CATHRYN JEANNE BO NNETTE,

Plaintiff,
v. DI STRI CT OF COLUMBIA COURT OF APPEAL S, et al. , Def endants. UNITED STAT ES DIS TRICT COURT

F OR THE DIS TRICT OF COLUM BIA

Civil Action No. 11–1053 (CKK)

MEMORAN DUM OP INION (Jul y 13, 2011) Plaintiff Cathry

n J eanne Bonne tte (“Plaintiff” or “B onnette”) , a leg ally blind law school g raduate, filed this action see king to r equire Def endants District of Columbia Court of Appe als (“Court of A

ppeals” ) and N ational Confer ence of B ar Examiners (“NCBE” ) to allow her to take the J uly 2011 Multist ate B ar Exam using a computer e quipped with an ac cessible sc ree n-re ading prog ram c alled JAW S (which stands for J ob Acc ess With S peec h) that is commonly used by individuals with vi sual impairments. Plaintiff contends that the a lternative a ccommodations offe red by

Def endants, whic h include providinga human r eade r or a n audio CD with the exam,
are not acc essible to her a nd violate the re quirements of the Americ ans with Disabilities Act (“A DA”) and its implementing re g ulations. Presently pendingbefor e the Court ar e Plaintiff’s [2] Motion for I ssuance of Preliminary Injunction, Defe ndant Court of Appe als’s [12] Motion for Summary J udg ment, and De fenda

nt NCBE’s [10] Mot ion to Dismi ss or for Summary J udg ment. The pa rties have fully

briefe d these motions under a n expedited briefingschedule , and ther efor e the motions are r ipe for the Court’s resolution.Ba sed on a se arc hing r eview of the par ties’ motions, supporting dec lara tions and exhi bits, the applica

ble leg al authorities, and the rec ord as a whole, the Court shall deny Def endants’ motions t o dismiss and/or for summary judgme nt and grant Plaintiff’s motion for pre liminary injunction. I. BACKG ROUND A. The D.C. Bar Examination Individuals seekingto become lice nsed to prac tice law in the D istrict of Columbia must become members of

the District of Columbia Ba r. The D .C. Court of Appeals c rea ted the Commi ttee on Admissions (the “Committee”) in Apr il 1972 to oversee the D.C. Ba r, and the Commi ttee is responsible f or ce rtify ing a pplications from attorne y s for a dmission t o the D.C. Ba r, both by examination and without ex amination. Court of Appea ls St mt. ¶ 1. The D .C. Bar 1 Ex amination is conducted in F ebrua ry and Jul y of eve ry y ear . Id. ¶ 2. As in virtually ever y other jurisdiction in the United States, applicants for the D.C. Ba r must complete the Multistate B ar Ex amination (“MB E”), a

six hour examination consisting of 200 multiple-choic e questions. Id. Applicants for

the D.C. Ba

r also must complete the Multistate Perf ormanc e Te st (“MPT”), consisting of

two 90-minute skills questions , and the Multistate Essay Ex amination (“MEE” ), a collection of 30- minute essay questions. Id. All of these e x aminations are provided by the National Confer ence of B ar Examiners. Id.

Pursuant to L ocal Civil Rule 7(h), motions for summary judgme nt must be acc ompanied 1 by a stateme nt of materia l fac ts as to which the movingparty contends ther e is not a g enuine issue, with refe renc es to the par ts of the re cord r elied on to support the stateme nt. The Court shall cite to a pa

rty ’s Statement of Mate rial F acts (“ Stmt .”) unle ss a statement is contra dicted by the opposing party

in its responding state ment (“Resp. Stmt.”). The Court shall also cite direc tly to evidence in the rec ord, whe re a ppropriate
. 2NCBE is a non- profit org anization that develops standar dized ex aminations that

jurisdictions can choose to purcha se and a dminist er a s part of the ir bar e x amination proce ss. NCBE Stmt. ¶ 9. The MB E is a sec ure, standa rdized examination developed and owned by NCBE that is administ ere d in paper -and- pencil for mat. Dec l. of Erica

Moeser (“Moe ser De cl.”) ¶ 3(a ). F orty -eig ht states and the District of Columbi a use the MBE a s a compone nt of their state bar e x aminations. Id. ¶ 3(b) . To ensure that score s achie ved on diffe rent ve rsions of the MB E taken at differ ent times have the same mea ning, a signific ant number of

well-pe rfor

ming items that appea

red on pr evious administrations of the test ar e embe dded in ea ch cur rent test. Id. ¶ 3(c ). In other wor ds, NCBE r euses some of the questions from prior te sts on each ve rsion of the MBE . This proce ss, which NCBE calls “e quating ,” allows NCB E to compare the perf ormanc e of c andidates on the curr ent test to the perf ormanc e of pr ior examinees. Id. Be cause of this prac tice, examination security is a critica l part of a dminist eringthe MBE
. Id. I f examination questions are compromised through unauthorized disclosure, they are retire d and must be replac ed with new que stions. Id. I t curre ntly costs NCBE $300,000 a

nd hundreds of hours of wor

k by staff to de velop a sing le form of an MB E exam. Id. NCBE publishes its MBE te st booklets severa l months prior to the Febr uary and Jul y dates on whic h jurisdictions administ er the ir bar e x aminations. Moeser D ecl. ¶ 3(d). J urisdictions such as the District of Columbia then orde r a c erta in number of test booklets fr om NCBE ba sed on the number of individuals who have r eg istered to take the exam. Id. NCBE sends the MB E test booklets to eac h jurisdiction, which then administers the MB E alongwith other c omponents of the bar examination. Id. NCBE r equire s that administering jurisdictions comply with a strict set of se curity proce dures se t forth in a docume nt captioned “ MBE

3Conditi ons of Use.” See Dec l. of Christopher Dix (“Dix Dec l.”), Ex. (MBE Conditions of Use).

These pr ocedur es include: doc umenting a chain of custody for a ll test booklets and properly
secur ing the m at all times; prepar ing a seatingplan that minimiz es the possibility for communication betwe en neighboringexaminees; and scr eeningall personne l before eng ag ing them as super

visors or proc tors. Id. at 1. NCBE require s that the test be administere d no ear lier than the last Wednesday

of F ebrua

ry or Jul y , including a

ny specia l acc ommodations required by the ADA. Id. at 2. NCBE rules prohibit examinees from br ingingwritten mater ial such as
scratch pape r or a

ny persona l belong ings othe r than pe ncils to their seats whe n takingthe MBE , require that examinees be sea ted in straig ht rows, and pr ohibit the use of a c omputer with the MBE. Id. at 3. These security protocols must be followed unless the jur isdiction obtains a separ ate wr itten ag ree ment from NCB E that descr ibes an a lternative pr actice that ensure s the same leve l of secur ity
. Id. NCBE makes all of its examinations (including the MB E, the MPT, the MEE, and the Multist ate Profe ssional Responsibil ity Ex amination (“MPRE”)) available in severa l formats so that they can be administered to disabled individuals who ca nnot effe ctively

acc ess test content using standa

rd examination booklets and answe r shee ts. Moeser De cl. ¶ 7(a ). F or visually impaired e x aminees, N CBE off ers the f ollowing a lternative f

ormats for a ll of its ex aminations: (1) lar g e print pape r ver sion, with tex t up to 72-point font also available in re verse white-onblack c ontrast; (2) pa

per ve rsion with closed circ uit television magnific ation; (3) B raille ve rsion; (4) a udio CD, to be play ed on a por table CD player w ith two available spe eds, and w ith each question and set of a

nswer c hoices on a

separ ate tra ck so that examinees ca n easily repla y a question; and (5) usinga human r eade r. Id. ¶ 7(b) . Additionally , for e x aminations such as the
4MPT and MEE wher e questions ar e disclosed a fter e ach a dminist ration, NCB E makes the

examination available on a disk that c an be loa ded onto a laptop c omputer and a cce ssed using mag nification softwa

re ( such as Z oomText ) and/or sc ree n rea der sof tware (such a s J AWS). Id. ¶ 7(c ). B etwee n 2000 and 2010, jurisdictions have or dere d approximately 484 audio ver sions of the MBE (either

audio CD or audio tape ) and a pproxi mately

92 Br ailled examination forms. Id. ¶ 7(d)
. Applicants who see k testing a ccommodations on the D.C. B ar Examination must complete a

n Eligibility

Questionnaire and provide documentation supportingtheir cla ims of disability and the ne ed for

an ac commodation. Dix Dec l. ¶ 8. The Elig ibilit y Questionnaire provides applica

nts with an outline to state the nature , history , and ac commodations previously aff orded f or the reported disability
. Id. ¶ 9. Onc e this information has bee n provided, the Commi ttee on Admissions makes a de cision on a ca se-by -ca se basis re g ardingwhat
acc ommodation(s) to provide. Id. ¶ 8. In the past five year s, the Commit tee ha s rec eived approximately

