Case 5:11-cv-00174-cr Document 1 Filed 07/01/11 Page 1 of 11

DEANNA L JONES,

U"s,DLSTR rcr caUR '
.'STRICT OF VERHON"
FILED

UNITED STATES DISTRICT COURT

FOR THE

ZOIl JUL -I PH (: 45

DISTRICT OF VERMONT
IV

CLt.<;" ~.

--'-E-"'U T Y (;u:liil(

.,

Plaintiff,

v.
NATIONAL CONFERENCE OF BAR EXAMINERS AND ACT, INC.,

7t-f Civil Action
Docket No.:): I \..( J .. \

Defendants.

LANGH.UCK SPf:HH.Y
& WOOL LLP

COMPLAINT INTRODUCTION 1. Plaintiff Deanna L Jones brings this action against the National Conference of Bar Examiners ("NCBE"), which owns, develops and offers the Multistate Professional Responsibility Examination ("MPRE"), and ACT, Inc. ("ACT"), which administers the MPRE under contract with NCBE. Plaintiff brings this action for violations ofthe Americans with Disabilities Act of 1990, as amended ("ADA"), 42 U.S.C. § 12101, et seq. 2. NCBE contracts with ACT to administer the MPRE three times annually, as well as to evaluate requests for accommodations on the test. The Vermont Board of Bar Examiners, along with all but two other states, requires applicants for admission to the bar to successfully pass the MPRE. 3. Ms. Jones is a legally blind and learning-disabled law school student who has registered to take the MPRE in August 2011. To accommodate her disability, Ms. Jones timely asked ACT to allow her to take the MPRE on a computer equipped with Kurzweil 3000 ("K3000") and ZoomText screen access software. Screen access software programs,

Case 5:11-cv-00174-cr Document 1 Filed 07/01/11 Page 2 of 11

LANGR()C,~K S Pl'H.H.'\" (.~_ 'V()UI_ l"_LJ~"

also called "screen readers," magnify and/or vocalize text, offer a variety of features that allow easy navigation within a text, and enable the speed, volume and timbre of vocalization to be controlled by the user for maximum comprehension and retentive effect. For blind individuals who have not mastered Braille, screen access software is the principal method for gaining access to textual information. Ms. Jones uses these auxiliary aids in combination as her primary reading method. She has taken all her law school exams, and completed all her law school reading assignments, using K3000 and ZoomText in combination.
4. On or about June 17,2011, Ms. Jones applied to take the August 2011 administration of the MPRE and requested that ACT and NCBE accommodate her blindness and learning disability by permitting her to use K3000 and ZoomText screen access software on the test. NCBE typically refuses to make the MPRE available in a format that can be used with screen access software absent a court order.
5. On June 29,2011, ACT, Inc. advised Ms. Jones it will not allow her to take the MPRE on a computer equipped with K3000 and ZoomText for the August 2011 administration. It further denied her requests for a talking clock and for scrap paper.
6. Defendants' refusal to allow Ms. Jones her requested accommodations violates her rights under the ADA and threatens her with irreparable harm to her career, to her professional development, and to her right to take the MPRE without being subjected to unlawful discrimination and the stigma and humiliation that result from such discrimination. Without injunctive relief from the Court, Ms. Jones could only take the MPRE at a competitive disadvantage to her peers that would unlawfully burden her attempt to obtain her license to practice law. Ms. Jones has no adequate remedy at law.
7. Ms. Jones seeks declaratory and injunctive relief to compel Defendants to

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I ..A . NGRUCK SPERRY
& WOOL LLP

provide the MPRE in a format that allows her to use her primary reading method, to wit, in electronic format on a computer equipped with K3000 and ZoomText screen access software. Provision of the exam in this format is necessary to best ensure that Ms. Jones' results on the MPRE will accurately reflect her knowledge and understanding of established standards related to a lawyer's professional conduct rather than reflect her sensory disability. The alternative accommodations that Defendants routinely offer, such as an audio CD or a human reader, are insufficient in that they would deny Ms. Jones the opportunity to compete on an equal basis.
JURISDICTION 8. This is an action for declaratory and injunctive relief brought pursuant to the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1343. 9. This Court has jurisdiction to issue injunctive relief and a declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202.
VENUE
10. Pursuant to 28 U.S.C. §§ 1391(b)(2) and 1391(c), venue is proper in the District in which this Complaint is filed because Defendants' discriminatory conduct is taking place within Vermont and because the events and omissions giving rise to this claim have occurred and are occurring within Vermont.
PARTIES 11. Plaintiff Deanna L. Jones, a resident of Middlesex, Vermont, is a student in the J.D. program at Vermont Law School who will begin her fourth and final year in the program this fall. Like many of her peers, Ms. Jones has planned to take the MPRE in August 2011,

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I ... ANCi-J{'_oC..K SPI<RH,"y & WOOL L1.P

which will allow her to prepare for the exam without neglecting her school work during the semester or her preparation for the full bar exam in summer 2012. Ms. Jones has been legally blind since she was five years old. Her blindness is caused by atypical retinitis pigmentosa with macular degeneration. This condition causes a degeneration of central vision, coupled with the loss of peripheral vision and night vision, and will eventually result in total blindness. Ms. Jones has also been diagnosed with a learning disability that significantly compromises the rate at which she reads and writes. She faces irreparable harm because Defendants will not administer the MPRE in a manner that will ensure that the results accurately reflect her aptitude and achievement level rather than her disability. Passing the MPRE is a requirement to secure a license to practice law in Vermont for anyone who, like Ms. Jones, is not licensed elsewhere.
12. Defendant National Conference of Bar Examiners is a multimillion-dollar corporation that owns, develops and controls various tests relating to the licensing oflaw school students and graduates seeking admission to the bar. Its mission includes assisting bar admission authorities by providing standardized examinations for the testing of applicants for admission to the practice of law. NCBE is headquartered in Madison, Wisconsin, but offers the MPRE in most jurisdictions, including Vermont. NCBE determines the formats (print, Braille, electronic document, etc.) in which the MPRE is offered and the accommodations that are available to examinees with disabilities. NCBE currently offers two examinations in electronic format to examinees with disabilities, the Multistate Performance Test and the Multistate Essay Examination, but it will not provide the MPRE in an electronic format absent a court order.
13. Defendant ACT, Inc. is a large organization that provides a broad array of

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T_,ANGROCK SPVRf{Y & WOOL 1,1,1'

assessment, research, information, and program management services in the area of education - particularly standard testing. ACT is headquartered in Iowa City, Iowa, but operates its programs and, under contract with NCBE, assists in administering the MPRE in nearly every state, including Vermont.
FACTUAL ALLEGATIONS 14. Plaintiff Deanna L. Jones has been legally blind since she was five years old. She is blind as a result of atypical retinitis pigmentosa with macular degeneration. Because of this condition, Ms. Jones cannot read standard print. She retains some residual vision, which enables her to see greatly magnified text, but cannot read enlarged text for a sustained period without suffering motion sickness and eye fatigue. 15.' In 2000, Ms. Jones first had a learning evaluation, which led her clinician to conclude that she has a learning disability. This diagnosis was confirmed in March 2011. Due to her learning disability, Ms. Jones has information processing weaknesses specific to visual processing speed and auditory attention and memory systems as well as weaknesses in phonological decoding/encoding, grammar, and some aspects of higher level verbal reasoning. In combination, the characteristics of her learning disability significantly compromise her listening comprehension and reading comprehension, as well as the rate at which she reads and writes. 16. Since 2003, Ms. Jones has used the screen access software Kurzweil3000 and ZoomText in combination to perform all academic and complex reading tasks. She developed this primary reading method in consultation with an assistive technology specialist, on the recommendation of her clinicians. K3000 reads aloud the text of an electronic document while highlighting the word and paragraph oftext being read. While K3000 vocalizes the

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text, Ms. Jones uses ZoomText to magnify the text display onscreen to understand

organizational elements, locate specific phrases or words she needs to repeat, and to place the

text in a visual context. This reading method enables Ms. Jones to read fluently,

independently and with automaticity, much as a sighted person reads print.

17. Ms. Jones completed one year of undergraduate education at Kutztown

University in Kutztown, Pennsylvania. But she left this program in 1986 because her then-

undiagnosed auditory memory deficiency, coupled with her blindness, made reading and

retaining printed text too difficult to keep up in an academic program.

18. In 2003, after Ms. Jones was armed with assistive technology that made

printed text accessible to her, Ms. Jones began her undergraduate studies at Vermont College

of Union Institute & University. In college, Ms. Jones used her primary reading method,

K3000 together with ZoomText, to complete all reading assignment and papers required by

the curriculum. The program did not require students to take examinations. Ms. Jones

obtained her Bachelor of Arts degree in April 2007.

19. In 2008, Ms. Jones entered Vermont Law School. At Vermont Law School,

Ms. Jones uses her primary reading method, K3000 and ZoomText, to take all examinations

and complete all reading assignments. She is also permitted to take timed examinations with

triple time and breaks every four hours. To date, Ms. Jones has completed 63 out of the

required 87 semester hours, has a cumulative grade point average of 3.208, and is on schedule

to graduate in May 2012.

20. Ms. Jones' rudimentary ability to read Braille materials falls far short of the

L,ANGRUCK SPF:RlZY
& WOOL LLP

Braille skills necessary to read complex legal materials, much less take an examination that tests her legal knowledge. She has also never used an audio CD to take an examination. Ms.

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Case 5:11-cv-00174-cr Document 1 Filed 07/01/11 Page 7 of 11

I ... ANG-H.OCR SP1-::H..RY
& WOOL LLP

Jones' experience with a human reader on the LSAT established that a human reader provides her with a reading facility substantially inferior to that which she can achieve with K3000 and ZoomText.
21. Using a human reader or audio CD to read the complex passages of text that comprise the MPRE would significantly decrease Ms. Jones' ability to read and comprehend that material. Those accommodations would not have the visual input that she requires to comprehend complex material and would not provide her with the automaticity, independent ability to navigate a document, controlled reading speed, visual context, and reading fluency that she relies upon when using K3000 and ZoomText.
22. On or about June 17,2011, Ms. Jones timely submitted to ACT, Inc. a request for accommodations for the August 2011 administration of the MPRE. Among other accommodations, Ms. Jones requested the use of a computer equipped with K3000 and ZoomText screen access software to take the MPRE. Ms. Jones submitted all required documentation supporting her need for these accommodations.
23. On or about June 17, 2011, counsel for Ms. Jones, knowing that NCBE does not authorize ACT, Inc. to make the MPRE available in an electronic format, inquired of counsel for NCBE whether it would undertake an individualized inquiry regarding the suitability ofthe accommodations requested by Ms. Jones, or whether NCBE planned to deny Ms. Jones' requested accommodations for the MPRE, following its established practice of denying requests to take the test with screen access software. On June 20, counsel for NCBE responded, and would not agree that NCBE would undertake an individualized inquiry as to Ms. Jones' accommodations request. Instead, NCBE's counsel indicated that ACT would handle Ms. Jones' request for accommodations. On June 27, 2011, counsel for Ms. Jones

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I.u\.NGROC:J< SPEHRY
&. 'VOOL LLP

inquired of counsel for NCBE whether NCBE would authorize ACT, Inc. to make available the accommodations Ms. Jones has requested. Counsel for NCBE replied that NCBE would not involve itself in ACT, Inc.'s response to Ms. Jones' request for accommodations.
24. On June 29,2011, ACT, Inc. denied Ms. Jones' request to take the MPRE on a computer equipped with K3000 and ZoomText and suggested that she consider unspecified alternative accommodations. Ms. Jones promptly replied, explaining that the alternatives that ACT, Inc. routinely offers - Braille, magnified print, CCTV, human reader and audio CDwould not adequately address her disabilities, but that if ACT, Inc. was proposing any other accommodations to respond before the close of business on June 30, 2011.
25. Ms. Jones is and will continue to be significantly harmed by NCBE's and ACT Inc.'s refusal to offer her the MPRE so as to best ensure that the test results reflect that which the test is designed to measure rather than Ms. Jones' visual impairment and learning disability.
FIRST CAUSE OF ACTION VIOLATION OF THE ADA Plaintiff re-alleges and incorporates herein all previously alleged paragraphs of the complaint. 26. The term "disability" includes, with respect to an individual, a physical or mental impairment that substantially limits one or more of the major life activities of such individual. 42 U.S.C. §12102(2)(A). Plaintiff Deanna L. Jones is an individual with a disability within the meaning of 42 U.S.C. § 12102(2) and 28 C.F.R. §§ 35.104 and 36.104. 27. The ADA prohibits discrimination by private entities, including those that offer professional licensing examinations, such as NCBE and ACT, Inc.

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1,ANC';RC)C~K SPERHl
& v\lOOL LLP

28. The ADA requires private entities that offer standardized examinations
"related to ... applications, licensing, certification, or credentialing for ... postsecondary
education [or] professional ... purposes" to do so in a "place and manner accessible to
persons with disabilities or offer alternative accessible arrangements for such individuals." 42
u.S.C. § 12189; 28 C.F.R. §36.309(a). NCBE and ACT are such entities and the MPRE is
such an examination.
29. The regulation implementing this section of the ADA provides, inter alia, that
a private entity that offers such examinations
must assure that ... [t]he examination is selected and administered so as to best ensure that, when the examination is administered to an individual with a disability that impairs sensory, manual, or speaking skills, the examination results accurately reflect the individual's aptitude or achievement level or whatever other factor the examination purports to measure, rather than reflecting the individual's impaired sensory, manual, or speaking skills ....
28 C.F.R. § 36.309(b)(l)(i).
30. The ADA regulations covering examinations such as the MPRE require, inter
alia, "adaptation of the manner in which the examination is given." 28 C.F.R. § 36.309(b)(2).
The entity offering the examination must, among other things, "provide appropriate auxiliary
aids" unless the entity "can demonstrate that offering a particular auxiliary aid would
fundamentally alter the measurement of the skills or knowledge the examination is intended to
test or would result in an undue burden." 28 C.F.R. § 36.309(b)(3).
31. Unless Ms. Jones takes the MPRE in an electronic format with Kurzweil 3000
and ZoomText screen access software, her results will not accurately reflect what the
examination purports to measure, but will instead reflect her impaired sensory and processing skills.

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Case 5:11-cv-00174-cr Document 1 Filed 07/01/11 Page 10 of 11

32. Defendants' conduct constitutes an ongoing and continuous violation of the

ADA and its supporting regulations. Unless restrained from doing so, NCBE and ACT will

continue to violate the ADA. Unless enjoined, Defendants' conduct will continue to inflict

injuries for which Plaintiff has no adequate remedy at law.

33. Unless the requested relief is granted, Ms. Jones will suffer irreparable harm in

that she will be discriminated against and denied equal access to the MPRE, and be

unlawfully burdened in seeking admission to the legal profession in Vermont.

34. The ADA authorizes injunctive relief as appropriate to remedy acts of

discrimination against persons with disabilities. 42 U.S.C. § 12188(a)(l).

35. Ms. Jones is entitled to injunctive relief, as well as reasonable attorney's fees

and costs.

WHEREFORE, Plaintiff request relief as set forth below.

RELIEF REQUESTED

Plaintiff prays for judgment as follows:

1. A declaration that Ms. Jones is entitled to take the MPRE using a computer

equipped with screen access software and that Defendants, by denying this accommodation,

offer and administer the MPRE in a manner that discriminates against Ms. Jones as a person

with a disability;

2. Preliminary and final injunctive relief requiring Defendants to provide

Ms. Jones the opportunity to take the August 2011 administration of the MPRE in an

electronic format on a computer equipped with Kurzweil3000 and ZoomText screen access

I"ANG1:t{)CK SPl~RH.Y
& WOOL LLP

software, as she has requested and to which she is entitled; 3. An award of Plaintiffs reasonable attorneys' fees and costs; and

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Case 5:11-cv-00174-cr Document 1 Filed 07/01/11 Page 11 of 11
4. Such other and further relief as the Court deems just and proper.
I Dated at Middlebury, Vermont, this __~~ay of July, 2011.
CK SPERRY & WOOL, LLP

549921

Emily J. Jose son, Esq. Michele Part n, Esq. 111 South Peasant Street P.O. Drawer 351 Middlebury, VT 05753-0351 Ph: (802) 388-6356 Fx: (802) 388-6149
Daniel F. Goldstein (to seek admission pro hac vice) Timothy R. Elder (to seek admission pro hac vice) Trevor H. Coe (to seek admission pro hac vice) BROWN, GOLDSTEIN & LEVY, LLP 120 E. Baltimore Street, Suite 1700 Baltimore, MD 21202 Ph: (410)962-1030 Fx: (410) 385-0869
Scott C. LaBarre (to seek admission pro hac vice) LABARRE LAW OFFICES, P .C. 1660 S. Albion Street, Suite 918 Denver, CO 80222 Ph: (303) 504-5979 Fx: (303) 757-3640
Attorneys for Plaintiff Deanna L. Jones

I ..ANGH.OC'K SPFl-{l{V
&. """OOL I .T.P
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Case 5:11-cv-00174-cr Document 1-1 Filed 07/01/11 Page 1 of 1

'l>JS 44 (Rev. 12/07)

CIVIL COVER SHEET

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

I. (a) PLAINTIFFS Deanna L. Jones

DEFENDANTS
National Conference of Bar Examiners and ACT, Inc.

...;.;.;.;==,.;;.;.;,----- (b) County of Residence of First Listed Plaintiff Middlesex (EXCEPT IN U.S. PLAINTIFF CASES)

County of Residence of First Listed Defendant

Dane Cnty., Wisconsin

(IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE LAND INVOL YED.

(c) Attorney's (Finn Name, Address, and Telephone Number) 802-388-6356

Attorneys (If Known) 202-662-4513

Emily J. Joselson, Esq. & Michele B. Patton, Esq., Langrock Sperry Robert A. Burgoyne, Esq., Fulbright & Jaworski LLP, Atty. for

& Wool, LLP, P.O. Drawer 351, Middlebu ,VT 05753-0351

NCBE 801 Penns Ivania Avenue NW, Washin ton, DC 20ltil4

II. BASIS OF JURISDICTION (Place an "X" in One Box Only)

o I U.S. Government
Plaintiff

I!!I 3 Federal Question
(U.S. Government Not a Party)

III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an "X" in One Box for Plaintiff

(For Diversity Cases Only)

and One Box for Defendant)

Citizen ofThis State

PTF DEF
o I 0 I Incorporated or Principal Place

PTF DEF 0 4 04

of Business In This State

o 2 U.S. Government
Defendant

o 4 Diversity
(tndicate Citizenship of Parties in Item III)

Citizen of Another State
Citizen or Subject of a Forei n COUll

o2 o3

0 2 Incorporated and Principal Place ofBusiness In Another State
0 3 Foreign Nation

o5 0 5 o6 0 6

IV NATURE OF SUIT (Place an "X" in One Box Onlv)

o II0 Insurance

PERSONAL INJURY

o 120 Marine

0 310 Airplane

o 130 Miller Act

0 3 15 Airplane Product

o 140 Negotiable Instrument

Liability

o 150 Recovery of Overpayment 0 320 Assault, Libel &

PERSONAL INJURY 0 362 Personal Injury -
Med. Malpractice 0 365 Personal Injury -
Product Liability

& Enforcement ofJudgment

o 151 Medicare Act

0

o 152 Recovery of Defaulted

Slander 330 Federal Employers'
Liability

0 368 Asbestos Personal Injury Product Liability

Student Loans

0 340 Marine

PERSONAL PROPERTY

(Exc!. Veterans)

0 345 Marine Product

o 153 Recovery of Overpayment

Liability

0 370 Other Fraud 0 371 Truth in Lending

of Veteran's Benefits

0

o 160 Stockholders' Suits

0

o 190 Other Contract

o 195 Contract Product Liability 0

o 196 Franchise

350 Motor Vehicle 355 Motor Vehicle
Product Liability 360 Other Personal
Iniurv

0 380 Other Personal Property Damage
0 385 Property Damage Product Liability

:PIlflJmR'h';Vdd

lJ«mIl't1

o 210 Land Condemnation

0 441 Voting

0 510 Motions to Vacate

n 220 Foreclosure

0 442 Employment

Sentence

o 230 Rent Lease & Ejectment 0 443 Housing!

