her vision. Id. When Bonnette uses JAWS, she spends considerable energy listening to JAWS describe information about the page layout and how the text is structurally organized. Id. This allows Bonnette to visualize a picture of the page and general layout of the text in her mind. Id. According to Dr. Alexis G. Malkin, an optometrist who has evaluated Bonnette, she would be at a significant loss if she had to rely on serial auditory input of text without any ability to efficiently conceptualize the page layout or structure of the text that she needs in order to fully comprehend the material. Id. ¶ 13.

According to Fredric K. Schroeder, a research professor at San Diego State University who works in the field of vocational rehabilitation, screen reading software has become an essential auxiliary aid for blind individuals in today's technology-driven society. See Decl. of Fredric K. Schroeder ("Schroeder Decl.") ¶ 28. Schools, employers, vocational rehabilitation professionals, and institutions widely provide this accommodation to blind individuals. Id. Dr. Schroeder explains that the functionality of screen access software can provide greater efficiency, proficiency, automaticity, privacy, and independence than the use of a human reader. Id. Dr. Schroeder further explains that the process of learning to read with a human reader takes extensive practice and training. Id. ¶ 21. Dr. Schroeder states that most blind individuals who are computer proficient and who did not learn Braille as a child are advised to use screen access software as a primary reading method. Id. ¶ 22. Screen access software can be customized to meet each reader's specific needs. For example, an individual who was primarily a visual reader and learner before losing her vision may rely on screen access software that offers some visual input in conjunction with auditory output. Id. ¶ 23. For such readers, transitioning to solely audio intake can take months or even years. Id. Once a blind person develops proficiency using screen access software, the process of reading becomes automatic, allowing the reader to concentrate on acquiring the content of the information rather than focusing on the process of how to read. Id. ¶ 24.

C. Plaintiff's Past Use of Auxiliary Aids

While Bonnette was in law school between 2001 and 2003, she was offered only human readers as an accommodation for examinations, despite the fact that JAWS was her primary reading method. Bonnette Decl. ¶ 18. Bonnette believes that her grades from law school reflected her inability to read examination text using human readers. Id. By contrast, in her other graduate studies at Pepperdine, Bonnette was able to use JAWS to write complex papers and work on assigned projects. Id. ¶ 19. Bonnette believes that her grades from her graduate program more accurately reflect her actual abilities rather than her inability to read text. Id. Prior to law school, Bonnette used a human reader to take the Law School Admission Test ("LSAT"). See Bonnette Decl., Ex. C at 44.

In November 2001 and again in August 2002, Bonnette took the MPRE, which was administered by NCBE through a contractor. Moeser Decl. ¶ 9(b). To accommodate her visual impairment during the November 2001 examination, Bonnette was provided with a human reader, a private testing room, stop-the-clock breaks, and double testing time. Id. ¶ 9(c). For the August 2002 administration, Bonnette was provided with a human reader, a private testing room, a transcriber/writer, and double testing time. Id. On the August 2002 MPRE, Bonnette achieved a score sufficient to qualify for admission to the bar in every jurisdiction that requires the MPRE.

Id. ¶ 9(d). On the November 2001 MPRE, she achieved a score that would qualify in some but not all jurisdictions. Id.

Bonnette took the California Bar Examination four times between July 2003 and July 2005, during which she was required to use a human reader as an accommodation. Bonnette Decl. ¶ 20; Moeser Decl. ¶ 9(e). According to NCBE's records, Bonnette's scaled score on the MBE portion of those examinations ranged from 132 to 142. Moeser Decl. ¶ 9(e). To successfully pass the D.C. Bar Examination, applicants must achieve a total scaled score of 266 or greater, which is an average scaled score of 133 on the MBE and on the essay portion. See D.C. Ct. App. R. 46(b)(10)(i). Bonnette did not successfully pass the California Bar Examination. Bonnette Decl. ¶ 20. Bonnette believes that her failure to pass was due in part to her inability to effectively read the content of the examination. Id. Since last taking that test in July 2005, Bonnette has not had the opportunity to work with a human reader in the context of testing. Id.

Bonnette found it very difficult, frustrating, and humiliating to work with human readers on the California Bar Examination and during her law school examinations. Bonnette Decl. ¶ 22. According to Bonnette, human readers often misunderstood what, where, and how she wanted them to read, mispronounced or misread words, and suddenly halted their speech when they encountered a technical legal term with which they were unfamiliar. Id. Bonnette also found that the performance of a human reader deteriorated over the long hours of reading required for the bar examination. Id. In addition, Bonnette explained that human readers often had difficulty reading when she requested that they read consecutive sentences in reverse order. Id. These imperfections and problems ultimately caused Bonnette to break her concentration and shift her attention to the performance of the reader. Id.