125 reque sts for ac commodations as a r esult of var ious disabilit ies, including visual impairment. Id. ¶ 10. The Committee has r ece ived five r equests in the last nine year s from visually

impaired individuals, and those a pplicants wer e provide d with a number of
acc ommodations, including B railled a nd larg e print examinations, audio cassettes/CDs, double time, rea der a ssistance, e x tra lig hting, a nd, for the MPT and MEE , permission to use a dictating device and laptop computer
. Id. No visually impaired pe rson has e ver be en provide d the use of computer- based te sting on the MB E portion of the e x amination. Id. B. Plaintif

f and Her Visual Impairment Plaintiff Cathry

n Bonne tte is a hig hly -educ ated r esident of Ar lington, Virg inia who has
5applied to take the J uly 2011 administration of the D.C. B ar Examination. Decl. of Cathry n Bonne tte (“B onnette De cl.”) ¶¶ 2, 8. B onnette graduated from the University of Michig an with a B.A . in psy cholog y

in 1976 and ea

rned a Masters of

Divinity deg ree from F uller Seminary in 1989. Id. ¶¶ 3, 5. B onnette later completed a

joint degr ee pr og ram in alter native dispute resolution at Pepper dine Univer sity , ear ning a J .D. in 2003 and an M.A . in 2005. Id. ¶¶ 6- 7. Approxim ately

thirty y ear s ag o, Bonne tte was diagnosed with retinopathy , and her vision has g radua lly

and progressively

deter iorated since that time. Bonne tte Dec l. ¶ 9. She has had total visual impairment in her rig ht ey e at lea st since childhood. Dec l. of Alexis G. Malkin (“Ma lkin Decl.”) ¶ 10. Curre ntly , Bonne tte has no lig ht perc eption in either e y e and is totally blind. Bonnette D ecl. ¶

¶ 9-10. B eca

use of he r blindness, Bonne tte can no long er r ead sta ndard print. Id. ¶ 11. I

n the ea rly 1990s, Bonne tte beg an usingJ AWS t o supplement her de teriorating vision. Id. ¶ 13. JAW S, which stands for Job Acce ss Wi th Speech, is scr een a cce ss software that
rea ds aloud the text on a computer scr een a nd allows a user

to independently

navig ate through the text us ing a

key board. Id. ¶ 12. JAW S software allows Bonne tte to use key commands to quickly and ea sily

navig ate through a docume nt independently , skim tex t, jump to a particular section or pa ssag e in a doc ument, repe at a wor d or sentenc e, spell words, c ontrol the rea ding speed, a nd have inde pendent, non- visual acc ess to rea ding in a manner that mimics the experience she enjoyed bef ore she lost her vision. Id. By 2001, Bonne tte could no long er r ely upon her vision to supplement her a bility to rea d text with auditory methods. Id. ¶ 14. Acc ording ly , Bonne tte transitioned to the exclusive use of JAW S for re adingtext , and it is the primary method she uses to re ad for work a nd school, to study

for the ba

r exam, and to perf

orm
near ly all aca demic, tec hnical, and othe r leng thy rea ding. Id.
6Be cause Bonne tte lear ned to re ad visually , she is primarily a visual lea

rner . Malkin Dec l. ¶ 12. The te chniques B onnette uses whe n operating JAW S emulate the proc esses she use d befor e she lost her

vision. Id. When Bonne tte uses J AWS, s he spends c onsiderable ener g y listening to JAW S describe inf ormation about the pa g e layout and how the text is st ructura lly org anized. Id. This allows Bonne tte to visualiz e a pic ture of the pag e and g ener al layout of the text in her mind. Id. Acc ordingto Dr. Alexis G. Malkin, an optometrist who has evaluated Bonne tte, she would be at a sig nificant loss if she ha d to rely on serial a

uditory input of tex t without any

ability to effic iently

conce ptualize the pag e layout or structure of the text that she needs in orde r to fully

compre hend the mate rial. Id. ¶ 13. Acc ordingto Fre dric K. Schr oeder , a re sear ch prof essor a t San Dieg o State University who works in the f

ield of vocational reha

bilitation, s cre en re adingsoftwar e has be come a n essential auxiliary

aid for blind individuals in today ’s technology -driven soc iety
. See Dec l. of Fr edric K. Schroe der ( “Schroe der D ecl.” ) ¶ 28. Schools, employ ers, voc ational re habilitation profe ssionals, and institut ions widely provide this acc ommodation to bli nd individuals. Id. Dr. Schroede r explains that the functionality of scr een a cce ss software can pr ovide g reater e fficie ncy , proficie ncy , automaticity , privac y , and indepe ndence than the use of a human r eade r. Id. Dr. Schroede r fur

ther e x plains that the proce ss of lear ning to r ead w ith a human re ader takes extensive practice and tra ining. Id. ¶ 21. Dr. Schr oeder states that most blind i ndividuals who
are computer pr oficient a nd who did not learn B raille a s a child ar e advise d to use scre en ac cess softwar e as a

primary rea ding me thod. Id. ¶ 22. Scre en ac cess softwa re c an be c ustomiz ed to meet ea ch re ader ’s spec ific nee ds. For e x ample, an individual who wa s primarily a visual re ader and lea rner befor e losing her vision may rely on scre en ac cess softwa

re that offer s some visual
7input in conjunction with auditory output. Id. ¶ 23. F or such r eade rs, transitioning to solely audio intake c an take months or even year s. Id. Once a blind person de velops profic iency using
scre en ac cess softwa

re, the proce ss of rea ding be comes a utomatic, allowingthe re ader to
conce ntrate on a cquiringthe content of the information rather than f ocusingon the proc ess of how to rea d. Id. ¶ 24. C. Plaintif

f’s Past Use of Auxiliary Aids Whil e B onnette wa s in law school betwe en 2001 and 2003, she was off ere d only human
rea ders a s an ac commodation for e x aminations, despite the fa ct that J AWS was her primar y
rea ding me thod. Bonne tte Dec l. ¶ 18. Bonne tte believes that her g rade s from law sc hool ref lected he r inability

to rea d examination tex t using human r eade rs. Id. By contra st, in her other g raduate studies at Pepper dine, B onnette wa s able to use JAW S to write complex papers and work on a ssigne d projec ts. Id. ¶ 19. B onnette believe s that her grade s from her g raduate prog ram more acc urate ly

ref lect her actua l abilities rather tha n her ina bility to rea d text
. Id. Prior to law school, B onnette used a human re ader

to take the L aw School Admission Test (“L SAT”). See Bonne tte Dec l., Ex . C at 44. In November

2001 and ag ain in August 2002, Bonnette took the MPRE, which wa s administered by

NCBE through a contr actor . Moeser Dec l. ¶ 9(b). To a ccommodate her visual impairment duringthe Novembe r 2001 examination, Bonnette w as provided w ith a human
rea der, a private te sting room, stop-the- clock br eaks, a nd double testing time. Id. ¶ 9(c ). F or the August 2002 administration, Bonnette wa s provided with a human r eade r, a pr ivate testingroom, a tra nscriber /writer, a nd double testing time. Id. On the August 2002 MPR E, Bonne tte achie ved
a scor e suff

icient to qualify

for a dmission t o the bar

in ever y jurisdiction that requires the MPRE.
8Id. ¶ 9(d) . On the Nove mber 2001 MPRE, she ac hieved a score that would qualify

in some but not all jurisdictions. Id. Bonne tte took the California B ar Examination four times betwe en Jul y 2003 and Jul y 2005, duringwhich she w as re quired to use a human re ader

as an a ccommodation. B onnette Dec l. ¶ 20; Moeser D ecl. ¶ 9(e) . Acc ordingto NCBE’s r ecor ds, Bonne tte’s sca led score on the MBE por tion of those examinations rang ed fr om 132 to 142. Moeser De cl. ¶ 9(e ). To
succe ssfully

pass the D.C. B ar Examination, applicants must achieve a total sca led score of 266 or g reater, whic h is an ave rag e sca led score of 133 on the MB E and on the e ssay portion. See D.C. Ct. App. R. 46(b)(10)(i) . Bonne tte did not successfully pass the California