Habeas Corpus:

o 240 Torts to Land o 245 Tort Product Liability

Accommodations 0 444 Welfare

0 530 General 0 535 Death Penalty

o 290 All Other Real Property 0 445 Amer, wlDisabilities- 0 540 Mandamus & Other

Employment

0 550 Civil Rights

~ 446 Arner. wlDisabilities - 0 555 Prison Condition

Other

0 440 Other Civil Rights

o 610 Agriculture o 620 Other Food & Drug o 625 Drug Related Seizure
of Property 21 USC 881
o 630 Liquor Laws o 640 R.R. & Truck o 650 Airline Regs. o 660 Occupational
Safety/Health
0690 Other

o 422 Appeal 28 USC 158 o 423 Withdrawal
28 USC 157
o 820 Copyrights o 830 Patent
n 840 Trademark

o 710 Fair Labor Standards
Act
o 720 Labor/Mgrnt, Relations o 730 Labor/Mgmt.Reporting
& Disclosure Act
o 740 Railway Labor Act o 790 Other Labor Litigation

n 861 HIA (l395ff)
o 862 Black Lung (923)
n 863 DIWCIDIWW (405(g» n 864 ssin Title XVI
o 865 RSI (405(g»
o 870 Taxes (U.S. Plaintiff

0791 Emp!. Ret.lnc. Security Act

or Defendant)
o 871 IRS-Third Party

26 USC 7609

lflI
o 462 Naturalization Application o 463 Habeas Corpus -

Alien Detainee
o 465 Other Immigration

Actions

J\:
0 400 State Reapportionment 0 410 Antitrust 0 430 Banks and Banking 0 450 Cornmerce 0 460 Deportation 0 470 Racketeer Influenced and
Corrupt Organizations 0 480 Consumer Credit 0 490 Cable/Sat TV 0 810 Selective Service 0 850 Securities/Commodities/
Exchange 0 875 Customer Challenge
12 USC 3410 0 890 Other Statutory Actions 0 89 I Agricultural Aets 0 892 Economic Stabilization Act 0 893 Environmental Matters 0 894 Energy Allocation Act 0 895 Freedom ofinformation
Act 0 900Appeal of Fee Determination
Under Equal Access to Justice 0 950 Constitutionality of State Statutes

V. ORIGIN
~ 1 Original
Proceeding

(Place an "X" in One Box Only)

o 2 Removed from

0 3 Remanded from

State Court

Appellate Court

0 4 Reinstated or 0 5 Transferred from 0 6 Multidistrict

Reopened

another district sect

Litigation

C~2t5gc·§gg.S~11J!fd~{~~q~ you are filing (Do not cite jurisdictional statutes unless diversity):

Appeal to District
0 7 Judge from
Magistrate Jud ment

VII. REQUESTED IN COMPLAINT:

Brief description of
violation ot 42

cuaussec:

sec.

121U1

et

seq.

tor

discrimination

in testing

accommodations

o CHECK IF THIS IS A CLASS ACTION

DEMAND s

CHECK YES only if demanded in complaint:

UNDER F.R.C.P. 23

JURY DEMAND:

0 Yes lZJ No

VIII. RELATED CASE(S)

IF ANY

(See inslructions):

JUDGE

DOCKET NUMBER

3 $ . 0 0 - - f - - - - RECEIPT # _ _ _ _ AMOUNT _ ........=. ::::...:;lII'..:::.....- APPLYING IFP

C« JUDGE

MAG. JUDGE - - - - - - - -

5 '·1J-cv' J7L./

 
 Case 5:11-cv-00174-cr Document 32 Filed 07/20/11 Page 1 of 14

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT

DEANNA L. JONES,

)

)

Plaintiff,

)

)

v.

)

)

NATIONAL CONFERENCE OF

)

BAR EXAMINERS AND ACT, INC., )

)

Defendants.

)

Civil Action No.: 5:11-cv-174

STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA REGARDING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
Introduction The U.S. Department of Justice enforces, regulates, and provides technical assistance regarding the Americans with Disabilities Act, 42 U.S.C. § 12101-12213; 28 C.F.R. pt. 36 (“ADA”), including the application of Title III of the ADA to entities offering licensing examinations.1 The United States files this Statement of Interest, pursuant to 28 U.S.C. § 517,2 because this litigation implicates the proper interpretation and application of Title III of the ADA. Under the ADA, professional licensing examinations must be administered in a manner that is accessible to persons with disabilities. 42 U.S.C § 12189. To ensure accessibility, entities

1 See 42 U.S.C. § 12186(b) (requiring the Attorney General to issue regulations for Title III of the ADA); 42 U.S.C. § 12188(b) (providing for enforcement of Title III of the ADA by the Attorney General); 42 U.S.C. § 12206 (authorizing Attorney General to issue technical assistance under Title III). 2 Title 28 U.S.C. § 517 states “[t]he Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States, or in a court of a State, or to attend to any other interest of the United States.”

Case 5:11-cv-00174-cr Document 32 Filed 07/20/11 Page 2 of 14
offering licensing examinations are required to offer “modifications” to an examination or to provide appropriate “auxiliary aids” if needed so as to best ensure that the examination measures an individual with a disability’s aptitude and achievement rather than the individual’s disability. See 28 C.F.R. § 36.309(b)(1-3). Under this statutory and regulatory framework, Plaintiff, Deanna L. Jones, has moved for a preliminary injunction requiring National Conference of Bar Examiners (“NCBE”) and ACT, Inc. (collectively, the “Defendants”) to allow her to use computer and screen reading software while taking the Multistate Professional Responsibility Exam (“MPRE”), along with other test modifications and accommodations.3
In NCBE’s motion in limine in this case, (Docket No. 25, p. 2-4), NCBE has argued for a “reasonableness” standard when evaluating the accommodations offered to visually impaired plaintiffs seeking to take bar examinations.4 The United States does not agree that the testing accommodations offered to Plaintiff by NCBE should be analyzed under a “reasonableness” standard. See NCBE’s Motion in Limine (Docket No. 25), p. 2-4 (citing Fink and Jaramillo). A reasonableness analysis ignores the plain language of the controlling statute and regulation. The Court should evaluate whether NCBE here is offering appropriate auxiliary aids to “best ensure” that the MPRE measures Plaintiff’s knowledge and abilities and not her disabilities. Therefore, the United States urges the Court to analyze Plaintiff’s Motion for Preliminary Injunction and the overall substantive merits of this case under the “best ensure” standard established by the Title III regulation and correctly applied by the Ninth Circuit in Enyart v. National Conference of Bar
3 As explained above, § 12189 and 28 C.F.R. § 36.309 require modifications and auxiliary aids to ensure accessibility. Hereinafter, we refer to such modifications and auxiliary aids as “testing accommodations” or “accommodations.” 4 Because of the parties’ stipulation to dismiss ACT, Inc. as a defendant (Docket No. 16), the United States focuses this Statement of Interest on positions taken by NCBE.
2

Case 5:11-cv-00174-cr Document 32 Filed 07/20/11 Page 3 of 14
Examiners, 630 F.3d 1153 (9th Cir. 2011) and, most recently, by the District Court for the District of Columbia in Bonnette v. District of Columbia Court of Appeals, No. 11–1053 (CKK), 2011 WL 2714896 (D.D.C. July 13, 2011).
Statutory and Regulatory Background Congress enacted the ADA in 1990 “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. §12101(b)(1). In enacting the ADA, Congress found that “discrimination against individuals with disabilities persists in such critical areas as employment . . . education . . . [and] communication” and further found that, “the continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous, and costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.” 42 U.S.C. §§ 12101(a)(3), (a)(8). Congress required the Attorney General and the Department of Justice to issue regulations implementing the ADA and expected that the interpretation of the ADA and requirements to eliminate discrimination against persons with disabilities would evolve over time with the advent of new technology. “The types of accommodations and services provided to individuals with disabilities, under all of the titles of this bill, should keep pace with the rapidly changing technology of the times.” H.R. Rep. No. 101-485(II), at 108 (1990). Consistent with this approach, the Department of Justice made clear in the preamble for the Title III regulation that appropriate auxiliary aids should keep pace with emerging technology. See 28 C.F.R. pt. 36, app. C (2011) (auxiliary aids and services).
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Section 309 of the ADA provides, “[a]ny person that offers examinations or courses related to applications, licensing, certification, or credentialing for secondary or post-secondary education, professional, or trade purposes shall offer such examinations or courses in a place and manner accessible to persons with disabilities or offer alternative accessible arrangements for such individuals.” 42 U.S.C. § 12189. The legislative history of Section 309 explains that “this provision was adopted in order to assure that persons with disabilities are not foreclosed from educational, professional, or trade opportunities because an examination or course is conducted in an inaccessible site or without an accommodation.” H.R. Rep. No. 101-485 (III), at 68-69 (1990). Following notice and comment rulemaking, the Attorney General promulgated 28 C.F.R. § 36.309 to implement Section 309 of the statute. That regulation provides that private entities offering examinations must select and administer these examinations so that they “best ensure that, when the examination is administered to an individual with a disability that impairs sensory, manual, or speaking skills, the examination results accurately reflect the individual's aptitude or achievement level or whatever other factor the examination purports to measure, rather than reflecting the individual's impaired sensory, manual, or speaking skills (except where those skills are the factors that the examination purports to measure).” 28 C.F.R. § 36.309(b)(1)(i).5 The regulation goes on to state that “[r]equired modifications to an
5 The requirement that the examination must “best ensure” fair examination of the test-taker’s knowledge was adopted from the Department of Education’s Rehabilitation Act Section 504 requirements for admissions examinations in post-secondary institutions. 28 C.F.R. pt. 36, app. B at 715 (2009) (referring to 34 C.F.R. § 104.42(b)(3)). Title I of the ADA includes similar language in the context of tests required for employment. Section 12112(b)(7) of Title I requires “select[ing] and administer[ing] tests concerning employment in the most effective manner to ensure . . .” that the test reflects the disabled job applicants’ or employees’ aptitude and not their disabilities. Therefore, in the context of examinations, the Department of Education’s Rehabilitation Act regulations and the regulations informing Titles I and III of the ADA all include some variation of the “best ensure” standard and not a reasonableness standard.
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examination may include changes in the length of time permitted for completion of the examination and adaptation of the manner in which the examination is given.” 28 C.F.R. § 36.309(b)(2). The regulation further provides that private testing entities shall provide appropriate auxiliary aids “unless that private entity can demonstrate that offering a particular auxiliary aid would fundamentally alter the measurement of the skills or knowledge the examination is intended to test or would result in an undue burden.” 28 C.F.R. § 36.309(b)(3). Section 36.309, its “best ensure” standard, and the analyses contained in Enyart and Bonnette should control the outcome of this case.
Factual Background6 Plaintiff Deanna Jones is a law student at Vermont Law School with significant visual disabilities. (Compl. ¶ 11.) The Vermont Board of Bar Examiners requires applicants for admission to the bar to submit a passing score on the Multistate Professional Responsibility Exam. (Compl. ¶ 2.) Jones plans to take the Multistate Professional Responsibility Examination in August 2011. (Compl. ¶ 11.) NCBE develops and owns the MPRE and determines the formats in which the MPRE is offered. NCBE has contracted with ACT, Inc. to administer the MPRE in Vermont. (Compl. ¶ 12.) Since 2003 and throughout law school Jones has used the screen access software Kurzweil 3000 and Zoomtext in combination to perform all academic and complex reading tasks. (Compl. ¶¶ 3, 16.) Without the use of this adaptive software, Jones alleges that she is unable to read in a manner comparable to other individuals and alleges that she will be unable to compete on an equal basis with other test takers. (Compl. ¶¶ 3, 6, 7.)
6 The United States has not developed an independent factual record in this matter and, for purposes of this Statement of Interest, assumes the facts alleged in Plaintiff’s Complaint to be true.
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Jones submitted a request for accommodations, including the use of adaptive software, to

ACT, Inc. on June 17, 2011. (Compl. ¶ 22.) In addition, counsel for Jones contacted NCBE’s

counsel to determine whether NCBE would conduct an individualized inquiry as to Jones’

request. (Compl. ¶ 23.) NCBE’s counsel responded by informing Jones’ counsel that NCBE

would not make an individualized inquiry as to Jones’ request and that ACT, Inc. would decide

Jones’ request for accommodation. (Compl. ¶ 23.) ACT Inc. responded to Jones’ request for

accommodation with a list of accommodations it would be willing to provide. (Compl. ¶ 24.)

Specifically, ACT Inc.’s representative stated in an email that ACT, Inc. “approved your request

for extended time (triple), a single room, a transcriber, stop-the-clock breaks (2 at 15 minutes

each), a magnifying glass and food/drink during the exam on the basis of a visual impairment

and a learning disability.” (Email of Susan Piper, ACT, Inc. Consultant, attached as Exhibit B to

Declaration of Michelle B. Patton, Esq. and filed on July 1, 2011, Docket No. 2-2.) ACT, Inc.’s

proposed accommodations did not include taking the MPRE on a computer equipped with the

screen access software Kurzweil 3000 and Zoomtext, and therefore, according to Plaintiff’s

allegations, did not address Jones’ disabilities to best ensure that her test results would reflect

that which the test is designed to measure. (Compl. ¶ 24, 25.)

Argument

A.

The Court Should Apply the “Best Ensure” Standard, Not the

“Reasonableness” Standard Advocated by the Defendants.

When a court “reviews an agency’s construction of the statute which it administers, it is

confronted with two questions.” Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S.

837, 842 (1984)). First, the court must determine whether the statute is “clear and unambiguous”

(“Step 1”). Chevron, 467 U.S. at 842; Kruse v. Wells Fargo Home Mortgage, Inc., 383 F.3d 49,

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Case 5:11-cv-00174-cr Document 32 Filed 07/20/11 Page 7 of 14
55 (2d Cir. 2004). “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842-43.
If, however, the provisions of the statute are unclear or ambiguous, then the court must decide whether “the agency’s answer is based upon a permissible construction of the statute” (“Step 2”). Chevron, 467 U.S. at 843; see also Kruse, 383 F. 3d at 55 (same). Where Congress has made an “express delegation of authority to the agency to elucidate a specific provision of the statute by regulation,” such regulations are given “controlling weight unless they are arbitrary, capricious, or manifestly contrary to statute.” Chevron, 467 U.S. at 844. Because Congress expressly directed the Attorney General to promulgate regulations for Title III of the ADA, the Department’s regulations and interpretation thereof are entitled to substantial deference. See Enyart v. Nat’l Conf. of Bar Exam., Inc., 630 F.3d 1153, 1160-61 (9th Cir. 2011) (affording Attorney General’s ADA regulations deference under Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984) in granting preliminary injunction to blind law student seeking to use screen reader during Multistate Bar Exam); Auer v. Robbins, 519 U.S. 452, 461 (1977) (agency’s interpretation of its regulations “controlling unless plainly erroneous or inconsistent with the regulation”).
With this analytical framework in mind, Defendant’s argument (Docket No. 25, p. 2-4) that Plaintiff’s Motion for a Preliminary Injunction should be denied because the testing accommodations NCBE and ACT, Inc. offered to Jones are reasonable as a matter of law should be rejected. Defendant’s proposed reasonableness analysis for testing accommodations subject to the requirements of Section 309 of the ADA impermissibly imports broader, inapplicable
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ADA principles and ignores the proper standard for determining whether the examination is offered in an accessible manner. The term “reasonable accommodations” – explicit in Title I – does not appear in the Title III statutory and regulatory provisions at issue in this case. Defendant NCBE argues here that case law and guidance interpreting the ADA’s “reasonable accommodation” requirement under Title I of the ADA – the statute’s employment provisions -should control the court’s analysis of testing accommodations under Title III. NCBE is wrong. On the contrary, the controlling provisions, 42 U.S.C. § 12189 and 28 C.F.R. § 36.309, which govern the conduct of entities offering licensing examinations -- require NCBE to offer testing accommodations to best ensure that Plaintiff’s aptitude or achievement level are reflected in the test results.
Section 36.309(b) requires that an examination be offered in a manner that provides individuals with disabilities an equal opportunity to demonstrate their knowledge or abilities to the same degree as others taking the MPRE. See 28 C.F.R. pt. 36, app. C (2011) (examinations and courses). Enyart v. Nat’l Conference of Bar Exam’rs, 630 F.3d 1153, 1163 (9th Cir 2011); Bonnette v. Dist. of Columbia Court of Appeals, No. 11–1053 (CKK), 2011 WL 2714896, *19 (D.D.C. July 13, 2011). The regulation further articulates the requirement that a Title III testing entity must modify the manner in which the examination is given, or provide appropriate auxiliary aids “unless doing so would fundamentally alter the skills or knowledge the examination is intended to test or would result in an undue burden.” 28 C.F.R. § 36.309(b)(2), (3).
Congress intended that the ADA give people with disabilities an equal opportunity to obtain professional or trade licenses and certifications without their disabilities impeding their
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Case 5:11-cv-00174-cr Document 32 Filed 07/20/11 Page 9 of 14

opportunity to demonstrate their abilities. When a test contains barriers that have nothing to do

with the aptitudes or achievements it purports to measure, it violates this principle and denies

individuals with disabilities the opportunity to practice trades and professions that require no

more skill or ability than they in fact have. The standard contained in the regulations

implementing Section 309 ensures that people with disabilities have access to high stakes

licensing examinations and associated employment opportunities and thereby helps to realize a

significant part of the ADA’s promise.

B.

The Ninth Circuit Court of Appeals, affirming the District Court for the

Northern District of California, and the District Court for the District of Columbia

Have Rejected Defendants’ Analysis of Their Obligations When Offering Licensing

Examinations.

The suggestion that offered accommodations are reasonable as a matter of law under §

309 of the ADA has been rejected in several recent cases and should be rejected here. In Enyart v. National Conference of Bar Examiners, 630 F.3d 1153 (9th Cir 2011), and in Bonnette v.

District of Columbia Court of Appeals, No. 11–1053 (CKK), 2011 WL 2714896 (D.D.C. July

13, 2011), the Ninth Circuit Court of Appeals and the District Court for the District of Columbia,

confronted largely the same issues present here. In each case, the courts rejected defendant’s

reasonable accommodation standard and adopted the Department of Justice’s interpretation of its statute and regulations.7

7 Following the Ninth Circuit’s Enyart decision, the District Court for the Northern District of California, in an extremely similar factual scenario to Jones’ case, also rejected NCBE’s arguments regarding the statutory and regulatory framework for provision of licensing examinations. Elder v. National Conference of Bar Examiners, No. C 11-00199 SI, 2011 WL 672662 (N.D. Cal. Feb. 16, 2011). In an earlier case involving Timothy Elder as one of the plaintiffs arguing for many of the same accommodations as Ms. Enyart and Jones when taking the Multistate Bar Examination, the District Court for the District of Maryland explained the need for a more complete factual record when rendering an oral opinion and issued a one page order denying plaintiffs’ motion for a preliminary injunction and also denying NCBE’s motion to dismiss. Elder v. National Conference of Bar Examiners, No. 1:10-cv-01418JFM, Docket No. 49 (D. Md. July 13, 2010). The Elder case in the District of Maryland was later dismissed without
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Case 5:11-cv-00174-cr Document 32 Filed 07/20/11 Page 10 of 14
1. Enyart v. National Conference of Bar Examiners, 630 F.3d 1153 (9th Cir 2011). Enyart involved a legally blind applicant to the bar of California, who requested a series of testing accommodations from NCBE and ACT, Inc. when taking the Multistate Bar Examination and the MPRE. As in Jones’ case, the defendants in Enyart did not agree to allow Ms. Enyart to use a laptop equipped with assistive screen-reader software and screen magnification software. Addressing the standard to be applied to the plaintiff’s testing accommodation request, the Ninth Circuit rejected the argument that § 12189 requires only “reasonable accommodation.” Enyart, 630 F.3d at 1161-63. Instead, the Ninth Circuit applied the standard set out in the Department of Justice’s examinations regulations that testing accommodations must be offered to “best ensure” the examination results accurately reflect applicants’ aptitudes rather than disabilities. Id. In granting deference to the Department of Justice’s “best ensure” standard, the Ninth Circuit explained that “Congress did not incorporate 45 C.F.R. 84.12’s “reasonable accommodation” standard into § 12189. Id. at 1162 (emphasis in original). To the contrary, Enyart holds that a requirement that testing entities “must provide disabled people with an equal opportunity to demonstrate their knowledge or abilities to the same degree as nondisabled people taking the exam—in other words, the entities must administer the exam ‘so as to best ensure’ that exam results accurately reflect aptitude rather than disabilities” is a “reasonable reading of § 12189’s requirement that entities make licensing exams ‘accessible.’” Id.
prejudice on mootness grounds because all three plaintiffs passed the Multistate Bar Examination as part of the Maryland bar examination. Id., Docket No. 57 (D. Md. November 29, 2010). The Department of Justice is not aware of any other cases addressing the statutory and regulatory framework for entities offering licensing examinations other than Enyart and Elder in the courts of the Ninth Circuit, Elder in the District of Maryland, and Bonnette in the District Court for the District of Columbia. Defendants in Enyart have filed a petition for certiorari that has not been ruled on as of this filing.
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Case 5:11-cv-00174-cr Document 32 Filed 07/20/11 Page 11 of 14
2. Bonnette v. District of Columbia Court of Appeals, No. 11–1053 (CKK), 2011 WL 2714896 (D.D.C. July 13, 2011). Cathyrn Bonnette is a legally blind individual who requested testing accommodations when taking an examination offered by the National Conference of Bar Examiners. Bonnette made her requests as she prepared to sit for the July 2011 District of Columbia Bar Examination. Bonnette v. District of Columbia Court of Appeals, No. 11–1053 (CKK), 2011 WL 2714896, at *6 (D.D.C. July 13, 2011). Bonnette’s requests for testing accommodations, like those of Deanna Jones, included a request to use a screen-reading program installed on a laptop computer. Id. Ultimately, NCBE rejected Bonnette’s request to use this screen-reading software. Id. at *8. In response, Bonnette filed suit and moved for a preliminary injunction. On July 13, 2011, the District Court for the District of Columbia granted the preliminary injunction. The Bonnette Court, like the Ninth Circuit in Enyart, squarely rejected defendants’ view that a visually impaired plaintiff’s requests for testing accommodations should be evaluated under a “reasonable accommodation” standard. With respect to NCBE and other private entities (such as ACT, Inc.), the court explained that it “must defer to the Justice Department’s regulation interpreting the requirements of § 12189.” Id. at *15 (citations omitted). The Bonnette Court also rejected defendants’ reliance on inapposite case law such as Fink v. N.Y. City Department of Personnel, 855 F. Supp. 68 (S.D.N.Y. 1994) and Jaramillo v. Professional Examination Service., Inc., 544 F. Supp. 2d 126 (D. Conn. 2008), which are both relied upon by NCBE in its motion in limine (Docket No. 25, p. 2-4) in this matter. As Bonnette explains, “the plaintiffs in both Fink and Jaramillo brought claims under Section 504 of the Vocational Rehabilitation Act, 29 U.S.C. § 794(a), which explicitly embraced a “reasonable
11

