Bonnette v. Dist. of Columbia Court of Appeals
| Decision Date | 13 July 2011 |
| Docket Number | Civil Action No. 11–1053 (CKK). |
| Citation | 43 NDLR P 173,796 F.Supp.2d 164 |
| Court | U.S. District Court — District of Columbia |
| Parties | Cathryn Jeanne BONNETTE, Plaintiff, v. DISTRICT OF COLUMBIA COURT OF APPEALS, et al., Defendants. |
OPINION TEXT STARTS HERE
Eve L. Hill, Brown, Goldstein & Levy, LLP, Washington, DC, for Plaintiff.
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.
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.1 ¶ 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.
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...
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