Ba r Ex amination. Bonne tte Dec l. ¶ 20. Bonne tte believes that her fa ilure to pass wa s due in part to her ina bility to effe ctively

rea d the content of

the examination. Id. Since last takingthat test in J uly 2005, Bonne tte has not had the oppor tunity to work with a human r eade r in the conte x t of testing. Id. Bonne tte found it very

difficult, frustra

ting, a nd humiliating to work with human re ader s on the California B ar Examination and duringher la w school examinations. Bonnette D ecl. ¶ 22. Acc ordingto Bonne tte, human re ader s often misunderstood what, where , and how she wanted them to rea d, mispronounced or misread wor ds, and suddenly halted their spe ech when they encounte red a

technica l leg al term with which the y wer e unfa

miliar. Id. Bonne tte also found that the per formanc e of a human re ader

deter iorated ove r the longhours of re adingrequire d for the bar examination. Id. In addition, Bonne tte explained that human rea ders of ten had diff

iculty
rea ding when she r equeste d that they rea d consec utive sentenc es in reve rse or der. Id. These imperfe ctions and problems ultimately cause d Bonne tte to break her c oncentr ation and shift her
9attention to the perf ormanc e of the rea der. Id. After g radua ting f rom Pepperdine , Bonne tte worke d as a pr og ram spec ialist with t he Depa rtment of Ve tera

ns Affa irs and as a

projec t coordinator w ith the National Association of Guide-D ogUsers. B onnette De cl. ¶ 21. B onnette re lied on J AWS for the vast majority of her work-r elated r eading
. Id. Bonne tte did use human re ader s, howeve r, to fill out forms and re ad small amounts of hand-wr itten material whe re the leng th of textto be re ad wa s no more than a few pag es. Id. Bonne tte has neve r used a n audio CD to take a

n examination. Bonne tte Dec l. ¶ 17. Bonne tte claims that she is not familiar with that method of r eading , and ther efor e she w ould not be able to prec isely

operate the contr ols to read by char acte r, word, phr ase, line, se ntence , para g raph, a

nd pag e. Id. Although B onnette has ha d minimal ins truction in Br aille, she doe s not have the Br aille skills necessar y to rea d complex or aca demic text in an ex amination setting. Id. ¶ 15. D. Plaintif

f’s Reque st for Accommodations on the D.C. Bar Exam ination On or a bout Dece mber 29, 2010, B onnette submitted a re quest for te sting
acc ommodations for the F ebrua ry 2011 administration of the D.C. B ar Examination. Bonne tte Dec l. ¶ 27. Bonne tte submitt ed docume ntation of her disa bility and aske d for the f

ollowing
acc ommodations: (1) use of a laptop computer w ith a word proc essor a nd J AWS for Wi ndows speec h softwar e to re ad aloud the te x t of examination questions and to write outlines in org anizing essa

y response s; (2) double time; (3) a separ ate testingroom; (4) a scribe to f

ill out require d paper

work or c omputerized answer sheets that re quire ova ls to be filled in using a pencil; and ( 5) stoppere d bottles of drinking water available as nee ded in ar ms leng th of the
10key

board. Id. , Ex . C at 46-47. The Committee g rante d Bonne tte’s re quests with respec t to the MEE and MPT portions of the D.C. B ar Examination. Id. ¶ 28. With respect to the MB E, the Commi ttee g rante d Bonne tte’s re quest for double time, a sepa rate testing r oom, a scribe , and told her that she could bringin her own w ater as we ll as her own e rg onomic chair
. Id. , Ex . D. Howeve r, the Committee denied B onnette’s r equest to use a laptop equipped with JAW S for the MBE be cause it was not permitted by NCBE. Id. ; Dix Dec l. ¶ 14. The Committee offe red Bonne tte the use of a

n audio CD or a huma

n rea der who is an attorney . Bonne tte Dec l., Ex . D. Be cause Bonne tte did not feel c omfortable w ith the proposed human r eade r or a udio CD
acc ommodations, Bonnette withdre w from the F ebrua ry 2011 administration and told the Commi ttee that she pla

nned to take the examination in J uly 2011. Bonne tte Dec l. ¶ 29; Dix Dec l. ¶ 15. Bonne tte submitt ed her application for

the J uly 2011 examination on May 10, 2011, ag ain re questing the use of a computer w ith J AWS as an acc ommodation for her disability
. Bonne tte Dec l. ¶ 30; Dix Dec l. ¶ 16. After a ser ies of neg otiations between the Commi ttee and Bonne tte’s counse l, the Commi ttee off ere d Bonne tte the followingacc ommodations for the Jul y 2011 MBE: a

udio CD, live reade r, and B railled or la rg e print ver sions. Dix Dec l. ¶ 16. The Commi ttee has a lso offer ed to provide B onnette with a sample CD in advanc e of the examination so that she ca

n prac tice with it; to allow Bonnette to mee t with the attorney who would serve as a
rea der in a dvance of the e x amination; additional testing time beyond the double time re quested; and additional re st breaks. Id. ¶ 17. NCB E has dec lined to allow the use of JAWS on the MBE even if the Commit tee r eimburses NCB E for a ny costs associate d with such ac commodation. Id. ¶ 18. NCBE ha s had no intera ctions with Bonnette in c onnection with any reque st for
11acc ommodation she has made f or the D.C. B ar Examination, including the MB E. Moeser Dec l. ¶ 9(f ). NCB E is not involved in processingor eva luating a pplications to take the D.C. B ar Ex amination or dec iding individuals reque sts for ac commodations on the exam. Id. ¶ 8. Bonne tte has worke d hard f or many y ear s to prepar e for

the pra ctice of

law. B onnette Dec l. ¶ 35. Practicinglaw is Bonne tte’s dre am and c hosen prof essional g oal, and she is unwilling to ac cept inac curate assessments of he r ac tual abilities based on her capa city to rea d using me thods other than her primary rea ding me thod. Id. Bonne tte fee ls that she will be humiliated and frustra

ted if she is for ced to take the MBE using a rea ding me thod other than J AWS, as she was re quired to do duringlaw school a nd on the California B ar Exam. Id. Bonne tte has set aside most of the summer to study for the July

2011 administration of the D.C. Ba r Examination. Id. ¶ 36. She is enrolled in a bar pr epar ation class and ha s been dilig ently studying f or the e x am. Id. Bonne tte is foreg oing inc ome by studying a

nd prepa ringfull time for the exam rather

than locatingemploy

ment opportunities outside the leg al field. Id. E. Administrati on of the MBE Using JA W S In J uly 2008, NCBE c onducted a pilot progr am involving a single examinee in California to offer the MBE on an NCB E-owne d laptop loaded with JAW S. Moeser De cl. ¶ 10(b) (i). The pilot progr am was e x panded in July 2009 to include two examinees in North Carolina a nd one in California. Id. After

revie wingthe pilot prog ram, NCB E conc luded that it was not curr ently fea sible to ex pand the pr og ram on a larg e sca le. Id. ¶ 10(b) (ii). NCBE believes that there a re signific ant, unavoidable security risks relatingto administering se cure , paper -and- pencil examinations on l aptop computer s. Id. Specifica lly , NCBE is conc erne d that there is not a sufficie ntly

secur e wa

y to administer the exam via laptop unless NCBE pr ovides its own laptops.

12See id. ¶ 11. NCB E believe s that if it allowed examinees to use their own laptops, it could not

eff ectively preve nt test questions from beingcopied onto the ha rd drive of

the laptops or ensur e that the laptops wer e wiped c lean of the test questions after

the examination. Id. ¶ 11(b) . NCBE also believe s that some secur ity risks will remain eve n if NCBE pr ovides its own laptops beca use laptops will be in the custody of the a dminist eringjurisdiction, and NCBE c annot kee p trac k of whether the examination is copied elec tronically
. Id. ¶ 11(c )-( e). N CBE a cknowledg es that there
are also secur ity

risks with administering pa per ve rsions of the MB E. Id. ¶ 11(d) . Acc ordingto Michae l Shamos, Disti ng uished Care er Prof essor in the School of Computer Scienc e at Car g enie Mellon University , who has e x tensive experienc e with elec tronic voting sy stems, the secur ity
conce rns ra ised by

NCBE c an be e asily

reme died throug h prec autions such as pa ssword
encr y ption and observation by

proctors. See Dec l. of Michae l Shamos ¶¶ 27-37. Profe ssor Shamos believes that with these pr eca utions, itwould be virtually impossibl e for

the sec urity

of the MBE to be compromised without the collusion of the e x aminers—a risk that is equally prese nt for pape r-ba sed examinations. Id. ¶ 38. In 2009, one visually

impaired e x aminee in Califor nia, Stephanie Enyart, sued N CBE, seekingto take the MB E and the MPRE on a laptop computer using both JAW S and Z oomText , a scr een ma g nification softwa re pr og ram. Moeser

Dec l. ¶ 10(c) . The district cour t in California g rante d a pre liminary

injunction requiringNCBE to off er the MBE a

nd MPRE i n her r equeste d format. Id. After

she fa iled both examinations , the district court grante d her a second preliminary

injunction. Id. The Ninth Circuit aff irmed the district cour

t’s issuance of

the injunctions. See E

nyart v. Nat’l Conference of Bar Examiners , 630 F.3d 1153 ( 9th Cir. 2011). Three visually

impaired e x aminees f

iled a similar lawsuit in 2010 in the District of Mary land, but
13the cour

t orally denied their

reque st for a pr eliminary injunction. Moeser De cl. ¶ 10(c ). One of those examinees filed a

second suit in California see king a ccommodations on the California bar examination, and the district court g rante d his request for a pre liminary

injunction. See E lder v. Nat’l Conf

erenc e of Bar Exam iners , No. C-11-00199, 2011 WL 672662 (N.C. Cal. Fe b. 16, 2011). NCB E offe red the MBE pur suant to these injunctions. NCBE c ontends that there are signific ant costs associated with loadingsoftwar e onto additional computers, e nsuringtheir ac cura cy , and explaining the pr ocess to administering jurisdictions. Moeser De cl. ¶ 10(b) (ii). NCBE has ca lculated that pr oviding a n NCBE la

ptop for the MBE costs approximately $5000 per e x aminee, inc luding the c ost of hardw are , softwar e, shipping, a

nd time devoted by

NCBE’ s testing a

nd I T staff. Id. ¶ 12(a ). In fiscal year 2010, NCBE ha d approximately $12.3 milli on in income and its expenses totaled $12.1 million. Id. ¶ 14. The Court of