Case 5:11-cv-00174-cr Document 32 Filed 07/20/11 Page 12 of 14
accommodation” standard through its implementing regulations.” Bonnette, 2011 WL 2714896, at *16. The Bonnette court explained that Congress adopted this reasonable accommodation standard in Title I of the ADA, which addresses employers. But, “Congress did not incorporate this standard into § 12189.” Id. The court noted that although covered entities must make “reasonable modifications to policies, practices, and procedures, this general standard does not override the more specific regulatory guidance relating to the testing context.” Id. The court explained that in the testing context, “it is essential that the content of the questions and the answer choices be communicated to the examinee in a clear and efficient manner so that the examinee can carefully evaluate the choices and select an answer within the time allotted for the examination.” Id.
Finally, the United States urges this Court to apply the “best ensure” standard without allowing the application of the correct standard to be affected by lesser accommodations provided to Plaintiff in the past. As explained by the Bonnette Court, “[t]he fact that [Plaintiff] could take the [test] using a human reader does not mean that this accommodation would best ensure that her score reflected her achievement level rather than her visual impairment; [Plaintiff] is entitled to an auxiliary aid that allows her to perform at her achievement level, not just one that might be good enough for her to pass.” Id. at *19 (emphasis in original).
Conclusion The clear weight of authority and the correct interpretation of the statutory and regulatory framework governing entities offering licensing examinations requires NCBE to offer Deanna Jones testing accommodations that “best ensure” that the MPRE reflects her abilities and not her impairments. This Court should reject arguments to the contrary.
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Case 5:11-cv-00174-cr Document 32 Filed 07/20/11 Page 13 of 14
Dated at Burlington, in the District of Vermont, this 20th day of July, 2011. Respectfully submitted, UNITED STATES OF AMERICA THOMAS E. PEREZ Assistant Attorney General Civil Rights Division TRISTRAM J. COFFIN United States Attorney District of Vermont
By: /s/ Nikolas P. Kerest NIKOLAS P. KEREST Assistant U.S. Attorney District of Vermont P.O. Box 570 Burlington, VT 05402-0570 (802) 951-6725 Nikolas.Kerest@usdoj.gov
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Case 5:11-cv-00174-cr Document 32 Filed 07/20/11 Page 14 of 14
CERTIFICATE OF SERVICE
I, Diane Barcomb, Legal Assistant for the United States Attorney’s Office for the District of Vermont, do hereby certify that on July 20, 2011 I filed the STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA REGARDING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION with the Clerk of the Court. The CM/ECF system will provide service of such filing via Notice of Electronic Filing (NEF) to the following NEF parties:
Trevor Coe, Esq. Timothy R. Elder, Esq. Daniel F. Goldstein, Esq. Robert B. Hemley, Esq. Emily J. Joselson, Esq. Karen McAndrew, Esq.
And I also caused to be served by U.S. Postal Service, the following non-NEF parties:
Robert A. Burgoyne, Esq. Fulbright & Jaworski L.L.P. 801 Pennsylvania Avenue, NW Washington, DC 20004
Caroline M. Mew, Esq. Fulbright & Jaworski L.L.P. 801 Pennsylvania Avenue, NW Washington, DC 20004
Michele B. Patton, Esq. Langrock Sperry & Wool, LLP 111 South Pleasant Street P.O. Drawer 351 Middlebury, VT 05753-0351 Dated at Burlington, in the District of Vermont, this 20th day of July, 2011.
/s/ Diane Barcomb DIANE BARCOMB Legal Assistant
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 -0:5.."ors"r~R i'eT Cnno T

DiSTRICT OF VER11"okr

UNITED STATES DISTRICT COURT


fiLED

FOR THE
 DISTRICT OF VERMONT

2nl'~UG-2 AMII:26
,C ER l(

DEANNA L. JONES, Plaintiff,
v. NATIONAL CONFERENCE OF BAR EXAMINERS,
Defendant.

)

t-Ui'{CLL:;:';K

)

)

)

)

Case No. 5:11-cv-174

)

)


)


)


)


ORDER GRANTING PLAINTIFF'S MOTION FOR
 PRELIMINARY INJUNCTION
 (Doc. 2)

This matter came before the court on July 22 and August 1, 2011 for an evidentiary hearing on Plaintiff Deanna L. Jones's Motion for a Preliminary Injunction (Doc. 2). Plaintiff alleges Defendant National Conference of Bar Examiners is violating the Americans With Disabilities Act, 42 U.S.C. §§ 12181, et seq. ("ADA") by refusing to allow Plaintiff to access the Multistate Professional Responsibility Exam ("MPRE") using a computer equipped with screen access software. Plaintiff seeks an injunction requiring Defendant to provide this and other accommodations. Defendant opposes Plaintiff s motion, arguing that Plaintiff failed to engage in an interactive process to reach agreement on the appropriate accommodations for the MPRE and created her own emergency by untimely notifying Defendant of her requested accommodations. Defendant further contends that Plaintiff cannot satisfy the requirements for a preliminary injunction and asserts the accommodations Defendant has offered Plaintiff for the MPRE are "reasonable accommodations" as a matter oflaw.
For the reasons set forth below, the court hereby GRANTS Plaintiff s request for injunctive relief.

I. Factual Findings.
Based upon the preponderance of the evidence, the court makes the following
findings of facts:
1. Plaintiff is an approximately forty-four year old student in her third year of a four year program at Vermont Law School ("VLS") who has applied to take the August 5,2011 MPRE exam.
2. Defendant is a non-profit organization with sixty-four full-time equivalent employees based in Madison, Wisconsin. Defendant developed and owns the MPRE and determines the format in which the MPRE is offered. Defendant has contracted with ACT, Inc. ("ACT") to administer the MPRE in Vermont. A passing score on the MPRE is a condition precedent to a lawyer's admission to practice law in the Vermont. Defendant has developed and owns three other standardized examinations: the Multistate Bar Examination ("MBE"), the Multistate Essay Examination ("NIEE"), and the Multistate Performance Test ("MPT").
3. The MPRE is a sixty-question standardized test which tests an applicant's knowledge of the law governing the conduct of lawyers, including the disciplinary rules of professional conduct currently articulated in the American Bar Association ("ABA") Model Rules of Professional Conduct, the ABA Model Code of Judicial Conduct, and controlling constitutional decisions and generally accepted principles established in leading federal and state cases and in procedural and evidentiary rules. The test is designed to last approximately two hours and is typically administered as a "paper-and-pencil" examination. It is considered a "secure" test in that the questions used may be re-used in future years so that scores may be "equalized" over multiple test years. The test is offered in August, November, and March, with November being the most popular month and August the least. The vast majority oflaw students take the MPRE in their third year oflaw school. The MPRE is a pass/fail exam although it is graded numerically. In Vermont, a score of 80 is a passing score.
4. Defendant estimated that each MPRE exam costs Defendant approximately $150,000 to $200,000, although it did not explain how this estimate was derived. Defendant considers the MPRE a "high stakes" examination which requires a high level of reliability and integrity. An applicant must timely register for and pay a fee of $63 to take the exam. An applicant may take the NIPRE on multiple occasions.
5. The MBE, like the MPRE, is a "secure" test. The MPT and MEE are not and Defendant routinely offers these tests in an electronic format and also allows them
2


to be taken with magnification software such as ZoomText and screen reader software such as the Kurzweil3000. Defendant does not generally offer these options with regard to the 1IIBE and MPRE because of its security concerns. Instead, Defendant's protocols require it to furnish its secure tests in a locked case which contains a laptop which Defendant has loaded with the test and the specialized software. Through a pilot program in 2008 and 2009, Defendant has had the opportunity to experiment with screen access software for visually impaired persons and thus Defendant is not unfamiliar with the accommodations Plaintiff has requested.
6. One security concern identified by Defendant is that a visually impaired test taker under the surveillance of a one-on-one proctor could place a "thumb drive" in the laptop and copy the test. Defendant, however, is able to disable the thumb drive access on the laptop it provides to test takers and this security concern has never come to fruition. Defendant has had several temporary security breaches with paper and pencil administrations of the MPRE. It has never had a known security breach with the computer-based format of the MPRE exam which it has offered on several occasions.
7. Plaintiff has been legally blind since age five. She has atypical retinitis pigmentosa with macular degeneration in each eye which deprives her of centralized vision and prevents her from seeing anything other than objects in the periphery of her vision. She has a very small island of vision that she can access from the periphery by adjusting the angle at which she views an object. Her limited peripheral vision is deteriorating. Indeed, Plaintiff s overall vision has progressively worsened during her lifetime. Her distance visual acuity on April 20,2011 measured 8/400 (20/1000) in the right eye and 8/500 (20/1250) in the left eye. For reading fluently, Plaintiff requires slightly more than 20 times (20x) magnification to be able to function at near range with standard print. Plaintiff carries a hand magnifier with fourteen times (14x) magnification with her at all times.
8. Plaintiff describes her early education as a "rough ride" with her mother attempting to reteach Plaintiff everything after school that Plaintiff was supposed to learn in the course of a school day. Plaintiff credibly testified: "I got through school and I worked really hard with mother every day. I would come home most days and be a wreck. I was overwhelmed. Mother helped sort it out." Plaintiff did not achieve any significant measure of academic success during this early time period.
9. Upon graduation from high school, Plaintiff attended college for approximately one year. During this time period, Plaintiff had access to large print and human readers. She failed numerous classes and had a G.P.A. of .92. Plaintiff dropped out of college and decided to pursue a career in food service and other enterprises
3


in which she demonstrated both competence and leadership skills. During this time period, Plaintiff worked with her optometrist, Stephen Feltus, and an assistive technology expert for the visually impaired, Geoffrey Howard, in an effort to accommodate her visual impairments. In addition to a hand held magnifier and the use of human readers, Plaintiff used a closed circuit television ("CCTV") which magnifies text.
1O. Plaintiff eventually became aware that she had other challenges beyond her blindness and that she was unable to retain information like other people including her older brother who is also legally blind. When a family member was diagnosed with a learning disability, Plaintiff began to investigate whether a learning disability might also be contributing to her own educational challenges.
11. In 2000, Plaintiff was evaluated by Shirley Bate, M.Ed., C.A.S. and Lorraine Clodfelter, M.S., who administered to Plaintiff a battery oftests to determine whether Plaintiff had a learning disability. Although Plaintiff was not initially diagnosed with a learning disability, several learning deficiencies were identified. A subsequent evaluation by Ms. Bate in August of 2003 concluded that Plaintiff suffered from a reading disability due to deficits in phonological memory and phonological awareness.
12. As part of her investigation of whether she had a learning disability, Plaintiff consulted with Geoffrey Howard who recommended that Plaintiff use ZoomText, which is a computerized magnification program, and Kurzweil 1000, which is a text-to-speech software program that highlights in different colors words and sentences on a computer screen, as well as an audio reading of the text that tracks the highlighting. Plaintiff began working with both programs and immediately demonstrated an ability to access written text in a manner that had previously eluded her.
13.Plaintiff used the ZoomText and Kurzweil software and "for the first time felt [she] could really access the information." She enrolled in college "and for the first time in [her] life she could read anything [she] want[ed]" and "didn't feel stupid." Prior to the use of this technology, the only book Plaintiff had ever read completely was The Diary of Anne Frank which she used for every book report she was assigned. Plaintiff achieved her first sustained educational success in college and began to consider pursuing a law degree which had been a childhood dream.
14. The Law School Admission Test ("LSAT") is a multiple choice and essay examination which takes a half-day to complete under standard conditions. In 2007, Plaintiff requested accommodations for the LSAT pertaining solely to her visual impairment. She requested triple time for the examination, but was granted only double time which she did not fully use. Plaintiff was allowed to use a computer for the essay portion of that exam. She had a reader for the multiple
4


choice section of the exam. Plaintiff found the LSAT experience frustrating and does not feel she performed to the full extent of her abilities. She recalls the experience as a very long day in which she was "just trying to survive." She received a score of 148 which is in the 37th percentile.
15. VLS is the only law school to which Plaintiff applied. Throughout law school, in addition to other accommodations, Plaintiff has used and continues to use a Windows XP laptop computer equipped with ZoomText 9.12 and Kurzweil3000 v. 11.05 for all of her lengthy reading assignments and to read all examination materials. The screen-access software enables Plaintiff to listen to a vocalization of the electronic text, visually track highlighted lines and words as they are vocalized, magnify the displayed text, and navigate within the text in a manner that is similar to the access provided by sighted reading. In addition to highlighting text, the software allows the user to obtain precise voice adjustments and increase and decrease reading speed.
16.Plaintiff uses screen-access software as her primary reading method and is very proficient in its use. It is the most effective method by which she may access lengthy written text. Plaintiff has been able to perform well in law school with its assistance, although she still faces challenges not encountered by her sighted peers. Even with screen-access software, Plaintiff requires additional time to navigate through text and complete a written examination. She also requires the ability to take notes so that she can repeat information she has heard and more readily recall it.
17. The ZoomText software program was first released in 1998 and is currently the most popular large print software program nationwide for the visually impaired. The Kurzweil1000 software program was first released in 1978 and was initially marketed only to the visually impaired. The Kurzweil3000 program is currently marketed to both the visually impaired and to individuals with dyslexia.
18.As part of Plaintiff s request for accommodations with regard to the MPRE, the Stem Center, which is a professional entity that, among other things, provides diagnostic testing, assessments, and evaluations for learning disabilities, performed a comprehensive analysis of Plaintiffs reading and writing abilities to determine whether she might have dyslexia or some other learning disorder. The Stem Center found that Plaintiffs cognitive abilities fell solidly in the average range with some below average and above average variations. The Stem Center concluded that Plaintiff has a learning disorder that consists of information processing weaknesses specific to visual processing speed and auditory attention and memory systems, as well as weaknesses in phonological decoding/encoding, grammar, and some aspects of high level verbal reasoning. Plaintiffs auditory memory deficiency impairs her ability to retain auditory information for a sufficient time period to effectively process it. Notwithstanding her blindness,
5


Plaintiff is a visual learner who most effectively processes information by seeing it in a magnified version and having words and sentences highlighted through the use of color and spoken aloud by a synchronized voice. In combination, the Stem Center found the characteristics of Plaintiff s learning disorder significantly compromise her listening and reading comprehension, as well as the rate at which she reads and writes. Defendant does not challenge the accuracy of this diagnosis.
19. The court finds that the Stem Center has properly diagnosed and explained the nature and extent of Plaintiff s learning disorder and has identified accommodations that are both preferred and necessary for Plaintiff including the use of a computer with ZoomText Magnifier/Reader and Kurzweil 3000 screen reader so that Plaintiff may read and listen to written information simultaneously. The Stem Center evaluation also provides support for Plaintiff s other requested accommodations.
20. The MPRE 2011 Information Booklet states that all requests for accommodations are reviewed by qualified professionals.' The booklet lists the materials that must accompany each request for accommodations including the applicant's own written request for accommodations, and current documentation by the applicant's clinician, physician, or other professional with training and experience appropriate to diagnose and treat the applicant's disability. The documentation must include a brief statement of the professional's qualifications, detailed results from a complete, appropriate diagnostic examination, and an assessment of the functionality-limiting manifestations of the conditions for which accommodations are needed. The documentation must contain a detailed diagnosis, the treatment provided, and the last date of treatment or consultation. The professional must provide an explanation of the need for the requested accommodation and how the functional limitation of the disability relates to test-taking. All such documentation must reflect the current state of the applicant's disability. The applicant must also enclose documentation regarding accommodations that have been made in the past, especially with regard to other standardized exams.
21. For a cognitive disability such as a learning disability, the MPRE applicant must also submit a neuropsychological or psycho educational evaluation with reports of aptitude assessments using a comprehensive battery, a complete and comprehensive achievement battery including current level of academic functioning in relevant areas, scores from all subtests, an assessment of information processing using appropriate instruments, and other appropriate assessment measures. All tests must be reliable, valid, and standardized for use
] Defendant argues that it did not have time to obtain expert witnesses for the court's preliminary injunction hearing but did not call any of the qualified professionals who reviewed Plaintiffs Accommodations Request.
6


with an adult population and must be provided in standard score and percentile formats.
22. The visually impaired MPRE applicant who seeks accommodations based upon that disability must submit a report of a complete ocular examination relevant to the condition for which accommodations are sought. The examination report must include the current diagnosis (including whether the condition is progressive or stable), best corrected visual acuities for distances and near vision, all test results, a description of each functional limitation, a discussion of the extent to which the limitation has been or can be addressed through corrective devices, and a specific recommendation and rationale for accommodations. If a diagnosed condition is purported to affect reading speed, further test results are required. Documentation of visual disabilities is generally required to be current within one year.
23. Plaintiff first notified Defendant of her requested accommodations by letter dated June 16,2011 (the "Accommodations Request"), the same day she received Stephen Feltus's report. Plaintiffs five-page Accommodations Request included reports from Stephen Feltus, Geoffrey Howard, the Stem Center and Plaintiffs retinal specialist, Eliot L. Berson, M.D. of Harvard Medical School and the Massachusetts Eye & Ear Infirmary. There is no evidence that Plaintiffs submission was incomplete in any respect.
24. Plaintiffs Accommodations Request was filed in advance of the July 5, 2011 deadline for such requests. Had Plaintiff submitted her Accommodations Request in a piecemeal fashion, it would not have been addressed until her submission was complete. While Plaintiff could have submitted her Accommodations Request as early as November 2010,2 and was contemplating taking the August 5, 2011 exam as early as January of this year, she did not have the required documentation to pursue an accommodations request in January of2011. In the spring of2011, she acted diligently and in good faith to obtain the extensive materials necessary for her Accommodations Request. She then submitted those materials as soon as practicable after their receipt. Any delay was attributable to the difficulty of scheduling appointments around Plaintiffs law school and exam schedule, and in the preparation of the reports by the experts for submission.
25. Plaintiffs Accommodations Request sought the following accommodations: (a) the use of a Windows XP laptop computer equipped with ZoomText 9.12 and Kurzweil3000 v. 11.05 to read all examination materials; (b) an opportunity to test the laptop with sample MPRE questions in electronic format; © the use of identified peripheral devices with the laptop during the test; (d) a talking clock; (e) triple time for the examination with two 15-minute breaks; (f) a separate testing room; (g) a scribe to fill out administrative forms and answer sheets; (h) sundries,
2 Defendant has not established that its forty-eight page MPRE 2011 Information Booklet was available at that time.
7