After graduating from Pepperdine, Bonnette worked as a program specialist with the Department of Veterans Affairs and as a project coordinator with the National Association of Guide-Dog Users. Bonnette Decl. ¶ 21. Bonnette relied on JAWS for the vast majority of her work-related reading. Id. Bonnette did use human readers, however, to fill out forms and read small amounts of hand-written material where the length of text to be read was no more than a few pages. Id.

Bonnette has never used an audio CD to take an examination. Bonnette Decl. ¶ 17. Bonnette claims that she is not familiar with that method of reading, and therefore she would not be able to precisely operate the controls to read by character, word, phrase, line, sentence, paragraph, and page. Id. Although Bonnette has had minimal instruction in Braille, she does not have the Braille skills necessary to read complex or academic text in an examination setting. Id. ¶ 15.

D. Plaintiff's Request for Accommodations on the D.C. Bar Examination

On or about December 29, 2010, Bonnette submitted a request for testing accommodations for the February 2011 administration of the D.C. Bar Examination. Bonnette Decl. ¶ 27. Bonnette submitted documentation of her disability and asked for the following accommodations: (1) use of a laptop computer with a word processor and JAWS for Windows speech software to read aloud the text of examination questions and to write outlines in organizing essay responses; (2) double time; (3) a separate testing room; (4) a scribe to fill out required paper work or computerized answer sheets that require ovals to be filled in using a pencil; and (5) stoppered bottles of drinking water available as needed in arms length of the keyboard. Id., Ex. C at 46-47. The Committee granted Bonnette's requests with respect to the MEE and MPT portions of the D.C. Bar Examination. Id. ¶ 28. With respect to the MBE, the Committee granted Bonnette's request for double time, a separate testing room, a scribe, and told her that she could bring in her own water as well as her own ergonomic chair. Id., Ex. D. However, the Committee denied Bonnette's request to use a laptop equipped with JAWS for the MBE because it was not permitted by NCBE. Id.; Dix Decl. ¶ 14. The Committee offered Bonnette the use of an audio CD or a human reader who is an attorney. Bonnette Decl., Ex. D.

Because Bonnette did not feel comfortable with the proposed human reader or audio CD accommodations, Bonnette withdrew from the February 2011 administration and told the Committee that she planned to take the examination in July 2011. Bonnette Decl. ¶ 29; Dix Decl. ¶ 15. Bonnette submitted her application for the July 2011 examination on May 10, 2011, again requesting the use of a computer with JAWS as an accommodation for her disability. Bonnette Decl. ¶ 30; Dix Decl. ¶ 16. After a series of negotiations between the Committee and Bonnette's counsel, the Committee offered Bonnette the following accommodations for the July 2011 MBE: audio CD, live reader, and Brailled or large print versions. Dix Decl. ¶ 16. The Committee has also offered to provide Bonnette with a sample CD in advance of the examination so that she can practice with it; to allow Bonnette to meet with the attorney who would serve as a reader in advance of the examination; additional testing time beyond the double time requested; and additional rest breaks. Id. ¶ 17. NCBE has declined to allow the use of JAWS on the MBE even if the Committee reimburses NCBE for any costs associated with such accommodation. Id. ¶ 18.

NCBE has had no interactions with Bonnette in connection with any request for accommodation she has made for the D.C. Bar Examination, including the MBE. Moeser Decl. ¶ 9(f). NCBE is not involved in processing or evaluating applications to take the D.C. Bar Examination or deciding individuals requests for accommodations on the exam. Id. ¶ 8.

Bonnette has worked hard for many years to prepare for the practice of law. Bonnette Decl. ¶ 35. Practicing law is Bonnette's dream and chosen professional goal, and she is unwilling to accept inaccurate assessments of her actual abilities based on her capacity to read using methods other than her primary reading method. Id. Bonnette feels that she will be humiliated and frustrated if she is forced to take the MBE using a reading method other than JAWS, as she was required to do during law school and on the California Bar Exam. Id. Bonnette has set aside most of the summer to study for the July 2011 administration of the D.C. Bar Examination. Id. ¶ 36. She is enrolled in a bar preparation class and has been ...


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