Appea ls offer ed to re imburse NCBE for the c ost of administeringthe MBE to Bonne tte with J AWS, but NCBE de clined. Dix Decl. ¶ 18. The Court of Appea ls rece ived an operations budge t of $185,660,000 in fiscal year 2011. Dec l. of J ulio Castil lo ¶ 4. F. The Importanceof Offering Plainti ff the Opportunity to T

ake theMBE with JAW

S In support of her

motion for a pre liminary injunction, Bonnette ha s provided the Court with declar ations from a va riety of experts who believe that only scre en ac cess softwa

re suc h as J AWS wil l allow Bonne tte to perfor m effe ctively

on the MBE . For

example, Dr. Malkin believes that based on his re view of B onnette, a huma n rea der or

audio CD would not provide Bonne tte with effe ctive ac cess to the MB E. Malkin Dec l. ¶ 14. Dr. Ma lkin ex plains that neither a human r eade r nor a

n audio CD would permit B onnette to pre cisely navig ate ba ckwa

rds or forwa rds by char acte r, word, se ntence , para g raph or pag e as she curr ently

does whe n rea ding
14with J AWS. Id. ¶¶ 17- 18. There fore , it is t he prof essional opinion of Dr. Ma lkin that only
scre en ac cess softwa

re suc h as JAW S will allow Bonnette to ac cess the MB E and be st ensure that her r esults on the examination will acc urate ly ref lect her aptitude rather than he r disability
. Id. ¶ 19. Dr. B ruce Br itton, P rofe ssor Emeritus of Cog nitive Psy cholog y at the Univer sity

of Geor g ia, has a lso evaluate d Bonne tte. See Dec l. of Br uce B ritton (“B ritton Decl.” ) ¶ 5. He has observe d her usingJ AWS and believes that she is fluent with the pr og ram. B ritton Decl. ¶ 8. H e explains t hat B onnette uses JAW S to adjust t he spee d with which the program voc alizes tex t as she re ads, slowingdown to enhanc e compr ehension. Id. In rea ding a nd analy zing a multiple choice question with a list of answer s following it, B onnette uses ke y commands to jump from an
answe r choic e bac k to the question, skipping over answe rs she ha s alrea dy

ruled out. Id. Dr. Br itton ex plains that the complexit y of the proc ess nec essar

y to solve questions on the MBE makes it essential for

Bonne tte to have f

acilities that are of nea

rly equivalent f

unctionality

as those aff orded to a sighte d rea der. Id. ¶ 10. Dr. B ritton believes that JAW S will best ensure that Bonne tte’s test results ac curately ref lect her aptitude rather than r efle ctingMs. Bonne tte’s sensory impairment. Id. Dr. B ritton ex plains that the problem-solvingskills t ested by the MBE require a lar g e number of r eg ressions, or “ look-bac ks,” at pre viously encounte red te x t elements, many more than ordinary text . Br itton Decl. ¶¶ 11- 12. Dr. B ritton ex plains that regressions ar e important for the MBE be cause the test requir es examinees to hold toge ther in their minds diffe rent e lements from widely separ ated pa

rts of the text to analy

ze a sing le complex problem. Id. ¶ 13. Dr. B ritton explains t hat memory

deca y proce sses beg in to occur immediate ly afte r a te x t element is
15proce ssed, and the a mount of deca

y is proportional to the amount of time that has pa ssed and the amount of interve ning material. Id. There fore , slower r egressingmovement will result in more deca y and interf

ere nce, le adingto lower pe rfor mance levels. Id. Fur

thermore , Dr. B ritton explains t hat the bra in’s workingmemory —which is used to per form a se ries of me ntal operations such as verba l comprehe nsion, comparison, memory retrie val, and judg ing—ha s less capa city than is require d to solve questions on the MBE. Id. ¶¶ 15- 16. There fore , an examinee must often ref

er ba ck to the text in s olving e ach que stion. Id. ¶ 16. The pr ocess of evaluating
eac h answe r choic e re quires the same sort of re g ressions bec ause e ach possible a nswer ma y require the content of

the question to be proc essed in a dif fer ent context. Id. ¶ 17. Dr. B ritton ex plains that for a visual rea der who can se e text, reg ressions ar e
acc omplished by

nearly instantaneous eye movements, so ver y littl e memory

deca y occur s. Br itton Decl. ¶ 18. When B onnette uses sc ree n acc ess softwar e such a s J AWS, reg ressions occ ur by rapid ke y strokes with adjustments, so a moderate amount of memory deca y occur s. Id. I f a human speaker is used to re ad text to Bonnette, re g ressions occ ur much more slowly beca use Bonne tte must first formulate a r equest to re g ress, c ommunicate that to the spea ker, a llow for the speake r to interpre t the reque st, and then ca rry out the reque st. Id. The amount of time lost throug h this process is substantial. Id. Dr. B ritton opines that even more time would be lost using a n audio CD bec ause the proce ss of scanningwith fast-for war d or re wind functions is less prec ise than ver

bal commands g iven to a human r eade r. Id. ¶ 21. Dr. B ritton also expl ains that sighte d rea ders have the a dvantag e of be ing a ble to visually skim through text, a proce ss that can be achie ved through the use of JAWS but not with a human
rea der. B ritton Decl. ¶ 19. D r. B ritton further e x plains that when a skill i s prac ticed intensively
16over longperiods of time, it bec omes automatized. Id. ¶ 20. Automatized rea ding r equire s less

workingmemory

capa city and lea ves more c apac ity

available for other

aspec ts of the task. Id. There fore , to the extent that Bonnette ha s prac ticed re adingwith J AWS but not other alter native
rea ding me thods, her re adingwill be more a utomatiz ed. Id. Dr. B ritton believes that the additional cog nitive demands of usinga re adingmethod other than he r primar y rea ding me thod would neg atively

aff ect B onnette’s test pe rfor mance compar ed to her

peer s. Id. ¶ 33. B ased on these obser

vations, Dr. B ritton concludes that sc ree n acc ess softwar e such a s J AWS i s the only
rea sonable a ccommodation that would best e nsure that he r re sults on the MBE will acc urate ly ref lect her aptitude rather than he r disability
. Id. ¶ 34. II. LEGAL STANDARD A. Motion for Preliminary Injunction A pre liminary

injunction is “an extraordinary reme dy that may only be aw arde d upon a clea r showingthat the plaintiff is entitled to such re lief.” W inter v. Natural Res. Def. Council, Inc. , 555 U.S. 7, 129 S. C t. 365, 376 (2008). A plaintiff se ekinga pre liminary injunction must establish (1) that she is likely to succe ed on the mer its, (2) that she is likely to suffer irrepa rable harm in the a

bsence of pre liminary

relief , (3) that the ba lance of the e quities tips i n her f avor, a nd (4) that a n injunction would be in the public interest. Id. at 374. “The four f actor s have ty

pically been e valuated on a

‘sliding sc ale.’ ” Davis v. Pe nsion Benefit Guar. Corp. , 571 F.3d 1288, 1291 (D.C. Cir. 2009). Unde r this slidi ngscale , “[i] f the movant make s an unusually strongshowing on one of the fac tors, then it does not nece ssarily have to make as stronga showingon another fac tor.” Id. at 1291-92. “It is particularly

important for the [movant] t o demonstrate a substantial likelihood of
17succe ss on the merits.” Barton v. District of Col umbia, 131 F. Supp. 2d 236, 242 (D.D .C. 2001)