including a black marker, scrap paper, and a magnifying glass; and (I) water and a snack for the six-hour-plus test.
26. By letter dated June 17, 2011 which was sent via e-mail and regular mail, Plaintiffs attorney contacted Defendant's attorney and asked Defendant to undertake an individualized inquiry with regard to Plaintiffs requested accommodations. Counsel noted that if Plaintiffs requests could not be accommodated, litigation would be required and thus counsel requested Defendant's response by the close of business on June 30, 2011. Defendant's counsel had been aware of Plaintiff s likely request for accommodations on the MPRE in early June. Defendant's counsel did not formally respond to the June 17th letter and to this date Defendant has not made a final decision with regard to Plaintiff s requested accommodations. At no time has Defendant requested that Plaintiff submit to an independent evaluation of her disabilities and the appropriate accommodations for them. Defendant does not claim that additional time may alter its position with regard to Plaintiff s requested accommodations. Instead, it has stated that it will consider them further.
27. On June 29,2011, Defendant, through the test administrator ACT, granted Plaintiffs request for the following accommodations: triple the time for the examination with two fifteen minute breaks; a separate testing room; a scribe to fill out administrative forms and answer sheets; and water and snack. Defendant further offered Plaintiff the following accommodations: the MPRE exam in Braille, as an audio CD, in enlarged print, the use of a CCTV, and the provision of a human reader. Defendant advised Plaintiff that the other accommodations she requested were not generally available on the MPRE, but that Defendant would like to work with Plaintiff to determine acceptable alternatives. Plaintiff responded that same day, noting that Defendant had been unspecific regarding the available alternative accommodations and asking what would be offered. Plaintiff asked that Defendant respond by the close of business. Defendant did not do so.
28. Bye-mail dated July 13,2011, Defendant offered Plaintiff the following additional accommodations: a marker, a talking clock, and scratch paper on which she could take notes. Defendant again offered to discuss Plaintiffs requested accommodations, but did not provide any indication that they would be granted now or in the future. Although Defendant generally offers the MPRE with either 18 point or 24 point font to accommodate requests for large print, Defendant is now willing to provide the MPRE to Plaintiff in 72 point font.' Defendant has identified no additional accommodations that it would be willing to offer Plaintiff.
29. Plaintiff is insufficiently proficient in Braille (which she first learned in 2007) to use it for a standardized test. She has never done so previously and does not use
3 This font produces a poster-size examination booklet which still cannot fit a single question on a single page.
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Braille as a routine method of reading. Were Plaintiff to take the MPRE in Braille, it would test her ability to decode Braille as opposed to her knowledge of a lawyer's professional responsibility obligations.
30. Plaintiff has used a CCTV for many years to access discrete pieces of written text such as recipes, invoices, and mail. She does not use a CCTV for lengthy reading. In law school, Plaintiff has used a CCTV in order to access Black's Law Dictionary. Although a CCTV provides Plaintiff with the desired magnification, it cannot display more than a small section of text and requires considerable motion in order to navigate through the text. If Plaintiff uses a CCTV over an extended period of time, she experiences eye fatigue and something akin to motion sickness. Because the visual field offered by a CCTV at the magnification required by plaintiff is so limited, a CCTV system is not an efficient or effective means for Plaintiff to scan, search, and read a document that is more than a couple of paragraphs. It also provides inadequate cues as to format, orientation, key words, and punctuation that Plaintiff needs to accommodate her learning disability.
31. Plaintiff has never been able to perform well on exams with a human reader as she has no context and does not have any way of determining where she is in the question and what she will need to do when the question is finished. Plaintiff needs to see the format of the question and be able to navigate through it herself, going back to phrases that she needs to re-read, in order to fully understand the text. Plaintiff has used digital audio and has found it cumbersome. She cannot read the tracks displayed on the equipment and finds that to re-access portions of the question is time consuming and confusing. Similarly, when Plaintiff uses a human reader, she loses the ability to freely and automatically navigate through text, because she has no visual reference which, in tum, impairs her ability to put what she is hearing into context, and decreases her ability to read and comprehend the material. Plaintiffs reliance on the visual presentation of text in order to discern context cannot be achieved through the use of a digital CD or a human reader. Even when used in conjunction with a magnified visual text, without highlighting, Plaintiff easily loses her place in the text and cannot navigate through it with either automaticity or fluidity.
32. Plaintiff filed her complaint and motion for preliminary injunction on July 1, 2011. Although Defendant has complained that the court scheduled the preliminary injunction motion hearing too quickly, Defendant had time to file a lengthy written opposition as well as a comprehensive twenty-six page motion for summary judgment with numerous exhibits and an accompanying 38-paragraph Statement of Undisputed Facts. Defendant has also filed a response to the U.S. Department of Justice's Statement ofInterest. The court finds that Defendant has had an adequate opportunity to prepare for and respond to the preliminary injunction motion.
9


33. Defendant has already adjusted at least one of the accommodations it offers the visually impaired. It has decided to no longer use a human voice on its audio CD finding a synthetic voice preferable. It has also accelerated the speed of the CD based upon feedback from visually impaired test takers. As noted, Defendant has offered screen access software to other takers of the MPRE and routinely offers computerized format exams on its non-secure tests. There is no question that Defendant is able to offer the accommodations that Plaintiff has requested.
34. Plaintiff s requested accommodations are supported by detailed expert opinions authored by individuals qualified to opine that such accommodations are necessary for Plaintiff to perform on a written examination commensurate with her abilities. With the exception of the Stem Center, Plaintiffs expert witnesses are her treating professionals. Plaintiff has expressed a legitimate concern that without her requested accommodations, the NIPRE will primarily test her ability to work through her disabilities and that she will not be able to compete on an equal basis with non-disabled test takers. Plaintiff s expert witnesses support this conclusion. Moreover, Plaintiffs experts have credibly collectively explained in detail why any other accommodation or combination of accommodations offered by Defendant would be inadequate.
35. Defendant proffered no evidence that any of the accommodations that it has offered to Plaintiff alone, or in combination, will allow Plaintiff to access the MPRE exam on an equal footing with her non-disabled peers. Indeed, Defendant has apparently undertaken no individualized analysis with regard to the accommodations that are reasonable for Plaintiffs disabilities, or that would best ensure that Plaintiff s aptitude rather than her ability to cope with her disabilities are measured by the MPRE.
36. Plaintiff seeks to take the MPRE exam on August 5, 2011 because she has paid for it, and set aside time this summer to study for it. She has also purchased sample questions and study guides. The November and March exam dates conflict with Plaintiffs law school schedule which requires her full concentration and time commitment. In order to properly prepare for the test during November and March, Plaintiff would have to readjust her class work load to allow sufficient time for studying and other preparation. This, in tum, may delay her graduation from law school and may impair her law school performance.
37. Plaintiff seeks to avoid having to take the MPRE in August of 20 12, approximately one month after she takes the Vermont Bar Exam as she will be unable to adequately prepare for both exams at the same time. In addition, if Plaintiff fails the MPRE exam in July of2011, she will not be able to take it again until November, almost six months after her expected graduation from law school.
38. Plaintiffs requested software may be loaded onto a lap top by a qualified person using a relatively simple process in approximately two hours and twenty minutes.
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Significantly less time is required if the Microsoft updates have already been performed. In that event, the programs may be loaded in approximately thirty minutes. Plaintiffs expert, Geoffrey Howard, estimates that the cost to Defendant to make Plaintiffs requested computer software accommodations is approximately $3,500.
39. Defendant estimates the cost it will incur to accommodate Plaintiffs computer software requests is approximately $5,000. Defendant further estimates the cost to accommodate similar requests on the same basis is approximately $300,000 per year although Defendant concedes that this estimate is simply based upon the multiplication of the estimated $5,000 by an anticipated sixty annual requests. According to Defendant's president, in addition to the expense, accommodation of Plaintiffs requests would be "a significant time demand and a distraction from what [Defendant's] staff would ordinarily be doing."
40. On the Form 990 which Defendant filed with the I.R.S. as an organization exempt from income tax, Defendant reported "program service revenue" in excess of $12 million dollars in 2008 and in excess of$13 million dollars in 2009. Defendant's "net assets or fund balances" were reported to be in excess of $45 million in 2008 and in excess of$50 million in 2009. Defendant has not filed a Form 990 for 2010.
41. Plaintiff is willing to post a bond or other security in an appropriate amount to compensate Defendant in the event Defendant is found to have been wrongfully enjoined.
42. On August 1,2011, Defendant advised the court that it needed a decision by noon on August 2, 2011 in order to comply with any court order requiring it to offer Plaintiffs requested accommodations for the August 5, 2011 MPRE.
II. Conclusions of Law and Analysis.
A. Standard of Review.
In Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008), the Supreme
Court articulated the standard for the issuance of a preliminary injunction:
A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.
Id. at 20 (citations omitted). The Second Circuit has described the standard as requiring a
party seeking a preliminary injunction to show "(a) irreparable harm and (b) either (1)
11


likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief." Jackson Dairy, Inc. v HP. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979). Recently, the Second Circuit ruled that the "serious questions" standard is still viable after Winter. See Citigroup Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30,38 (2d Cir. 2010).
Where, as here, a party seeks an injunction that is mandatory in nature in that it will alter rather than maintain the status quo, he or she must satisfy a more rigorous standard and demonstrate a "clear or substantial likelihood of success on the merits." Doninger v. Niehoff, 527 F.3d 41,47 (2d Cir. 2008); Rossini v. Republic ofArgentina, 2011 WL 2600404, at *2 (2d Cir. July 1,2011) (citing Citigroup Global Mkts., 598 F.3d at 35 n. 4).
B. The Requirements of the ADA.
Congress enacted the ADA "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12l0l(b)(l). In doing so, Congress recognized that "discrimination against individuals with disabilities persists in such critical areas as employment ... education .. . [and] communication" and that "the continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous, and costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity." 42 U.S.C. §§ 12101(a)(3), (a)(8).
The ADA requires Defendant, as an entity that offers a professional licensing examination, to "offer such examinations ... in a place and manner accessible to persons with disabilities or offer alternative accessible arrangements for such individuals." 42 U.S.C. § 12189. The regulations that implement this mandate provide that Defendant:
must ensure that the examination is selected and administered so as to best ensure that, when the examination is administered to an individual with a disability ... the examination results accurately reflect the individual's aptitude or achievement level ... rather than reflecting the individual's
12

impaired sensory, manual, or speaking skills (except where those skills are the factors that the examination purports to measure).
28 C.F.R. § 36.309(b)(1)(I) (emphasis supplied). The regulation further states: A private entity offering an examination covered by this section shall provide appropriate auxiliary aids for persons with impaired sensory, manual, or speaking skills, unless that entity can demonstrate that offering a particular auxiliary aid would fundamentally alter the measurement of the skills or knowledge the examination is intended to test or would result in an undue burden.
28 C.F.R. § 36.309(b)(3). The regulations state that the "[a]uxiliary aids and services required by this section may include ... Brailled or large print examinations and answer sheets or qualified readers for individuals with visual impairments[.]" 28 C.F.R. § 36.309(b)(3). The ADA provides that for "individuals with visual impairments," the term "auxiliary aids and services" includes "qualified readers, taped texts, or other effective methods ofmaking visually delivered materials available[.]" 42 U.S.c. § 12102(1)(B) (emphasis supplied). Defendant concedes that these lists of auxiliary aids are illustrative, not exhaustive.
Defendant neither claims that 28 C.F.R. § 36.309(b)(I)(I) which contains the "best ensures" standard is inapplicable, nor argues that it is arbitrary or capricious. Instead it contends that the only reasonable interpretation of the "best ensure" standard is to find that it employs the "reasonable accommodation" standard used in implementing the
Rehabilitation Act of 1973 and Title I of the ADA. Fink v. N r: City Dep 't ofPersonnel,
53 F.3d 565 (2d Cir. 1995), the Second Circuit case which Defendant cites as mandating this result, was decided under Section 504 of the Rehabilitation Act. Fink does not mention, let alone address, either the "accessibility" standard of 42 U.S.c. § 12189 or the "best ensure" standard of28 C.F.R. § 36.309(b)(1)(I). In Fink, the Second Circuit affirmed the district court's grant of summary judgment which addressed plaintiffs challenge not to the accommodations provided by the defendant "but to the matter in which two reader-assistants carried out their duties." Fink, 53 F.3d at 567. Noting that there was no allegation that the defendant was responsible for the readers' faulty
13


performance, the Second Circuit ruled that the district court had properly concluded that the "disturbances of which the plaintiffs complained were not the result of discrimination prohibited by the [ADA], but rather 'random occurrence which, by chance, adversely affect' disabled employees or candidates." Id. at 567-68. Fink noted that defendant demonstrated without contradiction that they made reasonable accommodations. In light of the absence of any discussion of either the meaning of "accessibility" or the proper interpretation of the "best ensures" standard, the court finds Fink does not control the court's determination of the very different legal challenges and factual issues presented here.
The U.S. Department of Justice has submitted a Statement of Interest, pursuant to 28 U.S.c. § 517 (Doc. 32), contending that Defendant is wrong in its choice of standards and that the "best ensure" standard indisputably governs this case and is not interchangeable with a "reasonable accommodation" standard. For the following reasons, the court agrees.
Both the ADA and its implementing regulations are designed to allow persons with disabilities to compete on an equal basis with non-disabled persons. In determining how this equality might best be achieved, Congress required entities offering licensing examinations to do so in a place and manner that is "accessible" to disabled persons or to offer "alternative accessible arrangements" for such individuals. See 42 U.S.C. § 12189. The term "accessible" is not defined and may mean accessible at any cost or burden, the best access available under the circumstances, what is "reasonably accessible" applying some form of balancing test, or accessible meaning capable of being accessed regardless if the accessibility offered is effective or meaningful. Each of these definitions is arguably reasonable without statutory guidance for determining "accessibility." The court thus finds 42 U.S.C. § 12189's use of the term "accessible" ambiguous in terms of what it requires.
"If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron US.A. Inc. v. Natural Res. De! Council, Inc., 467 U.S. 837, 842-43 (1984).
14


However, if congressional intent is unclear or ambiguous, then the court must decide whether "the agency's answer is based upon a permissible construction of the statute." Id. at 843. Where, as here, Congress has made an "express delegation of authority to the agency to elucidate a specific provision of the statute by regulation, such regulations are given "controlling weight unless they are arbitrary, capricious, or manifestly contrary to statute." Id. at 844.
This court, like several other courts," concludes that 28 C.F .R. § 36.309(b)(1 )(i) is neither arbitrary nor capricious, nor manifestly contrary to the statute it implements. The court thus concludes that a "best ensure" is entitled to controlling weight and governs the outcome in this case. A "best ensure" standard not only prevents an entity such as Defendant from directly or indirectly providing "a qualified individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit and to reach the same level of achievement as that provided to others[,]" 28 C.F.R. § 35. 130(b)(1), it also reflects the special challenges to the establishment of a level playing field in the administration of professional exams. Unlike in the employment sector where a "reasonable accommodation" may be adjusted over time, a professional examination is generally a one-time event wherein the accommodations either ensure equality or do not. Perhaps for that reason, the ADA's "reasonable accommodation" requirement under Title I was not used by Congress in enacting 42 U.S.C. § 12189 under Title III which requires "accessibility" in the offering of professional and licensing exams.'
4 The recent trend of authority supports a conclusion that the "best ensures" standard applies. See Enyart v. Nat 'I Conference ofBar Examiners, 630 F.3d 1153, 1163 (9th Cir. 2011) (applying a "best ensure" standard as the means of ensuring an individual with a disability has an equal opportunity to demonstrate her knowledge and abilities to the same degree as other non­ disabled individuals taking the MPRE); see also Bonnette v. Dist. ofColumbia Court ofAppeals, 2011 WL 2714896, at *19 (D.D.C. July 13,2011); Elder v. Nat 'I Conference ofBar Examiners, 2011 WL 672662, at *6 (N.D. Cal. Feb. 16,2011).
5 The "best ensure" standard was adopted from the Department of Education's requirements under Section 504 of the Rehabilitation Act governing admissions examinations in post-secondary institutions. 28 C.F.R. pt. 36, app. B at 715 (2009) (referring to 34 C.F.R. § 104.42(b)(3). Similarly, Section 12112(b)(7) of Title I of the ADA requires that tests
15


Having determined that Defendant must grant accommodations to Plaintiff that "best ensure" that her knowledge of the law governing a lawyer's ethical and professional obligations is tested by the MPRE rather than the extent to which Plaintiff is able to overcome her uncontested disabilities, the court turns to the question of whether Defendant's proposed accommodations are "reasonable accommodations" as a matter of law such that no further inquiry is warranted.
It cannot reasonably be disputed that what renders an examination "accessible" to one disabled individual may not render it "accessible" to another. Even Defendant concedes that Plaintiff has two disabilities that require accommodations. None of the "auxiliary aids" Defendant has offered Plaintiff to date fully or reasonably address her learning disorder. Rather than make an individualized inquiry regarding Plaintiffs needs, Defendant has taken the position that its menu of accommodations is "reasonable" even though the "menu" in question is designed only for the visually impaired. Although Defendant is correct in noting that neither Plaintiff s preferences nor her primary reading method need be accommodated, it remains an individualized inquiry, and not a one-size­ fits-all approach that drives the court's analysis.
Whether the standard is "reasonable accommodation" or "best ensures," what must take place is a "fact specific, individualized analysis of the disabled individual's circumstances." Wongv. Regents ofUniv. ofCal., 192 F.3d 807,818 (9th Cir. 1999); see also D'Amico v. NYS. Bd. ofLaw Examiners, 813 F. Supp. 217, 221 (W.D.N.Y. 1993) ("An individual analysis must be made with every request for accommodation[.]"). For this reason, the court rejects Defendant's invitation to decide the case based on what Congress, the U.S. Department of Justice, other courts, and advocacy groups for the blind have indicated are reasonable and appropriate in other cases for other individuals presenting different disabilities.
"concerning employment" be selected and administered "in the most effective manner to ensure" that the test reflects the disabledjob applicants' or employees' aptitude rather than their disabilities. The "best ensure" standardthus reflects the importance of an equal opportunity where an examination determines whether a disabled person will even be allowed to enter the playing field, much less compete effectively on it with his or her non-disabled peers.
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The court also rejects the Defendant's suggestion that the court adopt a Maryland district court's analysis in denying a request for injunctive relief for visually impaired applicants for the MPRE who sought to use screen access software. In Elder v. NCBE, No. 10-1418 (D. Md. 2010), Trs. at 73 (Mew Decl. Ex. 5), based upon what it characterized as an inadequate factual record, the court orally ruled that an accommodation that provides "reasonable accessibility," a term not used by Congress, satisfies the "best ensures" standard. It further found sufficient accommodations that "are historically sound, [and have] been accepted by [DOJ] in other ways; [and] which ... show that [Defendant] is acting entirely reasonably to make the examinations accessible." Id.; see also Elder v. National Conference ofBar Examiners, No. 1:10-cv-01419-JFN, Doc. No. 49 (D. Md. July 13,2010) (offering a one page written opinion to supplement the court's oral ruling and denying both NCBE's motion to dismiss and plaintiffs request for injunctive relief). The court has found no authority, and Defendant cites none, that would allow a "historically sound" accommodation that has been used by DOJ in other cases to determine the outcome of what accommodations comport with either the "best ensure" standard or a "reasonable accommodations" standard in Plaintiffs case.
In any event, even were the court to apply a "reasonable accommodations" standard to Plaintiff s request for injunctive relief in this case, a different outcome would not result. Under either standard, Defendant must offer Plaintiff an even playing field in accessing the MPRE. See Felix v. New York City Transit Authority, 324 F.3d 102, 107 (2d Cir. 2003) ("The ADA mandates reasonable accommodation of people with disabilities in order to put them on an even playing field with the non-disabled[.]") .
C. Whether a Preliminary Injunction Should be Granted. The court has already identified the requirements for the extraordinary remedy of a preliminary injunction. It now turns to whether Plaintiff has satisfied those exacting standards with regard to her requested accommodations on the August 5, 2011 NIPRE.
1. Irreparable Harm. Irreparable harm is "the single most important prerequisite for issuance of a preliminary injunction." Rodriguez ex rel. Rodriguez v. DeBuono, 175 F.3d 227,234 (2d
17