(citing Benten v . Kessler , 505 U.S. 1084, 1085 (1992)). I f the movant fa ils to do so, i nquiry into the re maining f

actor s is unnecessa

ry , for the injunctive r elief must be de nied on that ground alone. See Transohio Sav. Bank v. Dir., Off. of Thrif

t Supervision , 967 F.2d 598, 614 ( D.C. Cir. 1992) (a ffirmingdenial of pr eliminary injunction where the district court prope rly conclude d that the plaintiff had “ no likelihood of succe ss on the merits”); Katz v. Georgetown Univ. , 246 F.3d 685, 688 (D.C. Cir. 2001) (“ [A] lthough we apply a four -fa ctor test in weighing a reque st for a preliminary

injunction, such relief

never will be g rante d unless a cla imant can de monstrate ‘a fair g round for

litigation.’” ) (quoting W

ash. Metro. Area Transit Comm’n v. Holiday Tours, Inc. , 559 F.2d 841, 844 ( D.C. Cir. 1977); Taylor v. Resolution Trust Corp. , 56 F.3d 1497, 1507 ( D.C. Cir.) (“G iven the inade quacy

of [plaintiff] ’s prospec ts for succ ess on the mer its, there may be no showing of irre para

ble injury that would entitle him to inj unctive re lief.”) , amende d on other grounds on reh’g , 66 F.3d 1226 ( D.C. Cir. 1995). In addition, the movant must establish that irrepa rable injury

must be likely , “not just a possibili ty .” W inter v. Natural Res. Def. Council, Inc. , 129 S. Ct . 365, 375 (2008). B. Motion to Dismiss Under the Fe dera l Rules of Civil Procedur e, a c omplaint mustcontain “a short and plain statement of the c laim showing that the pleade r is entitled to relief,” Fe d. R. Civ. P . (8)( a), “ in order to ‘g ive the def

endant f air notice of what the . . . claim is and the g rounds upon which it rests.’” Bell Atl. Corp. v. Tw ombly , 550 U.S. 544, 555 (2007) (quoting Conley v. G ibson , 355 U.S. 41, 47 (1957)). A lthough “ detailed f actua l alleg ations” ar e not nec essar y to withstand a Rule 12(b)(6) motion to di smiss for failure to state a c laim, a plaintiff must furnish “more than
18labels and c onclusions” or “ a for mulaic re citation of the e lements of a c ause of action.” Id. “Nor does a c omplaint suffice if it tende rs ‘naked asse rtion[s ]’ devoid of ‘fur ther fa ctual enhanc ement.’” Ashcroft v. Iqbal , 129 S.Ct . 1937, 1949 (2009) ( quoting Twombly , 550 U.S. at 557). Rather , a complaint must contain suffic ient fac tual alleg ations that, if acc epted a s true, “state a claim to relief

that is plausible on its face.” Twombly , 550 U.S. at 570. “A c laim has fac ial plausibilit y

when the pla intiff pleads fa ctual conte nt that allows the court to dra w the
rea sonable infe renc e that the de fenda nt is li able f

or the misconduct a lleg ed.” Iqbal , 129 S.Ct
. 1949 (citing Twombly , 550 U.S. at 556). When consideringa motion to dism iss for fa ilure to state a c laim, the court “ must acce pt as true a ll of the fac tual alleg ations contained in the c omplaint.” Erickson v . Pardus , 551 U.S. 89, 94 (2007) ( per c uriam). “ The c omplaint mustbe libera lly construed in f

avor of the plaintiff, who must be g rante d the bene fit of all infer ence s that can be derive d from the f acts a lleg ed.” Schuler v . United States , 617 F.2d 605, 608 ( D.C. Cir. 1979) (interna l quotation marks omitted). Howeve r, a pla intiff must provide more than just “a sheer possibili ty

that a def endant ha s acte d unlawfully .” Iqbal , 129 S.Ct . at 1950. When a complaint’s we ll-pleade d fac ts do not enable a court, “ draw [i ng ] on i ts judicial ex perie nce a nd common sense,” “to infer more than the mere possibili ty

of misconduct,” the complaint has not shown that the plea der is entitled to re lief. Id. C. Motion for Summary Judgm ent “The court shall g rant summary judgme nt if the movant shows that there is no ge nuine dispute as to any

materia l fac t and the movant is entitled to judgme nt as a matter of law.” Fe d. R. Civ. P . 56(a)
. A party asser

ting that a fac t cannot be or is g enuinely disputed must support the asser tion by : 19(A) cit ing to particula r parts of materia ls in the rec ord, including depositions, documents, elec tronically stored information, aff idavits or decla

rati o n s , stipulations (including those made for purposes of the mo t i o n o n l y ), admissions, interrog atory answe rs, or other materia ls); or (B ) showing that the materia ls cited do not establish the ab s ence or prese nce of a g enuine dispute, or that an a dverse party cannot pr oduce a dmissibl e evide nce to support the f act. Fe d. R. Civ. P . 56(c) (1). “ I f a pa rty fails to proper ly

support an asse rtion of fa ct or fa ils to proper ly addre ss another pa

rty ’s asser

tion of fac t as requir ed by Rule 56(c) , the cour

t may
. . . consider the fac t undisputed for purpose s of the motion.” Fe d. R. Civ. P . 56(e) . When consideringa motion for summary judgme nt, the court may

not make cr edibility

deter minations
or we igh the evidenc e; the evide nce must be a naly zed in the light most favora ble to the nonmoving pa

rty , with all justi fiable infe renc es dra wn in his favor. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255 (1986). “I f mater ial fac ts are at issue, or, thoug h undisputed, are susceptible to diverg ent infer ence s, summary judgme nt is not available.” Moore v . Hartman , 571 F.3d 62, 66 ( D.C. Cir. 2009) (citation omitted). The mer e existence of a

fac tual dispute, by

itself, is insufficient to bar summar y judgme nt. See Liberty Lobby, I nc. , 477 U.S. at 248. “Only disputes over fa cts that might a ffe ct the outcome of

the suit under the g overninglaw will proper ly prec lude the entr

y of summary judgme nt.” Id. For

a dispute about a

materia l fac t to be “g enuine,” there must be sufficient admissible evidence that a re asonable trier of fac t could find for the nonmoving pa rty
. Id. The Court must determine “whe ther the e vidence prese nts a sufficie nt disag ree ment to require submissi on to a jury

or whe ther it is so one-sided that one party must prevail as a

matter of la

w.” Id. at 251-52. “ I f the e vidence is merely colora ble, or is not sufficie ntly

probative, summar

y judgme nt may

be grante d.” Id. at 249-50 (inter nal citations omitted). The a dverse party must

20“do more than simply show that there is some metaphy sical doubt as to the mater ial fac ts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586 (1986). Conclusory
asser tions offere d without any fac tual basis in the rec ord ca nnot cre ate a

g enuine dispute. See Ass’n of Flight Attendants-CW A v. U.S. D ep’t of Transp. , 564 F.3d 462, 465- 66 (D.C. Cir. 2009). III. DISCUSS ION Bonne tte contends that the Court of A ppeals a nd the NCBE are require d by the Americ ans with Disabilities Act and its implementing r egulations to let her take the MBE usinga computer e quipped with J AWS. Defenda nts disagr ee w ith Bonnette’ s interpre tation of the ADA and conte nd that the ac commodations they have of fer ed her , particula

rly the option of using a human re ader

or an a udio CD, are a dequate as a matter of law . Additionally , Def endant NCB E contends that the A DA’s a cce ssibili ty mandate doe s not apply

to it because it is notthe entity that is offer ing the MBE to B onnette. B eca use of the e merg ency

nature of the re lief re quested by Bonne tte, the Court shall analy ze the four f

actor s releva

nt to Bonnette’ s motion for preliminary injunction and addre ss Defe ndants’ dispositive motions in the context of the first prongof the analy sis. A. Likelihood of Success on the M erits 1. The AD A and Gove rningRegulations The Ame rica

ns with Disabiliti es Ac t is broadly aimed at e liminating discrimination ag ainst individuals with di sabilities. See 42 U.S.C. § 12101(b)(1). Title I Iof the AD A prohibits discrimination in the provision of public service s by state and loc al g overnme nts (including the District of Columbia), see 42 U.S.C. §§ 12131-12165, and Title I I Iof the AD A prohibits discrimination in public accommodations and c erta in service s opera ted by private e ntities, see id.
21§§ 12181-12189. Specific ally , Title I Iprovides that “no qua lified individual with a disability

shall, by rea son of such disability , be excluded fr om participation in or be de nied the bene fits of the servic es, programs, or a ctivities of a public entity , or be subjec ted to discrimination by such entity .” Id. § 12132. I mplementing r egulations promulgated by the Depa rtment of Just ice f

urther clar ify public entities’ obliga

tions under the ADA : A public entity , in providing any aid, benef it, or service , may not, direc tly or throug h contra ctual, licensing , or other a rra ng ements, on the ba sis of disability

—

. . . Provide a qualified individual with a disability with an aid, benef it, or service that is not as effective in affor ding e qual opportunity to obtain the same re sult, to gain the same benef

it, or to rea ch the same level of achie vement as that provided to others[.] 28 C.F.R. § 35.130(b)( 1) (e mphasis added)
. A public entity may not administer a licensing or cer tification prog ram in a manner that subjects qualified individuals with disabiliti es to discrimination on the basis of disability , nor may a p u b l i c entity establish require ments for the prog rams or activit ies of licensee s or cer tified entities that subject qualified individuals with disabiliti es to discrimination on the basis of disability
.

. . . A public entity shall make re asonable modifications in policies, prac tices, or proce dures when the modifications are nece ssary to avoid discrimination on the basis of disability , unless the public entity can demonstrate that making the modifications would fundame ntally

alter the nature of the ser vice, pr og ram, or a ctivity
. Id. § 35.130(b)( 6)-( 7). (a) (1) A public entity shall take appropr iate steps to ensure that communications with applicants, participa

nts, members of the public, and companions with disabiliti es are as effective as communications with ot hers.