Cir. 1998) (quoting Bell & Howell: Mamiya Co. v. Masel Supply Co. Corp., 719 F.2d 42, 45 (2d Cir. 1983)). "To satisfy the irreparable harm requirement, [p]laintiff1 ] must demonstrate that absent a preliminary injunction [she] will suffer an injury that is neither remote nor speculative, but actual and imminent, and one that cannot be remedied if a court waits until the end of trial to resolve the harm." Grand River Enter. Six Nations, Ltd. v. Pryor, 481 F.3d 60, 66 (2d Cir. 2007) (internal quotation marks omitted).
In assessing the possibility of irreparable harm, courts "'must not adopt a categorical or general rule or presume that the plaintiff will suffer' such harm, but instead must actually consider the injury the plaintiff will suffer ifhe or she loses on the preliminary injunction but ultimately prevails on the merits, paying particular attention to whether the 'remedies available at law, such as monetary damages, are inadequate to compensate for that injury." Salinger v. Colting, 607 F.3d 68,80 (2d Cir. 2010) (quoting eBay, Inc. v MercExchange, L.L.c., 547 U.S. 388, 391, 393-94 (2006)).
In this case, Plaintiff will suffer irreparable hann if she is not allowed to take the August 5, 2011 MPRE exam with her requested accommodations because if she takes the test without them, her ability to work through her disabilities rather than her knowledge of the subject matter of the test will be the aptitude tested. In effect, Plaintiff will be required to take a "high stakes" examination in discriminatory circumstances.
In addition, to require Plaintiff to take the MPRE during the school year will interfere with her abilities to attend to her law school studies and perform to the best of her ability. This, in tum, may affect the employment opportunities available to Plaintiff as potential employers evaluate her law school performance,
Finally, Plaintiff credibly testified that she has already invested considerable time, money, and effort in studying and otherwise preparing for the August 5, 2011 MPRE. There is no dollar amount that the court may readily ascribe to either Plaintiff s expenditure of these efforts, or to the loss of their potential fruits in the form of a passing score on the MPRE. A passing score on the MPRE is a condition precedent to Plaintiff s ability to practice law in Vermont and every MPRE test she does not take is a lost opportunity to satisfy that requirement prior to her graduation.
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Although Defendant is correct in noting that mere delay in taking a professional entrance or licensing exam is generally not considered irreparable harm, here there is no evidence that time will make any significant difference with regard to the accommodations Defendant is willing to offer Plaintiff. In other words, Plaintiff is likely to face the same obstacles in November, March, and July that she is facing now. Accordingly, while Plaintiff is losing opportunities to take the MPRE, there is no countervailing benefit she obtains through the passage of time. Indeed, the passage of time is likely to exacerbate her harm as it may delay completion of her law school education and may delay her entry into her chosen professional field.
Defendant's assertion that Plaintiff could take the MPRE without her requested accommodations and still pass is not commensurate with a "best ensure" standard and is
inconsistent with the objectives of the ADA. See Bonnette, 2011 WL 2714896, at *19
(the fact that plaintiff "could take the [exam] using a human reader does not mean that this accommodation would best ensure that her score reflected her achievement level rather than her visual impairment; [plaintiff] is entitled to an auxiliary aid that allows her to perform at her achievement level, not just one that might be good enough for her to pass.").
In Enyart, Bonnette, and Elder, the courts all found that the plaintiffs established a likelihood of irreparable harm if they could not take the exam with the specific accommodations they sought. In Enyart, the court found a likelihood of irreparable harm in the form of "(1) the loss of the chance to engage in normal life activity, i.e., pursuing her chosen profession, and (2) professional stigma." Enyart, 630 F.3d at 1165. The plaintiff in that case also argued that she faced irreparable injury as a result ofNCBE's violation of the ADA; the court did not address this argument, finding that plaintiff demonstrated irreparable harm in the form of loss of opportunity to pursue her chosen profession.
In Bonnette, the plaintiff contended that she would either have to take the exam under discriminatory conditions or wait until a later administration while her claim is litigated, and any delay in taking the MBE deprived her of time to practice her chosen
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profession. The court held that further delay would be more irremediable, not less, and found it significant that plaintiff had devoted substantial time and effort to preparing for the exam which would be effectively wasted if she had to wait until a later date.
In Elder, the court articulated the choice confronting the plaintiff as either taking the exam under discriminatory conditions and risk failure and delay his ability to practice law, or postpone taking the exam until after a determination on the merits and likewise suffer a delay in his ability to practice law. Under either scenario, the court found that plaintiff would be likely to suffer irreparable harm. The Elder court also held that having plaintiff take the exam without a computer equipped with software would force him to take the exam under discriminatory circumstances, which would, in and of itself, cause
him irreparable harm. See Elder, 2011 WL 672662, at *10 (citing Chalk v. Us. Dist.
Court Cent. Dist., 840 F.2d 701 (9th Cir. 1988)). There, too, the court considered the investment of substantial time and money in preparing for the test as part of the irreparable harm analysis.
Almost two decades earlier, the D 'Amico court anticipated these grounds for finding irreparable harm:
While plaintiffs injury is related to her ability to be admitted to practice law and secure legal employment and income, it goes well beyond these monetary considerations. Plaintiffs injury is the result of ongoing discrimination based on her medical disability. The issuance of injunctive relief is appropriate when a disabled person loses the chance to engage in a normal life activity. But for plaintiffs disability and the Board's reluctance to allow her to take the exam over a four day period, she would have an equal opportunity to be admitted to the practice of law.
D'Amico, 813 F. Supp. at 220 (citations omitted); see also AgranojJv. Law School Admission Council, Inc., 97 F. Supp. 2d 86, 88 (D. Mass. 1999) (agreeing with plaintiff that he will suffer irreparable harm because he would lose the time and effort he had spent in a preparatory course and with a tutor, preparing for a particular administration of the LSAT, and that taking exam at later date would prejudice his applications at law schools); cf Maczaczyj v. State ofNY., 956 F. Supp. 403, 408 (W.D.N.Y. 1997) (applying D 'Amico to case where student was denied admission to master's program, as "[t]his
20


exclusion will most likely affect plaintiff s ability to engage in the future employment of his choice."); but see Christian v. NY. State Bd. ofLaw Exam 'rs, 1994 WL 62797, at *2 (S.D.N.Y. Feb. 23, 1994) (finding that plaintiff would not be irreparably harmed if application for injunctive relief was to be denied. Plaintiff suffered from undetermined problem, requested special accommodations, was already admitted to practice law in New Jersey, and court found that money damages could compensate plaintiff for loss of earnings and anguish because of the delay in taking the New York bar exam). The courts finds Enyart, Bonnette, Elder, and D 'Amico persuasive.
Because the court finds that an award of damages will not compensate Plaintiff for the lost opportunity to take the MPRE exam on August 5, 2011, and further finds that Plaintiff will suffer immediate, irreparable, and non-speculative harm in the loss of her preparatory and studying efforts, the time she incurred during the school year to amass the considerable documentation she needed for her requested accommodations, and the ensuing need to take the MPRE either during the school year with the attendant impact on her studies, or after she graduates with the attendant impact on her success on the bar exam, the court concludes that Plaintiff has sufficiently demonstrated irreparable harm to warrant preliminary injunctive relief.
2. Likelihood ofSuccess ofthe Merits. Plaintiff has also proffered evidence that establishes a clear and substantial likelihood that not only are her requested accommodations ones that will best ensure that her knowledge of professional ethics is properly tested, but they are also ones that are reasonable under the circumstances based upon an individualized inquiry. Plaintiffs experts collectively offered credible and persuasive testimony in support of Plaintiff s requested accommodations and fully explained why Defendant's proffered accommodations are inadequate. Plaintiff s primary and most effective means of accessing lengthy written material is achieved only through her use of screen access software that she has consistently and successfully used over the past eight years. Plaintiff has used each of Defendant's proposed accommodations and has demonstrated that they are not effective for her because they do not allow her to effectively and fluidly
21


access written material, and because they do not reasonably accommodate her dual disabilities.
Defendant, who does not dispute that Plaintiff has both a visual and learning disability, offered no countervailing evidence and has not even evaluated its own proposed accommodations for their reasonableness or efficacy in Plaintiff s case. In such circumstances, a court should give considerable weight to the opinions of Plaintiffs treating professionals who opine that the accommodations Plaintiff seeks are the only ones that will allow her to fully access the MPRE. See D'Amico, 813 F. Supp. at 223 ("[I]n a case where there is no medical evidence to the contrary, and the treating physician's opinion does not appear on its face to be outrageous, it is appropriate for the Court to give great weight to the physician's opinion as to the nature of the accommodations required for his patient.").
Defendant's further argument that because its proposed accommodations have worked for other visually impaired test takers (but not for ones who also suffer from Plaintiffs learning disorder), they may also work for Plaintiff and Plaintiff should be required to at least try them and fail before she is permitted to request anything different, is wholly inconsistent with the plain language and the underlying objectives of the ADA.
Defendant's alternative suggestion that Plaintiff should be confined to accommodations that she requested and were provided to her on the LSAT several years ago notwithstanding the progressive nature of Plaintiff s visual impairment and the fact that her learning disability was not the subject of accommodations is similarly without merit. "[A]ssistive technology is not frozen in time; as technology advances, testing accommodations should advance as well." Enyart, 630 F.3d at 1163. Indeed, the ADA fully contemplates that the accommodations which are required may change over time and must keep pace with technological developments. As the applicable legislative history reveals:
The Committee wishes to make it clear that technological advances can be expected to further enhance options for making meaningful and effective opportunities available to individuals with disabilities. Such advances may require public accommodations to provide auxiliary aids and services in the
22


future which today would not be required because they would be held to impose undue burdens on such entities.
Indeed the Committee intends that the types of accommodations and services provided to individuals with disabilities, under all of the titles of this bill, should keep pace with the rapidly changing technology of the times.
H.R. Rep. 101-485(11), at 108 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 391; see also 28 C.F .R. pt. 36, app. C (2011 ).6
Defendant's complaint that Plaintiff failed to engage in an interactive process to determine reasonable accommodations does not alter the court's conclusion that Plaintiff is likely to succeed on the merits. Here, both parties failed to engage in a meaningful discussion of anything other than what each was demanding. Neither more time nor more discussion is likely to alter the status quo. In fact, Defendant concedes that it does not actually need more time to evaluate Plaintiffs Accommodations Request because in the absence of a court order, it has no present intention to either send Plaintiff for an independent evaluation, or to offer any further accommodations.
Finally, the court concludes that Defendant has failed to establish its affirmative defense of either a fundamental alteration of what the MPRE tests or undue burden. Plaintiff s proposed accommodations do not in any way alter the content of the MPRE, only the manner in which it is presented. Defendant does not claim otherwise.
Defendant does, however, request the court to find that Defendant will encounter an undue burden by administering the MPRE to Plaintiff on August 5, 2011 with the requested accommodations. Although Defendant concedes that the burden in Plaintiffs case is relatively minor, offering the requested accommodations may engender other requests creating a significant expense and altering the way Defendant operates and
6 For this reason, the court concludes that Defendant's extensive evidence regarding accommodations that were deemed appropriate many years ago, or for different individuals with different needs, constitutes an inappropriate benchmark for what must be offered to render the MPRE "accessible" to Plaintiff. Indeed, Defendant's approach would activelydiscourage the development of technology and would not only freeze in time what may be considereda "reasonable accommodation" but would also dispense with any need for an individualized inquiry.
23


allocates its resources. Defendant cites no authority for the proposition that the court must consider whether the requested accommodations pose an undue burden in other, hypothetical cases in order to properly evaluate Defendant's burden in making an accommodation. Even if this were the standard, Defendant has proffered insufficient evidence to support its application to this case.
In light of Defendant's significant financial resources, its prior provision of the accommodations nearly identical to those Plaintiff has requested, and its ability to adequately address its concern that a visually impaired person such as Plaintiff may be able to copy or steal the NIPRE while being watched by a one-on-one proctor, the court concludes that Defendant has failed to establish an undue burden.
3. Balance ofthe Equities and the Public Interest. "[B]ecause a preliminary injunction is an exercise of equitable authority, a court considering such a motion should consider the balance of equities, including the public interest, involved." Olson v. Wing, 281 F. Supp. 2d 476,489 (E.D.N.Y. 2003) (citing Million Youth March, Inc. v. Safir, 155 F.3d 124, 125 (2d Cir. 1998)). Defendant strenuously argues that Plaintiff has created her own emergency by seeking injunctive relief in a carefully selected forum (where Plaintiff has lived for over twenty-two years) little more than a month prior to the MPRE exam and as part of a concerted effort to bring such lawsuits to appease "the animating force behind the lawsuit [which is] the National Federation of the Blind (the "NFB"), an advocacy group that aggressively supports 'high impact' litigation on behalf of its members." (Doc. 34 at 3). Not only has Defendant failed to introduce any evidence to support this allegation, it acknowledges, as it must, that Plaintiff filed her Accommodations Request weeks in advance of the deadline for doing so which Defendant itself set. If that deadline was unreasonable because of the complexity of Plaintiffs disabilities, Defendant has itself to blame. The court has found that Plaintiff acted diligently and in good faith to obtain and submit the comprehensive documentation necessary to support her Accommodations Request and that her request was made as soon as practicable after the receipt of those materials. Defendant, in tum, processed that request in a reasonably timely manner
24

although it demonstrated no urgency in handling Plaintiff's request. Moreover, although Defendant claims that it has been severely prejudiced by Plaintiff's delay, it does not identify anything that it would do with additional time other than to hire expert witnesses to defeat Plaintiff's claim. To this day, Defendant cannot state whether it will ever offer Plaintiff her requested accommodations. Instead, it has offered only to merely consider them.
Certainly the timing of Plaintiff's request for injunctive relief presents a legitimate inconvenience for Defendant (and for the court and presumably Plaintiff). Defendant has nonetheless advised the court that, if ordered, it can accommodate Plaintiff's request with the expenditure of approximately $5,000 and three and a half day's time. In such circumstances, the court cannot find that the balance of equities favors Defendant. To the contrary, any delay in the resolution of Plaintiff' s Accommodations Request with no countervailing benefit and considerable harm to Plaintiff tips the balance of equities decidedly in Plaintiff's favor.
Finally, the public interest compels the court to order accommodations that will best ensure a disabled person's access to a professional exam that will, in part, determine whether he or she may practice a chosen profession. "The ADA serves the important function of ensuring that people with disabilities are given the same opportunities and are able to enjoy the same benefits as other Americans." Felix, 324 F.2d at 107. The public's interest in the integrity of secure, professional licensing exams while important and legitimate does not trump the ADA.
ORDER
 For the foregoing reasons, the court hereby:
 1. GRANTS a preliminary injunction requiring Defendant to provide to Plaintiff the
following accommodations for the August 5, 2011 NIPRE exam in addition to those accommodations already granted by Defendant: (a) the use of a Windows XP laptop computer equipped with ZoomText 9.12 and Kurzweil3000 v. 11.05 to read all examination materials; (b) an opportunity to test the laptop with sample
25

MPRE questions in electronic format to ensure the equipment is functioning

properly; and (c) the use of peripheral devices with the laptop during the test

consisting of a Windows keyboard modified with white on a black background,

large lettering, and Braille finger placements, a 22-inch widescreen monitor

mounted on an adjusted arm, a corded mouse, and stereo speakers. With

Defendant's consent, Plaintiff may supply these peripheral devices for the MPRE

exam.

2. Pursuant to Fed. R. Civ. P. 65(c), Plaintiff shall place a bond or other

security in the amount of$5,000 in Plaintiffs counsel's escrow or trust account by

8:00 a.m. on August 5,2011 and provide certification of the same to the court.

The court finds this security sufficient to compensate the costs and damages

sustained by the Defendant, if any, in the event the Defendant is found to have

been wrongfully enjoined.

SO ORDERED.

~rL Dated at Rutland, in the District of Vermont, this

day of August, 2011.

Christina Reiss, Chief Judge United States District Court

26

 
 U.S. DISiRICT COURT

DISTRICT OF VERi10NT

I' c .. I

1,..

c~
••

r'>~'l

UNITED STATES DISTRICT COURT

7 AM 9 55

FOR THE

2011 SEP -

:

DEANNA 1. JONES,

DISTRICT OF VERMONT )

CLERl<
.QM
DfPUT Y CLERK

)

Plaintiff,

)

)

v.

) Case No. 5:11-cv-174

)

NATIONAL CONFERENCE OF

)


BAR EXAMINERS,

)


)


Defendant.

)


OPINION AND ORDER DENYING DEFENDANT'S
 MOTION FOR FURTHER MODIFICATION OF PRELIMINARY INJUNCTION

AND CONDITIONAL MOTION FOR A STAY
 (Doc. 51)

This matter comes before the court on Defendant's Motion to Modify Preliminary Injunction and Conditional Motion for a Stay (Doc. 51). The court previously granted, with Plaintiffs consent, Defendant's motion to modify the preliminary injunction to allow the use of software other than that designated in the preliminary injunction.
Pending before the court is Defendant's further request that it be allowed to withhold the official report of Plaintiffs score earned on the MPRE exam on August 5, 2011 as she will not "need" this score until she has successfully completed all other requirements for admission to the Vermont bar which Defendant anticipates will occur no sooner than fall of2012. Defendant proposes that it advise Plaintiff informally of her score so that she can schedule retesting if necessary. If the court determines that a modification of the preliminary judgment in the manner suggested by Defendant is not appropriate, Defendant asks that the court immediately stay that portion of the preliminary injunction that requires Defendant to release the official report as part of its

provision of testing services to Plaintiffl while Defendant pursues an interlocutory appeal. Defendant argues that either modification or a stay is warranted to deter other examinees from asking for the same accommodations granted Plaintiff which it characterizes as "giv[ing] the examinee whatever formats and accommodations they ask for unless you can disprove the examinee's subjective statements about what is best for them." (Doc. 51 at 2.) This, in tum, would place testing organizations in a "fundamentally untenable position," id., because they would be forced by the pressures of litigation to grant examinees whatever accommodations they requested.
Plaintiff opposes both Defendant's further motion to modify and to stay, arguing that in essence Defendant seeks permission to treat Plaintiff differently from her non­ disabled peers. In addition, Plaintiff argues that Defendant made all the same arguments to the court which, in any event, did not adopt a "whatever the examinee wants" standard in issuing the preliminary injunction.
As Plaintiff correctly points out, a court must examine a request for modification with an eye to determining whether it "effectuates or thwarts the purpose behind the
injunction." See Sierra Club v. us. Army Corps ofEngineers, 732 F.2d 253,257 (2d
Cir. 1984). Here, the requested modification would thwart the purpose of the injunction which is to allow Plaintiff the opportunity to take the MPRE on an even playing field with the non-disabled. This will not occur if Defendant is permitted to withhold Plaintiffs score until some uncertain date in the future. Defendant's motion for further modifications to the court's preliminary injunction is therefore DENIED.
With regard to Defendant's request for a conditional stay, [t]o determine whether a stay of an order pending appeal is appropriate, a court must evaluate the following factors: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the.public interest lies.
1 Defendant asks the court to make this requirement explicit in the preliminary injunction and then stay it.
2


Rodriguez v. DeBuono, 175 F.3d 227,234 (2d Cir. 1999). Defendant, as the moving party, bears the burden of demonstrating that a stay is
warranted. As Plaintiff correctly points out, Defendant eschews any argument that it is likely to succeed on the merits of the appeal or that a stay is in the interest of the public. As to harm it will suffer in this case if a stay is not granted, Defendant does not claim that recovery of the cost of the accommodations it provided to Plaintiff and nullification of Plaintiffs MPRE score will be insufficient. Instead, it speculates that other examinees will want similar accommodations because of the court's preliminary injunction-harms that will allegedly exist whether or not the official MPRE score is released to Plaintiff. Having failed to establish that a stay is warranted in this case, Defendant's conditional motion must also be DENIED. SO ORDERED.
Dated at Rutland, in the District of Vermont, this '7~ay of September, 2011.
Chri~
United States District Court
3

 
 Case 5:11-cv-00174-cr Document 62 Filed 12/29/11 Page 1 of 14

DEANNA L. JONES,

UNITED STATES DISTRICT COUR FOR THE
DISTRICT OF VERMONT

U. S. DISTRICT COURT
DISTRICT OF VERMONT
\l. I F!LO::D ~~
BY -J.ct-\\
DEPUTY CLERK

Plaintiff,

v.
NATIONAL CONFERENCE OF BAR EXAMINERS,

Civil Action Docket No. 5:11-CV-00174-CR

Defendant.

AMENDED COMPLAINT

INTRODUCTION

1. PlaintiffDeanna L. Jones brings this action against the National Conference of

Bar Examiners ("NCBE"), which owns, develops, and offers the Multistate Professional

Responsibility Examination ("MPRE"), the Multistate Performance Test ("MPT"), and the

Multistate Bar Examination ("MBE"). Plaintiffbrings this action for violations of the

Americans with Disabilities Act of 1990, as amended ("ADA"), 42 U.S.C. § 12101, et seq.

2. The Vermont Board of Bar Examiners ("VBBE") requires applicants for

admission to the bar successfully pass the MPRE and the Vermont Bar Examination, unless

they are attorneys licensed in other jurisdictions who possess the qualifications for admission

by motion. The Vermont Bar Exam consists of (1) the MBE, a 200-item, six-hour multiple

choice test, (2) the MPT, a two-question, three-hour essay test, and (3) the Vermont Essay

Exam, a four-question, four-hour essay test.

J_. ANGROCK Sr•J,:tutY & Woor. LLP

3. The MPRE, MPT, and MBE are developed, owned, and disseminated by NCBE. NCBE contracts with ACT, Inc. ("ACT") to administer the MPRE three times annually, as

Case 5:11-cv-00174-cr Document 62 Filed 12/29/11 Page 2 of 14

well as to evaluate requests for accommodations on the MPRE. VBBE administers the

Vermont Bar Exam twice each year, in July and February. VBBE contracts with NCBE to

use the MBE and MPT as parts of the Vermont Bar Exam, and conducts its own evaluation of

requests for accommodations from examinees.

4. Ms. Jones is a legally blind and learning-disabled law school student who

registered to take the August 2011 MPRE and is in the process of seeking accommodations

for the July 2012 Vermont Bar Exam. To accommodate her disabilities on the MPRE, Ms.

Jones timely asked ACT, NCBE, and VBBE to allow her to take the required examinations on

a computer equipped with Kurzweil3000 ("K3000") and ZoomText screen access software.

, Screen access software programs, also called "screen readers," magnify and/or vocalize text,

offer a variety of features that allow easy navigation within a text, and enable the speed,

volume and timbre of vocalization to be controlled by the user for maximum comprehension

and retentive effect. For blind individuals who have not mastered braille, screen access

software is the principal method for gaining access to textual information. Ms. Jones uses

these auxiliary aids in combination as her primary reading method. She has taken all her law

school exams, and completed all her law school reading assignments, using K3000 and

ZoomText in combination.

5. On or about June 17, 2011, Ms. Jones applied to take the August 2011

administration of the MPRE and requested that ACT and NCBE accommodate her blindness

and learning disability by permitting her to use K3000 and ZoomText screen access software

on the test. Absent a court order, ACT and NCBE refused to allow Ms. Jones to take the

I ..ANGROC:'K SPERRY & WooL LLP

MPRE on a computer equipped with K3000 and ZoomText, and other auxiliary aids, for the August 2011 administration.

2

Case 5:11-cv-00174-cr Document 62 Filed 12/29/11 Page 3 of 14

6. Ms. Jones filed suit and sought a preliminary injunction requiring ACT and

NCBE to permit her to take the MPRE using K3000 and ZoomText. ACT was subsequently

dismissed from the lawsuit, having agreed to obey any injunction addressed to NCBE. On

August 2, 2011, Ms. Jones was granted a preliminary injunction requiring NCBE to provide

the MPRE to her with K3000 and ZoomText as accommodations. Ms. Jones then took and

passed the examination. NCBE has appealed the court's order granting the preliminary

injunction.

7. On or about September 7, 2011, Ms. Jones applied to take the July 2012

administration of the Vermont Bar Exam. She requested that VBBE accommodate her

blindness and learning disability by permitting her to take the Vermont Bar Exam using

K3000 and ZoomText screen access software, as well as Microsoft Word.

8. On or about December 15, 2011, VBBE advised Ms. Jones that it granted all of

her requested accommodations for the July administration ofthe MBE.

9. On or about December 19,2011, VBBE notified NCBE of its determination

that "the requested accommodation is reasonable and that the use of a computer with the

[K3000, ZoomText, and Microsoft Word] is necessary to make all portions of the bar exam

accessible to Ms. Jones." VBBE requested that NCBE provide a computer loaded with an

electronic copy of the MBE, Microsoft Word, ZoomText, and K3000. Without waiving its

right to contest the charge, VBBE agreed to pay what it understood to be the $5,000 fee that

NCBE charges states for providing the MBE in electronic format. Ms. Jones is now in the

process of submitting the materials NCBE requires for applicants seeking accommodations on

LANGROCK SPERRY
& WooL LLP

the MBE. 10.

Typically, NCBE does not make the MBE available in an electronic format

3

Case 5:11-cv-00174-cr Document 62 Filed 12/29/11 Page 4 of 14

absent a court order. In light ofNCBE's pending appeal, the parties filed a stipulation to

partial stay on September 8, 2011. In this stipulation, NCBE agreed that if, prior to May 1,

2012, its appeal either has not been decided or Ms. Jones has prevailed, it would stipulate to a

preliminary injunction permitting her to take the MBE in July 2012 on a laptop equipped with

K3000 v. 11.05 (or later version), ZoomText v. 9.19.1.33 (or later version), and Microsoft

Word 2003 (or later version). In the event that NCBE prevails on appeal, the parties agreed to

an expedited hearing on any issues remaining after appeal, as well as on any motion for

preliminary injunction filed by Ms. Jones regarding the July 2012 MBE.

11. NCBE's refusal to allow Ms. Jones her requested accommodations absent a

court order violates her rights under the ADA and threatens her with irreparable harm to her

career, to her professional development, and to her right to take the MPRE and MBE without

being subjected to unlawful discrimination and the stigma and humiliation that result from

such discrimination. Without injunctive relief from the Court, Ms. Jones could only take the

MPRE and MBE at a competitive disadvantage to her peers that would unlawfully burden her

attempt to obtain her license to practice law. Ms. Jones has no adequate remedy at law.

12. Ms. Jones seeks declaratory and injunctive relief to compel NCBE to provide

the MPRE and MBE in a format that allows her to use her primary reading method, to wit, in

electronic format on a computer equipped with K3000 and ZoomText screen access software.

Provision of the exams in this format is necessary to best ensure that Ms. Jones' results on the

MPRE and MBE will accurately reflect her knowledge and understanding of established

standards related to a lawyer's professional conduct rather than reflect her sensory disability.

LANGHOCK SPERRY
& WOOL LLP

The alternative accommodations that NCBE routinely offer, such as an audio CD or a human reader, are insufficient in that they would deny Ms. Jones the opportunity to compete on an

4

Case 5:11-cv-00174-cr Document 62 Filed 12/29/11 Page 5 of 14

equal basis.

JURISDICTION

13. This is an action for declaratory and injunctive reliefbrought pursuant to the

Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. This Court has subject matter

jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1343.

14. This Court has jurisdiction to issue injunctive relief and a declaratory judgment

pursuant to 28 U.S.C. §§ 2201 and 2202.

VENUE

15. Pursuant to 28 U.S.C. §§ 1391(b)(2) and 1391(c), venue is proper in the

District in which this Complaint is filed because NCBE's discriminatory conduct is taking

place within Vermont and because the events and omissions giving rise to this claim have

occurred and are occurring within Vermont.

PARTIES

16. Plaintiff Deanna L. Jones, a resident of Middlesex, Vermont, is a student in her

fourth and final year of the J.D. program at Vermont Law School. Like many of her peers,

Ms. Jones planned to take the MPRE in August 2011, which allowed her to prepare for the

exam without neglecting her school work during the semester or her preparation for the

Vermont Bar Exam, which she plans to take in July 2012. Ms. Jones has been legally blind

since she was five years old. Her blindness is caused by atypical retinitis pigmentosa with

macular degeneration. This condition causes a degeneration of central vision, coupled with

the loss of peripheral vision and night vision, and will eventually result in total blindness.

.LANGROCK SPERHY
& WooL LLP

Ms. Jones has also been diagnosed with a learning disability that significantly compromises the rate at which she reads and writes. She faces irreparable harm because NCBE refuses to

5

Case 5:11-cv-00174-cr Document 62 Filed 12/29/11 Page 6 of 14

administer the MPRE and the MBE in a manner that will ensure that the results accurately

reflect her aptitude and achievement level rather than her disability. Passing the MPRE and

MBE is a requirement to secure a license to practice law in Vermont for anyone who, like Ms.

Jones, is not licensed elsewhere.

17. Defendant National Conference of Bar Examiners is a multimillion-dollar

corporation that owns, develops, and controls various tests relating to the licensing of law

school students and graduates seeking admission to the bar. Its mission includes assisting bar

admission authorities by providing standardized examinations for the testing of applicants for

admission to the practice of law. NCBE is headquartered in Madison, Wisconsin, but offers

the MPRE and MBE in most jurisdictions, including Vermont. NCBE determines the formats

(print, braille, electronic document, etc.) in which the MPRE and MBE are offered and the

accommodations that are available to examinees with disabilities. NCBE currently offers two

examinations in electronic format to examinees with disabilities, the MPT and the Multistate

Essay Examination, but it will not provide the MPRE or MBE in an electronic format absent a

court order.

FACTUAL ALLEGATIONS

18. Plaintiff Deanna L. Jones has been legally blind since she was five years old.

She is blind as a result of atypical retinitis pigmentosa with macular degeneration. Because of

this condition, Ms. Jones cannot read standard print. She retains some residual vision, which

enables her to see greatly magnified text, but cannot read enlarged text for a sustained period

without suffering motion sickness and eye fatigue.

"l,i\NC~R()(_-;K SPEH.RY
& Woor LLP

19. In 2000, Ms. Jones first had a learning evaluation, which led her clinician to conclude that she has a learning disability. This diagnosis was confirmed in March 2011.

6

Case 5:11-cv-00174-cr Document 62 Filed 12/29/11 Page 7 of 14

Due to her learning disability, Ms. Jones has information processing weaknesses specific to

visual processing speed and auditory attention and memory systems, as well as weaknesses in

phonological decoding/encoding, grammar, and some aspects of higher level verbal

reasoning. In combination, the characteristics of her learning disability significantly

compromise her listening comprehension and reading comprehension, as well as the rate at

which she reads and writes.

20. Since 2003, Ms. Jones has used the screen access software Kurzweil3000 and

ZoomText in combination to perform all academic and complex reading tasks. She developed

this primary reading method in consultation with an assistive technology specialist, on the

recommendation of her clinicians. K3000 reads aloud the text of an electronic document

while highlighting the word and paragraph of text being read. While K3000 vocalizes the

text, Ms. Jones uses ZoomText to magnify the text display onscreen to understand

organizational elements, locate specific phrases or words she needs to repeat, and to place the

: text in a visual context. This reading method enables Ms. Jones to read fluently,

independently and with automaticity, much as a sighted person reads print.

21. Ms. Jones completed one year of undergraduate education at Kutztown

University in Kutztown, Pennsylvania. But she left this program in 1986 because her then-

undiagnosed auditory memory deficiency, coupled with her blindness, made reading and

retaining printed text too difficult to keep up in an academic program.

22. In 2003, after Ms. Jones was armed with assistive technology that made

printed text accessible to her, Ms. Jones began her undergraduate studies at Vermont College

l~ANGHOCK SPE.H.H''t
& WoOL LLP

of Union Institute & University. In college, Ms. Jones used her primary reading method, K3000 together with ZoomText, to complete all reading assignment and papers required by

7

Case 5:11-cv-00174-cr Document 62 Filed 12/29/11 Page 8 of 14

the curriculum. The program did not require students to take examinations. Ms. Jones

obtained her Bachelor of Arts degree in April 2007.

23. In 2008, Ms. Jones entered Vermont Law School. At Vermont Law School,

Ms. Jones uses her primary reading method, K3000 and ZoomText, to take all examinations

and complete all reading assignments. She is also permitted to take timed examinations with

triple time and breaks every four hours. To date, Ms. Jones has completed 63 out of the

required 87 semester hours, has a cumulative grade point average of 3.208, and is on schedule

to graduate in May 2012.

24. Ms. Jones' rudimentary ability to read Braille materials falls far short of the

Braille skills necessary to read complex legal materials, much less take an examination that

tests her legal knowledge. She has also never used an audio CD to take an examination. Ms.

Jones' experience with a human reader on the LSAT established that a human reader provides

her with a reading facility substantially inferior to that which she can achieve with K3000 and

ZoomText.

25. Using a human reader or audio CD to read the complex passages of text that

comprise the MPRE would significantly decrease Ms. Jones' ability to read and comprehend

that material. Those accommodations would not have the visual input that she requires to

comprehend complex material and would not provide her with the automaticity, independent

ability to navigate a document, controlled reading speed, visual context, and reading fluency

that she relies upon when using K3000 and ZoomText.

26. On or about June 17, 2011, Ms. Jones timely submitted to ACT a request for

l,ANGROCK SPERHY
& WoOL LLP

accommodations for the August 2011 administration of the MPRE. Among other accommodations, Ms. Jones requested the use of a computer equipped with K3000 and

8

Case 5:11-cv-00174-cr Document 62 Filed 12/29/11 Page 9 of 14

ZoomText screen access software to take the MPRE. Ms. Jones submitted all required

documentation supporting her need for these accommodations.

27. On or about June 17, 2011, counsel for Ms. Jones, knowing that NCBE does

not authorize ACT to make the MPRE available in an electronic format, inquired of counsel

for NCBE whether it would undertake an individualized inquiry regarding the suitability of

the accommodations requested by Ms. Jones, or whether NCBE planned to deny Ms. Jones'

requested accommodations for the MPRE, following its established practice of denying

requests to take the test with screen access software. On June 20, counsel for NCBE

responded, and would not agree that NCBE would undertake an individualized inquiry as to

Ms. Jones' accommodations request. Instead, NCBE's counsel indicated that ACT would

handle Ms. Jones' request for accommodations. On June 27, 2011, counsel for Ms. Jones

inquired of counsel for NCBE whether NCBE would authorize ACT to make available the

accommodations Ms. Jones has requested. Counsel for NCBE replied that NCBE would not
1
involve itself in ACT's response to Ms. Jones' request for accommodations.

28. On June 29,2011, ACT denied Ms. Jones' request to take the MPRE on a

computer equipped with K3000 and ZoomText and suggested that she consider unspecified

alternative accommodations. Ms. Jones promptly replied, explaining that the alternatives that

ACT routinely offers- Braille, magnified print, CCTV, human reader and audio CD- would

not adequately address her disabilities, but that if ACT was proposing any other

accommodations to respond before the close ofbusiness on June 30, 2011.

29. Ms. Jones filed suit and sought a preliminary injunction requiring ACT and

LANGROCK SPLRRY
& \VOOL LI.P

NCBE to permit her to take the MPRE using K3000 and ZoomText. ACT was subsequently dismissed from the lawsuit, having agreed to obey any injunction addressed to NCBE. On

9

Case 5:11-cv-00174-cr Document 62 Filed 12/29/11 Page 10 of 14

August 2, 2011, Ms. Jones was granted a preliminary injunction requiring NCBE to provide

the MPRE to her with K3000 and ZoomText as accommodations. Ms. Jones then took and

passed the examination. NCBE has appealed the court's order granting the preliminary

injunction.

30. On or about September 7, 2011, Ms. Jones timely submitted a request for

accommodations on the July 2012 administration of the Vermont Bar Exam to VBBE. She

supplemented her application with supporting documentation from Vermont Law School and

her treating professionals.

31. Ms. Jones requested to use a laptop computer equipped with WindowsXP,

Word 2003 or later, ZoomText 9.19.1.33 Magnifier/Reader or later, and Kurzweil3000 v.

11.05 or later, and various laptop peripherals. She also requested the opportunity to test the

laptop with sample questions prior to the exam to ensure it is configured and functioning

properly.

32. On or about December 15, 2011, VBBE granted all of the accommodations

that Ms. Jones requested for the July administration of the MBE. It advised that it would

inform NCBE of its determination that the use of a laptop with the requested software is a

reasonable accommodation and necessary in order to make the Vermont Bar Examination

accessible to Ms. Jones. Although it agreed to request an electronic copy of the MBE from

the NCBE, it noted that the MBE is not currently available in an electronic format.

33. On or about December 19,2011, VBBE notified NCBE of its determination

that Ms. Jones's requested accommodations were reasonable and "that the use of a computer

l ..ANG RC>CK SPERRY
& WnoL LLP

with [K3000, ZoomText, and Microsoft Word] is necessary to make all portions of the bar exam accessible to Ms. Jones." VBBE requested NCBE provide a computer loaded with an

10

Case 5:11-cv-00174-cr Document 62 Filed 12/29/11 Page 11 of 14

electronic version of the MBE questions, Microsoft Word, ZoomText, and K3000. It also

requested sample question so that the software can be tested prior to the exam. As it

understood NCBE charges jurisdictions $5,000 to provide this accommodation, without

waiving any rights as to the propriety of the charge, VBBE agreed to pay the $5,000 fee.

34. NCBE typically does not make the MBE available in an electronic format

absent a court order. In light ofNCBE's pending appeal, the parties filed a stipulation to

partial stay on September 8, 2011. In this stipulation, NCBE agreed that if, prior to May 1,

2012, its appeal either has not been decided or Ms. Jones has prevailed, it would stipulate to a

preliminary injunction permitting her to take the MBE in July 2012 on a laptop equipped with

K3000 v. 11.05 (or later version), ZoomText v. 9.19.1.33 (or later version), and Microsoft

Word 2003 (or later version). In the event that NCBE prevails on appeal, the parties agreed to

an expedited hearing on any issues remaining after appeal, as well as on any motion for

preliminary injunction filed by Ms. Jones regarding the July 2012 MBE.

35. Ms. Jones is and will continue to be significantly harmed by NCBE's refusal to

offer her the MPRE and MBE so as to best ensure that the test results reflect that which the

test is designed to measure rather than Ms. Jones' visual impairment and learning disability.

FIRST CAUSE OF ACTION

VIOLATION OF THE ADA

Plaintiff re-alleges and incorporates herein all previously alleged paragraphs of the

complaint.

36. The term "disability" includes, with respect to an individual, a physical or

I~ANGROCK SJ-'EH.f.~.Y
& WOOl LLP

mental impairment that substantially limits one or more ofthe major life activities of such individual. 42 U.S.C. § 12102(2)(A). Plaintiff Deanna L. Jones is an individual with a

11

Case 5:11-cv-00174-cr Document 62 Filed 12/29/11 Page 12 of 14

disability within the meaning of 42 U.S.C. § 12102(2) and 28 C.P.R.§§ 35.104 and 36.104.

37. The ADA prohibits discrimination by private entities, including those that offer

professional licensing examinations, such as NCBE.

38. The ADA requires private entities that offer standardized examinations

"related to ... applications, licensing, certification, or credentialing for ... postsecondary

education [or] professional ... purposes" to do so in a "place and manner accessible to

persons with disabilities or offer alternative accessible arrangements for such individuals." 42

U.S.C. § 12189; 28 C.P.R. §36.309(a). NCBE is such an entity and the MPRE and MBE are

examinations subject to this statute and regulation.

39. The regulation implementing this section of the ADA provides, inter alia, that

a private entity that offers such examinations

must assure that ... [t]he examination is selected and administered so as to best ensure that, when the examination is administered to an individual with a disability that impairs sensory, manual, or speaking skills, the examination results accurately reflect the individual's aptitude or achievement level or whatever other factor the examination purports to measure, rather than reflecting the individual's impaired sensory, manual, or speaking skills ....

28 C.P.R.§ 36.309(b)(1)(i).

40. The ADA regulations covering examinations such as the MPRE and MBE

require, inter alia, "adaptation of the manner in which the examination is given." 28 C.P.R.

§ 36.309(b)(2). The entity offering the examination must, among other things, "provide

appropriate auxiliary aids" unless the entity "can demonstrate that offering a particular

auxiliary aid would fundamentally alter the measurement of the skills or knowledge the

I_.ANGROCK SPJ:.RltY
& WooL LLI'

examination is intended to test or would result in an undue burden." 28 C.P.R. § 36.309(b)(3).

12

Case 5:11-cv-00174-cr Document 62 Filed 12/29/11 Page 13 of 14

41. Unless Ms. Jones takes the MPRE and MBE in an electronic format with

Kurzweil 3000 and ZoomText screen access software, her results will not accurately reflect

what the examination purports to measure, but will instead reflect her impaired sensory and

processing skills.

42. NCBE's conduct constitutes an ongoing and continuous violation of the ADA

and its supporting regulations. Unless restrained from doing so, NCBE will continue to

violate the ADA. Unless enjoined, NCBE's conduct will continue to inflict injuries for which

Plaintiffhas no adequate remedy at law.

43. Unless the requested relief is granted, Ms. Jones will suffer irreparable harm in

that she will be discriminated against and denied equal access to the MPRE and MBE, and be

unlawfully burdened in seeking admission to the legal profession in Vermont.

44. The ADA authorizes injunctive relief as appropriate to remedy acts of

discrimination against persons with disabilities. 42 U.S.C. § 12188(a)(1).

45. Ms. Jones is entitled to injunctive relief, as well as reasonable attorney's fees

and costs.

WHEREFORE, Plaintiff request relief as set forth below.