. . . (b)(1) A public entity shall furnish appropr iate auxil iary aids and servic es wh er e 22nece ssary to aff ord i ndividuals with disabiliti es , i n cluding applicants, participants, companions, and members of the public, an equal opportunity to participate in, and enjoy the bene fits of, a ser

vice, pr og ram, or a ctivity of a public e ntity
. (2) The ty pe of auxil iary aid or service nece ssary to ensure eff ective communication will vary in acc ordanc e with t he method of c ommunication used by the individual; the nature , leng th, and complexit y of the communication involved; and the c ontext in which the communication is taking place
. In deter mining what ty

pes of auxil iary aids and service s are nece ssary , a public entity shall g ive primary considera tion to the reque sts of individuals with di sabilities. In order to be eff ective, auxil iary aids and service s must be provided in acc essible formats, in a ti mely manner , an d i n s u ch a way as to protec t the privac y

and indepe ndence of the individual with a disability
. Id. § 35.160 (empha sis added). The se implementing reg ulations must be “g iven controlling weig ht unless they

are arbitra

ry , capr icious, or manife stly contra ry to the statute.” Chevron U.S.A. Inc . v. Natural Res. Def. Council, Inc. , 467 U.S. 837, 844 (1984). The parties a g ree that these provisions apply

to the Court of Appea ls as a public entity
. Title I I Iof the AD A also conta ins a provision that specific ally addre sses examinations such as the Multistate B ar Exam: “Any person that of

fer s examination or courses re lated to applications, licensing , cer tification, or cr edentialingfor se condar y or post-sec ondary

educa tion, profe ssional, or trade purposes shall off er suc h examinations or courses in a pla ce a nd manner
acc essible to persons with disabilities or offe r alter native ac cessible a

rra ng ements for

such individuals.” 42 U.S.C. § 12189. The Court of Appea ls argues that it is not a “per son” within the meaningof this provision and that the place ment of this provision in Tit le I I Irathe r than Title I Isug g ests that the provision does not apply to public entities. Howeve r, “[a]lthough Title I I I g ener ally applies only

to private e ntities, the ex amination provision has unanimously been he ld to apply to public entities, and specif ically to state bar e x aminations.” Bartlett v. N.Y . State Bd. of Law Examiners , 970 F. Supp. 1094, 1128-29 (S.D.N.Y . 1997) (Sotomayor, J.), vacate d in part

23on other grounds , 226 F.3d 69 ( 2d Cir. 2000). This interpre tation is consistent with t he

definition of “pe rson” in Title I of the AD A, which include s public entities. See 42 U.S.C. § 12111(7). F urthermor e, the languag e of § 12189 is consistent with the nondiscrimination mandate in Title I Iand its acc ompanying r egulations. Acc ord Nondiscrimination on the B asis of Disability in State and L ocal Gove rnment Service s, 75 Fe d. Reg . 56,164, 56,236 (Sept. 15, 2010) (statingthe J ustice De partment’s position that public entities are also cove red by § 12189). There fore the Court holds that § 12189 applies to the Court of Appea ls.

2. NCBE’ s Motion to Dis miss NCBE c ontends that § 12189 does not apply to it because it does not “offe r” the MBE within the meaningof the statute. NCB E arg ues that it is the Court of Appea ls that “offe rs” the MBE be cause the Court of Appe als administers the examination and NCBE is merely a vendor that provides testingmateria ls. NCBE has move d to dismi ss the claim asser ted ag ainst it on thi s basis. Both Plaintiff and the Court of Appea ls oppose NCBE’ s motion t o dismiss . As the Court of Appe als points out in i ts oppositi on brief, N CBE imposes strict conditions on the use of the MBE f or the D.C. B ar Exam, which includes pr ohibitions on the use of a computer. A s a prac tical matter, the fac ts sugg est that NCBE “ offe rs” the MB E in conjunction with the Court of Appea ls for purpose s of the D.C. B ar Exam. NCBE inter prets the “ place and manne r” la ng uag e in § 12189 as applying only to aspec ts of test administration (such as site sele ction or elig ibilit y criter ia) that a

re se para te from the a ctual testingproce dure. B ut that narrow interpre tation is not supported by

the J ustice De partment’s implementingregulation, 28 C.F.R. § 36.309, which states in part that “[r]equired modifications to an ex amination may include cha

ng es in the leng th of time permitted for c ompletion of the examination and adaptation in the manner in which the
24examination is g iven.” 28 C.F .R. § 36.309(b)(2) . There fore , to the extent that NCBE exercises

control over

the manner

in which the examination is given, it is subject to § 12189. The Court 2 shall deny

NCBE’ s motion t o dismiss beca use the que stion of whether NCBE of

fer s the MBE is a fa ctual one not a

ppropriate for r esolution through Rule 12( b)(6)
. Fur thermore , based on the 3
rec ord pre sently

befor e the Court, it appea rs that Plaintiff is likely

to establish that NCBE off ers the MBE for pur

poses of § 12189. 3. The “ Be st Ensure” Re g ulation The pa rties have focuse d much of their br iefingon the implementing r egulation for § 12189, which re ads in rele vant par t as follows: (1) Any private entity offe ri n g an ex amination cover ed by this section m ust assure that— (i) The examination is selec ted and administered so as t o b es t ensure that, when the examination is administered to an individual with a disability that impairs sensory , manual, or speaking skills, the examination results acc urate ly ref lect the individual’s aptitude or achie vement level or whateve r other fac tor the examination purports to measure , rathe r than ref lecti n g the individual’s impaired sensory , manual, or speaking skills (except wher e th o se skills are the fac tors that the examination purports to measur e);

. . . (2) Required modifications to a n examination may include chang es in the leng th of time permitted for completion of the examination and adaptation in the manner in which the e x amination is give n.

NCBE a lso sugg ests that § 12189 applies only to “public ac commodations” as de fined 2 in Title I I I

of the AD A and a

rgues in the alter

native that Title I I Iregulations applicable to public acc ommodations would not require NCB E to alter or modify the g oods or servic es it offe rs. See NCBE B r. at 16-18. H oweve r, § 12189 cle arly applies to “a

ny person” that offe rs examinations, not just publ ic ac commodations. There fore , the Title I I Iregulations gove rningpublic acc ommodations have no direc t bear ing on the leg al issue pre sently befor e the Court. In addition, Plainti ff ha s reque sted the opportunity to eng ag e in discover

y on this iss ue. 3 25(3) A private entity offe ring an exam i n at i o n cover ed by this section shall provide

appropr iate au x i liary aids for persons with impaired sensory , manual, or speaking skills, unless that private entity can demonstrate that offe ring a particular aux iliary aid would fundame ntally alter the measure ment of t he skills or knowledg e the examination is intended to test or would result in an undue burden. Auxi liary aids and service s require d by this section may include taped examinations, interpre ters or other eff ective methods of making orally delivere d materia ls available to individuals with hear ing impairments, Br ailled or larg e print examinations and answe r sheets or qualified rea ders for individuals with visual imp ai rm ents or lear ning disabiliti es, transcr ibers for individuals with manual impairments, and other simil ar service s and actions. 28 C.F.R. § 36.309(b) ( emphasis adde d). B y its own terms, this regulation applies only to private entities such as NCB E. Howe ver, the J ustice De partment ha s expl ained that the T itle I I I regulation is “useful as a

g uide for de termining what constitutes discriminatory conduct by

a public entity

in testing situations.” See Nondiscrimination on the B asis of Disability in State and L ocal Gove rnment Service s, 75 Fe d. Reg . at 56,236 (Sept. 15, 2010). Ac cording ly , the languag e in 28 C.F.R. § 36.309 is persuasive if not bindingauthority reg ardingthe Court of Appe als’s obligations to offer the MB E in an ac cessible manne r. With respect to NCB E, howeve r, the Court must defer to the Justi ce D epar tment’s regulation interpretingthe re quirements of § 12189. Chevron , 467 U.S. at 844. The Court disag ree s with NCBE’s a rgument that the “be st ensure” require ment in the regulation exceeds the c lear limit s of the ADAand is not entitled to defer ence ; the statutory

require ment that examinations be offer ed “in a place and manne r ac cessible to persons with disabilities” is sufficiently ambiguous that the Court must respect the Justice Depa rtment’s interpr etive re g ulations. See E nyart v. Nat’l Conf. of Bar Examiners , 630 F.3d 1153, 1161-62 (9th Cir. 2011).

4. Def

endants’ Motions for Summary J udg ment Def endants c ontend that the ac commodations they have of fer ed B onnette—which inc lude
26using a

human re ader

or an a udio CD with ex tra time—ar e ade quate a s a matter of law and there fore they

should be awa

rded summar

y judgme nt. Defe ndants point to the fact that their offe red a lternatives a

re inc luded on the lists of auxi liary aids specif

ically descr ibed in the ADA and its implementing re g ulations. See 42 U.S.C. § 12103(1) (def ining “ auxil iary

aids and service s” as including“qualifie d rea ders, tape d text s, or other e ffe ctive methods of making visually delivere d materia ls available to individuals with visual impairments”); 28 C.F.R. § 36.309(b)( 3) (including“tape d examinations” and “B railled or la rg e print examinations and
answe r shee ts or qualified re ader s for individuals with visual impairments” as auxiliary aids and service s that may

be re quired). H oweve r, these lists are illust rative, not e x haustive, and the fac t that other qua lified individuals with vis ual impairments may have use d them does not mean that they are acc essible to Plaintiff as a matter of law. See 42 U.S.C. § 12103(1) (including“other simil ar se rvice s and ac tions” within definition of “auxil iary aids and ser

vices” ); 28 C.F.R. § 36.309(b)( 3) (same). As the N inth Ci rcuit re cently explained in Enyart v. Nat’l Conferenceof Bar Examine rs , “[t] o hold that, as a matter of law, a n entity fulfills its obl iga

tion to adminis ter a

n exam in an acc essible manner so long a s it offers some or all of the a

ux iliary aids enumer ated in the statute or r egulation would be inconsistent with Congre ssional intent.” 630 F.3d at 1163-64. The leg islative history

sug g ests that Congr ess explicitl y contemplated that the auxil iary aids and service s provided to individuals with disabili ties would “kee p pace with the rapidly chang ing technolog y

of the times.” Id. at 1164 (quotingH.R. Rep. No. 101-485(I I ), at 108 (1990) , reprinted in 1990 U.S.C.C.A.N. 303, 391). Def endants a lso contend that they are entitled to judgment a s a matter of law bec ause their prof fer ed ac commodations were approve d by the J ustice De partment in the c ontext of
27settlement ag ree ments with other testing entities. NCBE c ites SBC Communications Inc. v. FCC ,

407 F.3d 1223 ( D.C. Cir. 2005), for the pr oposition t hat the cour ts “treat settlements betwee n an ag ency and a pr ivate par

ty as equiva lent to ag ency

regulations for def

ere nce pur

poses.” Id. at 1230. Howeve r, that ca se involved the F CC’s interpretation of its own prior se ttlement ag ree ment with the litigant at issue, not a se ttlement ag ree ment that was a pplied to bind the actions of third pa

rties. The Justi ce D epar

tment’s decision to settle a r egulatory violation with a third party

does not establish a de finitive interpre tation of that regulation to which this Court owes de fer ence . Def endants a rgue that the AD A re quires only that they provide a “re asonable ”
acc ommodation to make the MBE acc essible to Bonne tte. Def endants re ly

primarily on Fink v. N.Y . City Dep’t of Personne l , 855 F. Supp. 68 (S.D.N.Y. 1994) , aff’d , 53 F.3d 565 ( 2d Cir. 1995), and Jaramillo v. Professional Examination Servic e, Inc

. , 544 F. Supp. 2d 126 (D. Conn. 2008). Howe ver, the plaintiffs in both Fink and Jaramillo broug ht claims under Sec tion 504 of the Voca tional Rehabilitation Act, 29 U.S.C. § 794(a), which e x plicitly embra ced a

“re asonable
acc ommodation” standard thr oug h its im plementingregulations. See45 C.F.R. § 84.12. This standard w as borr owed a

nd adopted f

or use in Title I

of the AD A, which pr ohibits di scrimination in employ ment by requiringemploy ers to provide “re asonable acc ommodations” to qualified individuals with di sabilities. See42 U.S.C. § 12112(b)(5). A s the Ninth Circuit ex plained in Enyart , howeve r, Cong ress did not incorpor ate this standar d into § 12189. See630 F.3d at 1162. There fore , the ca ses cited by Def endants that re ly

on this standard, such a s Carter v. Benne tt , 840 F.2d 63 ( D.C. Cir. 1988), are not controlling. F urthermor e, althoug h Title I Iregulations do specify that public entities must make “re asonable modifications” to policies, pra ctices, a nd
28proce dures, this g ener al standar d does not overr ide the more specific regulatory g uidance relating to the testing c ontext
. Def endants ne x t rely

on regulatory

g uidance specify

ing that they

are not require d to give an examinee he r re quested a ccommodation. The Court ag ree s that the ADA doe s not require Def endants to provide B onnette with the auxiliary aid that she re quests. See B urkhart v. W ash. Metro Area Transit Auth. , 112 F.3d 1207, 1213 ( D.C. Cir. 1997) (“N othing in the AD A itself or its im plementingregulations dictates that a disable d individual must be provide d with the ty

pe of auxil iary aid or ser vice he reque sts.”). Althoug h 28 C.F.R. § 35.160(b)( 2) re quires public entities to “g ive primary

consideration to the requests of the individual with disabilities,” an individual’s reque st “nee d not be honore d if ‘anothe r ef fec tive means of c ommunication exi sts.’” Burkhart , 112 F.3d at 1213 (quoting 28 C.F .R. app. § 35.160). “Whether a par ticular for m of communication is ‘as e ffe ctive’ a s another is not judg ed on an a bsolute scale, but r ather

is a contextual determination based on the ty pe of c ommunication and number of people involved a s well as the importanc e of the communication.” Id. (citing28 C.F.R. app. § 35.160). In addition, the Court must consider fa ctors such a s the method of communication used by the individual and the nature , leng th, and complexity of the c ommunication involved. 28 C.F.R. § 35.160(b)(2)
. Def endants a lso cite regulatory g uidance from the Justi ce D epar tment expl aining , in the context of Title I I Iregulations applicable to public a ccommodations, that “[t] he auxiliary aid require ment is a flexible one” and that “[u] se of the most adva nced te chnolog y

is not required so long a s eff

ective c ommunication is ensured.” 28 C.F.R. pt. 36, App. B at 727-28 (2010). Howeve r, this guida

nce is not direc tly

applicable here beca

use § 12189, despite be ing house d in Title I I I , applies broa dly

to all “per sons” and not just public acc ommodations. The J ustice

29Depa

rtment has conc luded that, “[b]ased on a ca ref ul reviewof the AD A leg islative history , . . . Congr ess did not intend under title I I Ito impose upon a public ac commodation the re quirement that it give pr imary

considera

tion to the request of the individual with a disabilit y .” Id. at 728. The “ primary

consideration” require ment is a part of the Title I Iregulation, however , see 28 C.F.R. § 35.160(b)( 2), and, a s expl ained be low, that require ment is arguably incorporated into § 12189 throug h the “be st ensure” languag e in its impl ementingreg ulation. Def endants a lso ask the Court to focus on re g ulatory g uidance from the Equa l Employ ment Opportunity

Commi ssion (“EEOC”) reg ardinga provision in Title I of the AD A that define s discrimination to include: failing to selec t and adminis ter tests conce rning employ ment in the most eff

ective manner to ensure that, when such test is administered to a job applicant or employ ee who has a disability that impairs sensory , manual, or speaking skills, such test results acc urate ly ref

lect the skills, ap t i t u d e, or whateve r other fac tor of such applicant or employ ee that such test purports t o measure , rathe r than ref lecting the impaired sensory , manual, or speaking skills of such employee or applicant (except wher e such skills are the fa ctors that the test purpor ts to measure)
. 42 U.S.C. § 12112(b)(7). The languag e in this provision is s imilar to that used in 28 C.F.R. § 36.309(b)( i), using the phrase “most eff ective” instead of “ best ensure .” The EEOC has explained that “[t] his provision does not require that an employer of fer ever y applicant his or he r choice of test format. Rather, this provision only require s that an employ er pr ovide, upon advanc e re quest, alternative, acc essible tests to individuals wit h disabiliti es that impair sensor y , manual, or spe akingskills needed to take the test.” 29 C.F.R. pt. 1630, App. at 386 (2010)
. All of this guidanc e mer ely confirms that ne ither Title I Inor Title I I I of the AD A re quires Def endants to provide B onnette with her reque sted ac commodation simply beca use it is the
acc ommodation she most prefer s. It does not establish that Defe ndants’ prof fer ed alter

natives ar e 30sufficie nt as a matter of law. A lthough they

differ slightly in their languag e, both the Title I I regulations applicable to the Court of A ppeals (thr oug h the “pr imary consideration” require ment) and the Title I I Iregulation applicable to NCB E (throug h its “best ensure ” re quirement) r equire that Bonne tte be provide d with an ac commodation that is at least “a s eff ective” as her

pref err ed
acc ommodation. Theref

ore, if B onnette ca

n establish that the alter

native ac commodations offe red to he r by

Def endants do not make the MBE acc essible to her in the same way that J AWS does, then De fenda

nts must provide her with J AWS unl ess they can e stablish that doing so would fundame ntally

alter the nature of the e x amination or constitute an undue burden. As the D.C. Circuit noted in Burkhart , whether a par ticular a ccommodation is “a s eff ective” as anothe r depe nds on context. 112 F.3d at 1213. For example, in American Association of People with Disabil ities v. Shelley , 324 F. Supp. 2d 1120 (C.D. Cal. 2004), c ited by Def endants, the c ourt ruled that Title I Iof the AD A did not require the State of California to maintain direc t rec ordingelec tronic voting sy stems that allowed visually impaired individuals to cast votes indepe ndently