RELIEF REQUESTED

Plaintiff prays for judgment as follows:

1. A declaration that Ms. Jones is entitled to take the MPRE and MBE using a

computer equipped with screen access software and that NCBE, by denying this

accommodation, offers the MPRE and MBE in a manner that discriminates against Ms. Jones

l ..ANGROCK St'ElZH.l" & WooL LLP

as a person with a disability; 2. Preliminary and final injunctive relief requiring NCBE to provide Ms. Jones

13

Case 5:11-cv-00174-cr Document 62 Filed 12/29/11 Page 14 of 14

the opportunity to take the August 2011 administration of the MPRE and the July 2012

administration of the MBE in an electronic format on a computer equipped with Kurzweil

3000 and ZoomText screen access software, as she has requested and to which she is entitled;

3. An award of Plaintiffs reasonable attorneys' fees and costs; and

4. Such other and further relief as the Court deems just and proper.

this~ Dated at Middlebury, Vermont,

of December, 2011.

LANGROCK SPERRY & WOOL, LLP
1\

562215
I_.. /\.NGROCK SP:f:H}:{Y
& WOOL LLP

P.O. Drawer 351 Middlebury, T 05753-0351 Ph: (802) 388-6356 Fx: (802) 388-6149
Daniel F. Goldstein Trevor H. Coe BROWN, GOLDSTEIN & LEVY, LLP 120 E. Baltimore Street, Suite 1700 Baltimore, MD 21202 Ph: (410) 962-1030 Fx: (410) 385-0869 Scott C. LaBarre LABARRE LAW OFFICES, P .C. 1660 S. Albion Street, Suite 918 Denver, CO 80222 Ph: (303) 504-5979 Fx: (303) 757-3640
Attorneys for Plaintiff Deanna L. Jones
14

 
 Case 5:11-cv-00174-cr Document 66 Filed 05/17/12 Page 1 of 3
MANDATE 11-3355-cv Jones v. NCBE
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 26th day of April, two thousand twelve.

Present:

JOHN M. WALKER, JR.,

PIERRE N. LEVAL,

ROSEMARY S. POOLER,

Circuit Judges.

_____________________________________________________

DEANNA L. JONES,

Plaintiff-Appellee,

-v.-

11-3355-cv

NATIONAL CONFERENCE OF BAR EXAMINERS,

Defendant-Appellant,

ACT, INCORPORATED,

Defendant.

Appearing for Appellant National Conference of Bar Examiners:
Robert A. Burgoyne, Fulbright & Jaworski L.L.P. (Caroline M. Mew, on the brief; Karen McAndrew, Dinse, Knapp & McAndrew, P.C., Burlington, Vt., on the brief), Washington, D.C.

MANDATE ISSUED ON 05/17/2012

Case 5:11-cv-00174-cr Document 66 Filed 05/17/12 Page 2 of 3
Appearing for Appellee Deanna L. Jones:
Daniel F. Goldstein, Brown, Goldstein & Levy, LLP (Trevor H. Coe, on the brief; Emily J. Joselson, Michele B. Patton, Langrock Sperry & Wook, LLP, Middlebury, Vt., on the brief; Scott C. LaBarre, LaBarre Law Offices, P.C., Denver, Colo., on the brief), Baltimore, Md.
Appearing for Amicus Curiae the United States:
Nikolas P. Kerest, Assistant United States Attorney for the District of Vermont (Tristram J. Coffin, United States Attorney, Carol L. Shea, Chief of Civil Division, on the brief; Thomas E. Perez, Assistant Attorney General, Jessica Dunsay Silver, Thomas E. Chandler, United States Department of Justice, Civil Rights Division, Appellate Section, Washington, D.C., on the brief), Burlington, Vt.
Appeal from a judgment of the United States District Court for the District of Vermont (Reiss, C. J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the appeal from the judgment of said District Court be and it hereby is DISMISSED AS MOOT and REMANDED for further proceedings.
Defendant National Conference of Bar Examiners (“NCBE”) appeals from the order of the district court granting a preliminary injunction to plaintiff Deanna L. Jones. We assume the parties’ familiarity with the facts, procedural history, and specification of issues for review. As the facts of the dispute have developed, however, nothing is at stake in the appeal from the preliminary injunction order. We therefore dismiss the appeal as moot and remand the case to the district court for further proceedings. See Univ. of Texas v. Camenisch, 451 U.S. 390, 398 (1981) (holding appeal of preliminary injunction moot where “the terms of the injunction . . . ha[d] been fully and irrevocably carried out”).
NCBE argues that the appeal is not moot because we have the power, “on appeal from an interlocutory order [granting a preliminary injunction, to] examine the merits of the case,” and we may dismiss the entire action. Munaf v. Geren, 553 U.S. 674, 691-92 (2008). This argument is unavailing. The fundamental rule in the federal courts is that appellate courts review only the final judgments of lower courts. An exception is made for the grant or denial of a preliminary injunction to “prevent the injustice of burdening a party with a manifestly erroneous decree while the ultimate merits of a dispute are being litigated.” See Independence Party of Richmond Cty. v. Graham, 413 F.3d 252, 256 (2d Cir. 2005). That justification no longer applies where, as here, the preliminary injunctive order has already been irrevocably executed because the appellate court can no longer relieve the appellant of temporary burdens imposed by the preliminary injunction. In those circumstances, the rule that we review only final judgments of the lower courts continues to apply.
2

Case 5:11-cv-00174-cr Document 66 Filed 05/17/12 Page 3 of 3 NCBE also asserts that its appeal comes within the exception to the mootness doctrine for “cases that are capable of repetition, yet evading review,” see, e.g., Murphy v. Hunt, 455 U.S. 478, 482 (1982). We disagree. NCBE’s claim does not evade review because this appeal raises the same legal issues that “remain pending before the district court,” and “in due course, following the entry of final judgment in that court, [those issues] can be reviewed on appeal in this court.” Independence Party, 413 F.3d at 256. While NCBE’s appeal is moot, the $5,000 preliminary injunction bond paid by Jones ensures that the case as a whole is not moot. See Camenisch, 451 U.S. at 393. Accordingly, the appeal from the judgment of the district court hereby is DISMISSED AS MOOT, and the case is REMANDED to the district court for further proceedings.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk
3

 
 Case 5:11-cv-00174-cr Document 72 Filed 08/09/12 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF VERMONT

DEANNA L. JONES, Plaintiff,
v. NATIONAL CONFERENCE OF BAR EXAMINERS and ACT, INC.,
Defendants.

Civil Action Docket No. 5:11-cv-174

JOINT MOTION FOR ENTRY OF FINAL JUDGMENT Plaintiff DEANNA L. JONES ("Ms. Jones”) and Defendant NATIONAL CONFERENCE OF BAR EXAMINERS ("NCBE"), by and through counsel, hereby request that the proposed Final Judgment submitted herewith be entered by the Court, for the reasons that follow: 1. In a Summary Order dated April 26, 2012, the U.S. Court of Appeals dismissed NCBE's appeal from the Court’s August 2, 2010 preliminary injunction on mootness grounds based upon Ms. Jones's successful completion of the Multistate Professional Responsibility Examination ("MPRE"). The Court of Appeals remanded the case to this Court for further proceedings, noting in the process that, while the appeal was moot, the case itself is not moot in light of the $5,000 bond posted by Ms. Jones as security for the preliminary injunction. 2. Ms. Jones recently took the Multistate Bar Examination ("MBE"), as part of the July 2012 Vermont bar examination. She did so using a laptop computer loaded with the screen access software that she had requested and which the Vermont Board of Bar Examiners had approved.
- 1 -

Case 5:11-cv-00174-cr Document 72 Filed 08/09/12 Page 2 of 3
3. Ms. Jones does not yet know whether she has passed the Vermont bar examination.
4. NCBE has agreed that, in the event that Ms. Jones is unsuccessful on the July 2012 Vermont bar examination, NCBE will provide the Vermont Board with a laptop computer loaded with the MBE and the same screen access software for use by Ms. Jones on any subsequent administration of the Vermont bar examination she may take, subject to the Vermont Board’s approval of Ms. Jones’s request for such accommodations and agreeing to pay NCBE the fees then associated with Ms. Jones’s requested testing format. Therefore, no further action is necessary on the matters raised in Ms. Jones’s amended complaint with respect to the MBE.
5. This leaves only Ms. Jones's claim relating to the MPRE for resolution. Pursuant to a prior Stipulation (D.E. 70), NCBE has waived any claim or interest it might have in the pending security bond, which may now be released by the Clerk. Once the bond is released, this case will be moot with regard to all aspects of Ms. Jones’s amended complaint and subject to dismissal with prejudice.
6. The only outstanding issue is a request by Ms. Jones for reimbursement of attorneys’ fees and expenses based upon her having prevailed on her motion for a preliminary injunction relating to her request for accommodations on the MPRE.
7. The parties are pleased to report to the Court that they reached an agreement that amicably resolves Ms. Jones’s request for reimbursement of fees and costs, as reflected in the proposed Final Judgment.
- 2 .

Case 5:11-cv-00174-cr Document 72 Filed 08/09/12 Page 3 of 3

WHEREFORE, the parties jointly request that the Court enter the proposed Final Judgment submitted with this Motion.
Respectfully submitted this 9th day of August, 2012.

/s/ Emily J. Joselson Emily J. Joselson Michele Patton Langrock Sperry & Wool, LLP 111 South Pleasant Street P.O. Drawer 351 Middlebury, VT 05753-0351 (802) 388-6356 ejoselson@langrock.com mpatton@langrock.com
Daniel F. Goldstein Brown, Goldstein & Levy, L.L.P. 120 E. Baltimore Street, Suite 1700 Baltimore, MD 21202 (410) 962-1030
Attorneys for Plaintiff

577069
.

/s/ Karen McAndrew Karen McAndrew Dinse, Knapp & McAndrew, P.C. P.O. Box 988 209 Battery Street Burlington, VT 05402 (802) 864-5751 kmcandrew@dinse.com
Robert A. Burgoyne (D.C. Bar No. 366757) Fulbright & Jaworski L.L.P. 801 Pennsylvania Avenue, NW Washington, DC 20004-2623 (202) 662-0200
Attorneys for Defendant
- 3 -

Case 5:11-cv-00174-cr Document 72-1 Filed 08/09/12 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF VERMONT

DEANNA L. JONES, Plaintiff,
v. NATIONAL CONFERENCE OF BAR EXAMINERS,
Defendant.

)

)

)

)

)

Civil Action No. 5:11-cv-174

)

)

)

)

)

FINAL JUDGMENT The Court has considered the parties’ Joint Motion for Entry of Final Judgment. Having done so, and for good cause shown, the Court hereby GRANTS the Joint Motion and orders as follows: 1. Plaintiff’s amended complaint is hereby dismissed with prejudice, with each party to bear its own costs and expenses, including attorneys’ fees, except as otherwise expressly provided herein. 2. Plaintiff is hereby awarded two hundred and seventy five thousand dollars ($275,000) in attorneys’ fees and costs, to be paid by or on behalf of Defendant National Conference of Bar Examiners (“NCBE”). Payment will be made by check or wire transfer, payable to Brown, Goldstein & Levy, LLP, within sixty (60) days of the date on which this Final Judgment is entered by the Court. As a condition for this payment, Plaintiff’s counsel shall provide a signed W-9 tax form to counsel for Defendant within ten (10) days of the entry of this Final Judgment. 3. The payment referenced above is in full and complete satisfaction of any and all amounts that Plaintiff could claim in this case as compensable attorneys’ fees or recoverable

95611005.2

Case 5:11-cv-00174-cr Document 72-1 Filed 08/09/12 Page 2 of 2
court costs or other expenses under the Americans with Disabilities Act, the Federal Rules of Civil or Appellate Procedure, or otherwise, in connection with proceedings in this case in the district court or on appeal.
4. The Clerk is directed to release the $5,000 security bond posted by Plaintiff, immediately upon the entry of this Final Judgment.
SO ORDERED: Dated at Rutland, in the District of Vermont, this ___ day of _______, 2012.
______________ Christina Reiss, Chief Judge United States District Court

95611005.2

- 2 -

Case 5:11-cv-00174-cr Document 72-2 Filed 08/09/12 Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF VERMONT

DEANNA L. JONES,

)

)

Plaintiff,

)

)

v.

)

)

NATIONAL CONFERENCE OF BAR )

EXAMINERS,

)

)

Defendant.

)

Civil Action No. 5:11-cv-174

CERTIFICATE OF SERVICE

This is to certify that I electronically filed a Joint Motion for Entry of Final Judgment
with attached proposed Final Judgment with the clerk of Court using the CM/ECF system.
The CM/ECF system will provide service of such filing via Notice of Electronic Filing (NEF)
to the following NEF parties:
Robert A. Burgoyne, Esq. Trevor Coe, Esq. Daniel F. Goldstein, Esq. Robert B. Hemley, Esq. Emily J. Joselson, Esq. Scott C. Labarre, Esq. Caroline M. Mew, Esq. Michele B. Patton, Esq.

Dinse, Knapp & McAndrew, P.C.
209 Battery Street P.O. Box 988
Burlington, VT 05402-0988 (802) 864-5751

Dated: 8/9/12

DINSE, KNAPP & McANDREW, P.C.
By: /s/ Karen McAndrew, Esq. Karen McAndrew, Esq.

{B0922739.1 13839-0001}

 
 Case 5:11-cv-00174-cr Document 73 Filed 08/13/12 Page 1 of 2

UNITED STATES DISTRICT COURT 2D 12 AUG '3 PH 3: 15

DEANNA L. JONES,

FOR THE DISTRICT OF VERMONT
)

CLERK

BY

--?t1

DEPUT'r' ClfR r..

)

Plaintiff,

)

)

v.

)

Civil Action No. 5:ll-cv-174

) 


NATIONAL CONFERENCE OF

) 


BAR EXAMINERS,

) 


) 


Defendant.

) 


FINAL JUDGMENT The Court has considered the parties' Joint Motion for Entry of Final Judgment. Having done so, and for good cause shown, the Court hereby GRANTS the Joint Motion and orders as follows: 1. Plaintiff s amended complaint is hereby dismissed with prejudice, with each party to bear its own costs and expenses, including attorneys' fees, except as otherwise expressly provided herein. 2. Plaintiff is hereby awarded two hundred and seventy five thousand dollars ($275,000) in attorneys' fees and costs, to be paid by or on behalf of Defendant National Conference of Bar Examiners ("NCBE"). Payment will be made by check or wire transfer, payable to Brown, Goldstein & Levy, LLP, within sixty (60) days of the date on which this Final Judgment is entered by the Court. As a condition for this payment, Plaintiff s counsel shall provide a signed W-9 tax form to counsel for Defendant within ten (10) days of the entry of this Final Judgment. 3. The payment referenced above is in full and complete satisfaction of any and all amounts that Plaintiff could claim in this case as compensable attorneys' fees or recoverable

95611005.2

Case 5:11-cv-00174-cr Document 73 Filed 08/13/12 Page 2 of 2

court costs or other expenses under the Americans with Disabilities Act, the Federal Rules of Civil or Appellate Procedure, or otherwise, in connection with proceedings in this case in the district court or on appeal.
4. The Clerk is directed to release the $5,000 security bond posted by Plaintiff, immediately upon the entry of this Final Judgment.

SO ORDERED: 


fJv,""'J Dated at Rutland, in the District of Vermont, this 13+;ay of

~20 12. 


Christina Reiss, Chief Judge United States District Court

JUDGDMAETNE:TENIcE:rRItE'1DIO,DN

\DOCKET 1.

»

95611005.2

-2­

 
 Case: 5:11-cv-00174-cr As of: 03/03/2014 05:19 PM EST 1 of 7

U.S. District Court District of Vermont (Rutland) CIVIL DOCKET FOR CASE #: 5:11−cv−00174−cr

CLOSED,ENE4

Jones v. National Conference of Bar Examiners et al Assigned to: Chief Judge Christina Reiss Cause: 42:2000 Job Discrimination (Public Accommodations)
Plaintiff

Date Filed: 07/01/2011 Date Terminated: 08/13/2012 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

Deanna L. Jones

represented by Daniel F. Goldstein , Esq. Brown, Goldstein &Levy, LLP 120 East Baltimore Street, Suite 1700 Baltimore, MD 21202 (410) 962−1030 Fax: (410) 385−0869 Email: dfg@browngold.com PRO HAC VICE ATTORNEY TO BE NOTICED

Emily J. Joselson , Esq. Langrock Sperry &Wool, LLP 111 South Pleasant Street P.O. Drawer 351 Middlebury, VT 05753−0351 (802) 388−6356 Fax: (802) 388−6149 Email: ejoselson@langrock.com ATTORNEY TO BE NOTICED

Michele B. Patton , Esq. Langrock Sperry &Wool, LLP 111 South Pleasant Street P.O. Drawer 351 Middlebury, VT 05753−0351 (802) 388−6356 Email: mpatton@langrock.com ATTORNEY TO BE NOTICED

Scott C. Labarre , Esq. LaBarre Law Offices, P.C. 1660 South Albiion Street, Suite 918 Denver, CO 80222 (303) 504−5979 Fax: (303) 757−3640 Email: slabarre@labarrelaw.com PRO HAC VICE ATTORNEY TO BE NOTICED

Timothy R. Elder , Esq. Brown, Goldstein &Levy, LLP 120 East Baltimore Street, Suite 1700 Baltimore, MD 21202 (410) 962−1030 Fax: (410) 385−0869 PRO HAC VICE ATTORNEY TO BE NOTICED

Trevor Coe , Esq. Brown, Goldstein &Levy, LLP

Case: 5:11-cv-00174-cr As of: 03/03/2014 05:19 PM EST 2 of 7
120 East Baltimore Street, Suite 1700 Baltimore, MD 21202 (410) 962−1030 Fax: (410) 385−0869 Email: tcoe@browngold.com PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant National Conference of Bar Examiners
Defendant ACT, Inc. TERMINATED: 07/22/2011

represented by Karen McAndrew Dinse, Knapp &McAndrew, P.C. 209 Battery Street P.O. Box 988 Burlington, VT 05402−0988 (802) 864−5751 Fax: (802) 864−1967 Email: kmcandrew@dinse.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Caroline M. Mew , Esq. Fulbright &Jaworski L.L.P. 801 Pennsylvania Avenue, NW Washington, DC 20004 (202)662−4513 Fax: (202) 662−4643 Email: cmew@fulbright.com PRO HAC VICE ATTORNEY TO BE NOTICED
Robert A. Burgoyne , Esq. Fulbright &Jaworski L.L.P. 801 Pennsylvania Avenue, NW Washington, DC 20004 (202) 662−4513 Fax: (202) 662−4643 Email: rburgoyne@fulbright.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Robert B. Hemley Gravel and Shea 76 St. Paul Street P.O. Box 369 Burlington, VT 05402−0369 (802) 658−0220 Fax: (802) 648−1456 Email: rhemley@gravelshea.com ATTORNEY TO BE NOTICED

Date Filed 07/01/2011
07/01/2011

# Docket Text
1 COMPLAINT against ACT, Inc., National Conference of Bar Examiners filed by Deanna L. Jones. (Attachments: # 1 Civil Cover Sheet)(law) (Entered: 07/01/2011)
2 MOTION for Preliminary Injunction filed by Deanna L. Jones ***Declaration of Michele B. Patton, and exhibits thereto, withdrawn on 7/26/2011 pursuant to 41 ***(Attachments: # 1 Memorandum in Support, # 2 Declaration of Michele B. Patton, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, #

Case: 5:11-cv-00174-cr As of: 03/03/2014 05:19 PM EST 3 of 7

07/01/2011 07/07/2011 07/07/2011 07/07/2011 07/07/2011
07/08/2011 07/08/2011 07/11/2011 07/12/2011
07/13/2011 07/14/2011 07/14/2011 07/14/2011 07/14/2011
07/14/2011 07/14/2011
07/14/2011

8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H, # 11 Exhibit I, # 12 Exhibit J, # 13 Declaration of Stephen A. Feltus, # 14 Exhibit A, # 15 Declaration of Geoff Howard, # 16 Exhibit A)(law) (Entered: 07/01/2011)
3 MOTION for Appearance Pro Hac Vice filed by Deanna L. Jones (Attachments: # 1 Affidavit of Scott C. LaBarre, Esq., # 2 Certificate of Good Stand (Scott C. LaBarre))(law) (Entered: 07/01/2011)
4 AFFIDAVIT of Timothy R. Elder, Esq. re: 3 MOTION for Appearance Pro Hac Vice by Deanna L. Jones. (Attachments: # 1 Certificate of Good Standing)(law) (Entered: 07/07/2011)
5 AFFIDAVIT of Daniel F. Goldstein, Esq. re: 3 MOTION for Appearance Pro Hac Vice by Deanna L. Jones. (Attachments: # 1 Certificate of Good Standing)(law) (Entered: 07/07/2011)
6 AFFIDAVIT of Trevor Coe re: 3 MOTION for Appearance Pro Hac Vice by Deanna L. Jones. (Attachments: # 1 Certificate of Good Standing)(law) (Entered: 07/07/2011)
7 DECLARATION of Deanna L. Jones re: 2 MOTION for Preliminary Injunction by Deanna L. Jones. (Attachments: # 1 Exhibit A (redacted), # 2 Exhibit A (unredacted, image is sealed))(law) (Attachments 1 and 2 replaced on 7/18/2011) (law). (Entered: 07/08/2011)
18 DECLARATION of Frederick K. Schroeder re: 2 Motion for Preliminary Injunction by Deanna L. Jones. (Attachments: # 1 Exhibit A) (pam) Link added on 7/15/2011 (jlh). (Entered: 07/15/2011)
19 DECLARATION of Blanch Podhajski by Deanna L. Jones. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (pam) (Entered: 07/15/2011)
8 NOTICE of Hearing re: 2 MOTION for Preliminary Injunction. Motion Hearing set for 7/22/2011, 9:30 AM in Burlington Courtroom 440 before Chief Judge Christina Reiss. (pjl) (Entered: 07/11/2011)
9 ORDER granting 3 Motion for Admission Pro Hac Vice re: Daniel F. Goldstein, Esq., Trevor Coe, Esq., Timothy R. Elder, Esq., and Scott C. LaBarre, Esq. for the Plaintiff. Signed by Chief Judge Christina Reiss on 7/11/2011. (This is a text only Order.) (cle) (Entered: 07/12/2011)
10 CERTIFICATE OF SERVICE by Deanna L. Jones re 8 Notice of Hearing on 2 Motion for Preliminary Injunction. (pam) (Entered: 07/13/2011)
11 NOTICE OF APPEARANCE by Karen McAndrew on behalf of National Conference of Bar Examiners. (McAndrew, Karen) (Entered: 07/14/2011)
12 NOTICE OF APPEARANCE by Robert B. Hemley on behalf of ACT, Inc.. (Attachments: # 1 Certificate of Service)(Hemley, Robert) (Entered: 07/14/2011)
13 AFFIDAVIT of Service for Summons, 1 Complaint, 2 Motion for Preliminary Injunction, 3 Motion for Appearance Pro Hac Vice served on ACT, Inc. on 7/6/2011 filed by Deanna L. Jones. (pam) (Entered: 07/14/2011)
14 AFFIDAVIT of Service for Summons, 1 Complaint, 2 Motion for Preliminary Injunction, 3 Motion for Appearance Pro Hac Vice served on National Conference of Bar Examiners on 7/6/2011 filed by Deanna L. Jones. (pam) (Entered: 07/14/2011)
15 SUMMONS RETURNED Executed. National Conference of Bar Examiners served on 7/6/2011, answer due 7/27/2011. (pam) (Entered: 07/14/2011)
16 STIPULATION to Voluntary Dismiss Act, Inc. as a Defendant without Prejudice by Deanna L. Jones. (Attachments: # 1 Certificate of Service)(Joselson, Emily) (Main Document 16 replaced and attachment added on 7/18/2011: # 2 Text of Proposed Order) (law). (Entered: 07/14/2011)
17 MOTION to Continue Hearing on 2 Motion for Preliminary Injunction filed by National Conference of Bar Examiners (Attachments: # 1 Exhibit A, # 2 Exhibit

Case: 5:11-cv-00174-cr As of: 03/03/2014 05:19 PM EST 4 of 7

07/15/2011 07/15/2011
07/18/2011
07/18/2011 07/18/2011 07/18/2011 07/19/2011 07/19/2011 07/19/2011 07/19/2011
07/19/2011 07/19/2011 07/20/2011

B)(McAndrew, Karen) Link added on 7/18/2011 (law). (Entered: 07/14/2011)
20 MOTION for Appearance Pro Hac Vice of Robert A. Burgoyne and Caroline M. Mew filed by National Conference of Bar Examiners(jlh) (Entered: 07/15/2011)
21 RESPONSE in Opposition re 17 MOTION to Continue Hearing on 2 Motion for Preliminary Injunction filed by Deanna L. Jones. (Attachments: # 1 Affidavit of Declaration of Daniel F. Goldstein, Esq., # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Certificate of Service)(Joselson, Emily) Text of attachments clarified on 7/18/2011 (law). (Entered: 07/15/2011)
22 NOTICE OF DOCKET ENTRY CORRECTION re: 16 Stipulation to Voluntarily Dismiss ACT, Inc. as a Defendant Without Prejudice filed by Deanna L. Jones. The main document image contained that of the proposed order. The images have been broken apart and reattached to the entry of 16 . The images are also attached to this entry. (Attachments: # 1 Text of Proposed Order) (law) (Entered: 07/18/2011)
23 NOTICE OF DOCKET ENTRY CORRECTION re: 7 DECLARATION of Deanna L. Jones re: 2 MOTION for Preliminary Injunction filed by Deanna L. Jones. The original document image(s) were missing Pages 2 and 3. The complete images are now attached to 7 and are also attached to this entry. (Attachments: # 1 Exhibit A (unredacted, image is sealed)) (law) (Entered: 07/18/2011)
24 **WITHDRAWN** DECLARATION of Michael Shamos re: 2 MOTION for Preliminary Injunction by Deanna L. Jones. (Attachments: # 1 Exhibit Resume of Michael Ian Shamos, # 2 Certificate of Service)(Joselson, Emily) Withdrawn on 7/19/2011 pursuant to 26 . (Entered: 07/18/2011)
25 MOTION in Limine to Bar Computer Demonstration During Preliminary Injunction Hearing filed by National Conference of Bar Examiners (Attachments: # 1 Exhibit A)(McAndrew, Karen) (Entered: 07/18/2011)
26 WITHDRAWAL of Document by Deanna L. Jones re 24 Declaration. (Attachments: # 1 Certificate of Service)(Joselson, Emily) (Entered: 07/19/2011)
27 REPLY to Response to 17 MOTION to Continue Hearing on 2 Motion for Preliminary Injunction filed by National Conference of Bar Examiners. (McAndrew, Karen) (Entered: 07/19/2011)
28 ORDER deferring ruling on 25 Motion in Limine. The court will address this motion as an evidentiary challenge at its July 22, 2011 hearing. Signed by Chief Judge Christina Reiss on 7/19/2011. (This is a text only Order.) (cle) (Entered: 07/19/2011)
29 ORDER denying 17 Motion to Continue. Plaintiff was entitled to request a hearing date for her pending motion for preliminary injunction and did not engage in a prohibited ex parte communication in doing so. While the better practice would be to communicate, in advance, with identified defense counsel regarding available dates, Plaintiff apparently did not do so. The court has attempted to accommodate both parties' needs in scheduling two days for hearing. The court will address Defendant's argument that Plaintiff manufactured her own emergency in the context of the pending motion. Signed by Chief Judge Christina Reiss on 7/19/2011. (This is a text only Order.) (cle) (Entered: 07/19/2011)
30 AFFIDAVIT of Caroline M. Mew re: 20 MOTION for Appearance Pro Hac Vice by National Conference of Bar Examiners. (Attachments: # 1 Certificate of Good Standing, # 2 Certificate of Service)(law) (Entered: 07/20/2011)
31 AFFIDAVIT of Robert A. Burgoyne re: 20 MOTION for Appearance Pro Hac Vice by National Conference of Bar Examiners. (Attachments: # 1 Certificate of Good Standing)(law) (Entered: 07/20/2011)
32 NOTICE of Statement of Interest by United States of America re 2 MOTION for Preliminary Injunction (Kerest, Nikolas) (Main Document 32 replaced on 7/20/2011) (law). (Entered: 07/20/2011)

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07/20/2011 07/20/2011
07/20/2011
07/21/2011 07/21/2011 07/22/2011 07/22/2011
07/25/2011 07/26/2011 07/26/2011 07/27/2011 07/27/2011

33 NOTICE OF DOCKET ENTRY CORRECTION re: 32 Notice of Statement of Interest filed by United States of America. The original document image contained an error in the Certificate of Service. The corrected image is now attached to 32 and is also attached to this entry. (law) (Entered: 07/20/2011)
34 RESPONSE in Opposition re 2 MOTION for Preliminary Injunction filed by National Conference of Bar Examiners. (Attachments: # 1 Declaration of Erica Moeser, # 2 Exhibit A, # 3 Exhibit B, # 4 Declaration of Kent Brye, # 5 Declaration of Derek Binkley, # 6 Declaration of Joan Van Tol, # 7 Exhibit A, # 8 Declaration of Caroline Mew, # 9 Exhibit 1, # 10 Exhibit 2, # 11 Exhibit 3, # 12 Exhibit 4, # 13 Exhibit 5, # 14 Exhibit 6, # 15 Exhibit 7, # 16 Exhibit 8, # 17 Exhibit 9)(McAndrew, Karen) Attachment descriptions clarified on 7/21/2011 (law). (Entered: 07/20/2011)
35 MOTION for Summary Judgment filed by National Conference of Bar Examiners (Attachments: # 1 Statement of Undisputed Material Facts, # 2 Declaration of Erika Moeser, # 3 Exhibit A, # 4 Exhibit B, # 5 Declaration of Derek Binkley, # 6 Declaration of Joan Van Tol, # 7 Exhibit A, # 8 Declaration of Caroline Mew, # 9 Exhibit 1, # 10 Exhibit 2, # 11 Exhibit 3, # 12 Exhibit 4, # 13 Exhibit 5, # 14 Exhibit 6, # 15 Exhibit 7, # 16 Exhibit 8, # 17 Exhibit 9, # 18 Exhibit 10, # 19 Exhibit 11)(McAndrew, Karen) Description of attachments clarified on 7/21/2011 (law). (Entered: 07/20/2011)
36 ORDER granting 20 Motion for Admission Pro Hac Vice re: Robert A. Burgoyne, Esq. and Caroline M. Mew, Esq. Signed by Chief Judge Christina Reiss on 7/20/2011. (This is a text only Order.) (cle) (Entered: 07/21/2011)
37 RESPONSE to the 34 RESPONSE in Opposition re 2 MOTION for Preliminary Injunction by National Conference of Bar Examiners. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(McAndrew, Karen) Links added on 7/22/2011 (law). (Entered: 07/21/2011)
38 ORDER: re 16 Stipulation to Voluntarily Dismiss ACT, Inc. as a Defendant Without Prejudice . ACT, Inc. terminated. Signed by Chief Judge Christina Reiss on 7/22/2011. (pam) (Entered: 07/22/2011)
40 MINUTE ENTRY for proceedings held before Chief Judge Christina Reiss: Motion Hearing held on 7/22/2011 re 2 MOTION for Preliminary Injunction. Pltf present with Attorneys D. Goldstein, E. Joselson, M. Patton, T. Elder, and T. Coe. Attorneys K. McAndrew, C. Mew, and R. Burgoyne present on behalf of Def. The following witnesses, sworn by the clerk, testified on behalf of the pltf: Deanna Jones and Blanch Podhajski. Document 25 MOTION in Limine to Bar Computer Demonstration During Preliminary Injunction Hearing Orally Withdrawn. Hearing ends at 4:30 p.m. Hearing to continue on 8/1/2011 10:00 AM in Rutland Courtroom before Chief Judge Christina Reiss. (Court Reporter: A. Henry) (hbc) Text clarified to add reference to 25 on 8/30/2011 (jlh). (Entered: 07/25/2011)
39 NOTICE of Hearing re: 2 MOTION for Preliminary Injunction. Continuation of Motion Hearing set for 8/1/2011 at 10:00 AM in Rutland Courtroom before Chief Judge Christina Reiss. (pam) (Entered: 07/25/2011)
41 NOTICE of Document Withdrawal by Deanna L. Jones re 2 Motion for Preliminary Injunction; Declaration of Michele B. Patton (attachments 2 − 12) withdrawn. (pam) (Entered: 07/26/2011)
42 DECLARATION of Michele B. Patton re: 2 MOTION for Preliminary Injunction by Deanna L. Jones. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D (image is sealed), # 5 Exhibit E (unredacted/sealed), # 6 Exhibit E (redacted), # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J) (pam) (Entered: 07/26/2011)
43 ANSWER to 1 Complaint by National Conference of Bar Examiners.(McAndrew, Karen) (Entered: 07/27/2011)
44 CORPORATE DISCLOSURE STATEMENT pursuant to Local Rule 7.1(a) by National Conference of Bar Examiners. (McAndrew, Karen) (Entered: 07/27/2011)

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07/28/2011
07/28/2011 07/28/2011 08/01/2011
08/02/2011 08/03/2011 08/04/2011 08/05/2011 08/11/2011 08/15/2011 08/15/2011 08/16/2011 09/02/2011 09/07/2011

45 TRANSCRIPT of Preliminary Injunction hearing held on 7/22/2011 before Chief Judge Christina Reiss. Court Reporter Anne Henry, Telephone number 802−747−9193. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/18/2011. Redacted Transcript Deadline set for 8/29/2011. Release of Transcript Restriction set for 10/27/2011. (pjl) (Entered: 07/28/2011)
46 SECOND DECLARATION of Joan Van Tol re: 35 MOTION for Summary Judgment, 2 MOTION for Preliminary Injunction by National Conference of Bar Examiners. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(McAndrew, Karen) Link added &text clarified on 7/29/2011 (law). (Entered: 07/28/2011)
47 CERTIFICATE OF SERVICE by National Conference of Bar Examiners re 46 Declaration (McAndrew, Karen) (Entered: 07/28/2011)
49 MINUTE ENTRY for proceedings held before Chief Judge Christina Reiss: Hearing held on 8/1/2011 re: 2 MOTION for Preliminary Injunction. D. Goldstein, Esq., T. Coe, Esq., E. Joselson, Esq. &M. Patton, Esq. present with plaintiff. R. Burgoyne, Esq., K. McAndrew, Esq. &C. Mew, Esq. present for dft. N. Kerest, AUSA present for gov't. Hearing continued from 7/22/2011. The following witnesses were sworn by the Clerk and examined for the pltf: Stephen Feltus &Geoffrey Howard. Erica Moeser was sworn by the clerk and examined as a witness for the dft. Counsel make statements and court makes inquiries. Evidence closed at 4:30. Closing arguments by counsel. ORDERED: A ruling on the motion will be filed by noon on 8/2/2011. (Court Reporter: Anne Henry) (pjl) (Entered: 08/02/2011)
48 ORDER granting 2 Motion for Preliminary Injunction. Signed by Chief Judge Christina Reiss on 8/2/2011. (pam) (Entered: 08/02/2011)
50 CERTIFICATE of Counsel re 48 Order on Motion for Preliminary Injunction by Emily J. Joselson, Esq on behalf of Deanna L. Jones (Attachments: # 1 Certificate of Service)(Joselson, Emily) (Entered: 08/03/2011)
51 MOTION to Modify 48 Order on Motion for Preliminary Injunction and MOTION for a Conditional Stay filed by National Conference of Bar Examiners. (McAndrew, Karen). Added MOTION to Stay on 8/5/2011 (law). (Entered: 08/04/2011)
52 ORDER granting in part 51 MOTION to Modify Preliminary Injunction and Conditional Motion for a Stay. The court grants modification of 48 Order as to NCBE providing Plaintiff with updated versions of the ZoomText and Kurzweil 3000 software. Signed by Chief Judge Christina Reiss on 8/5/2011. (This is a text only Order.) (pjl) (Entered: 08/05/2011)
53 NOTICE of Withdrawal of Pending Summary Judgment Motion by National Conference of Bar Examiners re 35 MOTION for Summary Judgment (McAndrew, Karen) (Entered: 08/11/2011)
54 NOTICE OF APPEAL as to 48 Order on Motion for Preliminary Injunction by National Conference of Bar Examiners (McAndrew, Karen) (Entered: 08/15/2011)
55 RESPONSE in Opposition re 51 MOTION to Modify 48 Order on Motion for Preliminary Injunction and MOTION for a Conditional Stay filed by Deanna L. Jones. (Attachments: # 1 Certificate of Service)(Joselson, Emily) (Entered: 08/15/2011)
USCA Appeal Fees received $455.00; receipt number 4682006021 re: 54 Notice of Appeal filed by dft National Conference of Bar Examiners (kac) (Entered: 08/16/2011)
56 APPEAL RECORD Sent to USCA Circuit No. 11−3355−cv (Electronic File). Indexed record on Appeal for 54 Notice of Appeal transmitted to U.S. Court of Appeals. (gmg) (Entered: 09/02/2011)
57 OPINION AND ORDER denying 51 Motion for Further Modification of 48 Preliminary Injunction and Conditional Motion for a Stay. Signed by Chief Judge

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07/18/2012 07/24/2012 08/09/2012 08/13/2012

Christina Reiss on 9/7/2011. (pam) (Entered: 09/07/2011)
58 STIPULATION to Partial Stay filed by Deanna L. Jones, National Conference of Bar Examiners, Inc. (Attachments: # 1 Certificate of Service).(Joselson, Emily) Filer added and text clarified on 9/10/2011 (law). (Entered: 09/08/2011)
59 ORDER approving 58 Parties' Stipulation to Partial Stay. Signed by Chief Judge Christina Reiss on 10/19/2011. (This is a text only Order.)(cle) (Entered: 10/20/2011)
60 UNOPPOSED MOTION to Amend 1 Complaint filed by Deanna L. Jones. (Attachments: # 1 Proposed Amended Complaint (redlined), # 2 Proposed Amended Complaint) (pam) (Entered: 12/28/2011)
61 ORDER granting 60 UNOPPOSED MOTION to 1 Amend Complaint. Signed by Chief Judge Christina Reiss on 12/29/2011. (This is a text only Order.) (pjl) (Entered: 12/29/2011)
62 AMENDED COMPLAINT against National Conference of Bar Examiners filed by Deanna L. Jones. (pam) (Entered: 12/30/2011)
63 ANSWER to 62 Amended Complaint by National Conference of Bar Examiners.(McAndrew, Karen) (Entered: 01/13/2012)
64 Entry has been removed from the docket. (Entered: 04/26/2012)
65 NOTICE OF DOCKET ENTRY REMOVAL. Document 64 has been removed from the docket as being entered prematurely. (jlh) (Entered: 05/17/2012)
66 MANDATE of USCA Circuit No. 11−3355−cv as to 54 Notice of Appeal. The appeal of the judgment is dismissed as moot and case is remanded to the district court for further proceedings. (law) (Entered: 05/17/2012)
67 LETTER re: status report by National Conference of Bar Examiners. (Attachments: # 1 Certificate of Service)(McAndrew, Karen) Text clarified on 6/17/2012 (law). (Entered: 06/14/2012)
68 NOTICE of Hearing: Status Conference set for 7/9/2012 at 9:30 AM in Rutland Courtroom before Chief Judge Christina Reiss. (pam) (Entered: 06/22/2012)
69 MINUTE ENTRY for proceedings held before Chief Judge Christina Reiss: Status Conference held on 7/9/2012. D. Goldstein, Esq., E. Joselson, Esq., M. Patton, Esq. &T. Coe, Esq. present for pltf. K. McAndrew, Esq. &R. Burgoyne, Esq. present for dfts. All parties present by telephone. Court makes inquiries and counsel make statements. Counsel states that settlement is in progress except for settlement of fees for which a deadline of 9/30/12 has been set. If the fee issue is not resolved by then, the parties will notify the court. Counsel will submit a stipulation as to partial settlement within the next two weeks. (Court Reporter: Anne Henry) (pjl) (Entered: 07/09/2012)
70 STIPULATION by National Conference of Bar Examiners, Deanna L. Jones. (Attachments: # 1 Certificate of Service)(McAndrew, Karen) Filer added on 7/23/2012 (jlh). (Entered: 07/18/2012)
71 STIPULATION AND ORDER re: Partial Settlement. Motion to recover fees due by 10/1/2012. Response due 10/22/2012. Reply due by 10/29/2012. Signed by Chief Judge Christina Reiss on 7/23/2012. (pam) (Entered: 07/24/2012)
72 JOINT MOTION for Entry of Final Judgment filed by Deanna L. Jones, National Conference of Bar Examiners. (Attachments: # 1 Proposed Final Judgment, # 2 Certificate of Service)(McAndrew, Karen) (Entered: 08/09/2012)
73 JUDGMENT Amended Complaint dismissed with prejudice. Plaintiff awarded two hundred and seventy five thousand dollars ($275,000) in attorneys' fees and costs, to be paid by or on behalf of Defendant National Conference of Bar Examiners. Signed by Chief Judge Christina Reiss on 8/13/2012. (pam) (Entered: 08/14/2012)