and sec retly . The c ourt explained that while “c astinga vote independe ntly

and sec retly

would be pre fer

red ove r ca sting a

vote with the assistance of a f amily member or

other a ide[,] . . . the ADA doe s not require acc ommodation that would enable disabled per sons to vote in a manner that is compara

ble in ever

y way with the voting r ights enjoy ed by

persons without disabilities.” Id. at 1126. There fore , in the voting c ontext , 4
acc ommodations may

be ef fec tive if they

enable the voter to unde rstand the c hoices on the ba llot
The Court notes that 28 C.F.R. § 35.160 wa s rec ently amende d so as to require that 4 auxil iary aids and ser

vices be provided “ in such a wa y as to protec t the privac y

and indepe ndence of the individual with a disability .” The amende d regulation casts some doubt on the ong oing validity of the rulingin Shelley
. 31and ca st a vote. B y contra st, in the testing conte x t, particular ly with respec t to tests li ke the MB E that assess cr itical rea soning skills, the information beingconveyed is far more c omplex and voluminous and require s more extensive interac tion by the individual with disabili ties. Under such circ umstances, it is essential that the c ontent of the que stions and the answe r choic es be communicated to the e x aminee in a clea r and e fficie nt manner so that the e x aminee c an ca ref ully evaluate the choic es and se lect an a nswer w ithin the tim e allotted for the examination. The Court must consider the e ffe ctiveness of Def endants’ of

fer ed ac commodations in this contex t. 5. The Ef

fec tiveness of Ac commodations Offe red to B onnette Bonne tte has provided the Court with a substantial amount of evidenc e indicating that a laptop equipped with JAW S would be the most effe ctive ac commodation for he r visual impairment, as it would enable her to e asily compre hend the test items on the MB E, scan thr oug h text like a sig hted re ader , rer ead c ritical portions of questions and a nswer c hoices, a djust the speed of her r eading , pick up clues a bout the visual lay out of the text, and focus on the c ontent of the examination rather tha n on the method in which she is taking it. Defe ndants do not dispute the evidenc e provide d by Bonne tte that she is a visual lea rner and that JAW S is her primary
rea ding me thod. Nor do De fenda nts deny that providing Bonne tte with her re quested
acc ommodation would be the “be st” outcome for her in ter ms of acc ommodating he r visual impairment. Rather, D efe ndants argue that their a lternative a ccommodations, i.e., a human
rea der or an audio CD , are adequate under the ADA a

nd its im plementingregulations. 5 Bonne tte has explained why she believe s that a human re ader would not be an e ffe ctive

Def endants do not ar gue that their othe r off ere d acc ommodations, such as a lar g e print 5 or B raille for

mat examination, would be acc essible to Bonne tte. 32acc ommodation for her . Bonne tte has a doc umented history of diffic ulties communicating with human re ader s about how to rea d and re rea d text in an examination setting. Althoug h Def endants have off

ere d Bonne tte an attorne y as a r eade r and the opportunity to meet with the
rea der in a dvance of the e x amination, these proposa ls will noteliminate the diffic ulties associate d with learningthe spee ch patter ns of the re ader

and adjustingto that method of rea ding duringthe cour se of the e x amination. The e vidence in the rec ord sug g ests that Bonne tte will be at a sig nificant disadva

ntag e if for ced to r ely

on a human r eade r bec ause she will be distracted by this unnatural method of re ading , meaningthat her r eadingwill be less automatic and ma y disrupt her c ritical re asoningskills, which are e ssential for a ny examinee takingthe MBE
. Def endants a rgue that B onnette’s history of usinghuman re ader s on the L SAT, duringlaw school, and for

the California ba

r exam demonstrates that it is an appr opriate a ccommodation for her. B ut the fac t that Bonne tte previously was re quired to re ly

on human re ader s does not establish that human re ader s would make the MB E ac cessible to her . The fa ct that B onnette could take the MB E using a

human re ader

does not mean tha

t this accommodation would best
ensure that her sc ore r efle cted he r ac hievement leve l rather than her visual impairment; Bonne tte is entitled to an auxi liary

aid that allows her

to perfor m at her a chieve ment level, not just one that might be g ood enoug h for he r to pass. F urthermor e, Title I I regulations require that auxil iary aids be provide d “in such a

way as to protec t the privac y

and indepe ndence of the individual with a disability .” 28 C.F.R. § 35.160(b) (2). Huma n rea ders of

fer less privac y

and indepe ndence than either a n audio CD or JAW S. Be cause it offer s Bonne tte more c ontrol and indepe ndence than a human r eade r, an a udio CD appea rs to be a muc h better a

ux iliary aid for he r. Howe ver, B onnette is not experience d at
33using a

n audio CD, and e ven thoug h she has be en off ere d the opportunity

to prac tice usingan audio CD befor e takingthe MBE , she is likely to have more difficulty

using that method than she would with J AWS. Furthermore , the re cord indicates that J AWS provides Bonnette w ith much
more c ontrol and func tionality , such as the a bility to skim t ext and the ability to learn c lues about how the text is arr ang ed visually on the pag e. As Dr . Br itton persuasively explained in his decla ration, the memory

capa city and re asoningskills necessar y to answer

questions on the MBE require that an examinee be able to ea sily rer ead pa rts of the que stion and the answe r choic es. Due to B onnette’s f

luency with J AWS, s he is able to use that software to reg ress through text in a
manner simil ar to that of a

sighte d rea der. U sing a

n unfamiliar r eadingmethod such as a n audio CD would divert some of B onnette’s menta l proce ssing powe r to the method by which she w as
rea ding the examination rather than its conte nts. Def endants a rgue that B onnette ca

nnot be ce rtain that usingJ AWS wil l be better for he r than using an audio CD or a human re ader , citing soc ial scienc e re sear ch sug g esting that blind individuals’ prefe renc es for a par ticular testingformat do not alwa y s alig n with their perf ormanc e. The studies cited by Def endants a re inc onclusive, howe ver, a nd they do not direc tly addre ss the circ umstances pr esente d by Bonne tte in this specific ca se. B onnette has provided the Court with dec lara tions from sever al experts who have evaluated her persona lly

and whose prof

essional opinion is that Bonnette would be disadvantag ed if she w ere require d to use either a human re ader

or an a udio CD for the MB E. Def endants objec t to this testimony as speculative, but the Court finds their testimony to be per suasive and c redible, a nd the Court is satisfied that their opinions are sufficie ntly g rounded on the ir individual evaluations of B onnette

34and/or their know ledg e and e x perie nce in their rele vant fields. The Court also notes that 6 Def endants have not pre sented the Court with any expert testimony

rebuttingtheir finding s. In light of this evidenc e in the re cord r eg ardingBonne tte’s par ticular ne eds and the nature of the MB E, the Court finds that Bonne tte is likely to succe ed in demonstratingthat the
acc ommodations offere d by Def endants a re not a cce ssible to her within the meaningof the applicable ADA r egulations. The Court notes that its determination is not final and is based on the pre sent rec ord submitted by the par ties. Ultimately , the par

ties may develop a

more c omplete
rec ord re g ardingthe ef

fec tiveness of the a

udio CD option compared to JAW S, which may result in a diffe rent de termination. But B onnette nee d only demonstrate a

substantial likelihood of
succe ss on the merits, and the Court finds that she ha s satisfied that threshold. Def endants c omplain that if they are require d to offer

Bonne tte the cha

nce to take the MBE usingJ AWS, t hey

will necessa

rily be re quired to provide B onnette with another
acc ommodation if, for example, she fa ils the MBE duringthe J uly 2011 administration and see ks to retake the MBE later w ith a slightly differ ent ver sion of the softwar e. As the Court e x plained above, how ever , the Court does not rea d the ADA r egulations as requiringDef endants to off

er Bonne tte her r equeste d acc ommodation in every instance. I

n this case, B onnette has limited her reque st to taking the MB E using a laptop equipped with JAW S (in addition to t he other
acc ommodations such as double time that have been grante d by the Court of Appe als), and onc e Def endants off

er that acc ommodation, they will have satisfied the ir obligations under the statute.

Def endants a rgue that F redr ic Schroe der la cks the re quisite personal knowle dg e to opine 6 on what ac commodations will work best for B onnette. The Court does not rely on Schroede r’s opinion reg ardingthis iss ue bec ause unlike D rs. Malkin and B ritton, he has not per sonally examined Bonne tte. 35NCBE c ontends that eve n if Bonne tte can e stablish that J AWS i s the only eff ective
acc ommodation for her , she is never theless unlikely

to succe ed on the mer its of her AD A claim beca use off eringthat acc ommodation would amount to an undue burde n on NCBE. NCBE c ites 7 the cost and a dminist rative bur den of a dminist eringthe exam secure ly as re asons for f

inding a n undue burde n. The Court is not persuade d by NCBE’ s argument. Although N CBE ha s raised some valid secur ity

conce rns about off

eringthe MBE in a computer -base d format, the r ecor d sug g ests that NCBE is able to take mea sures to ensur e that the e x am is administered at least as
secur ely as its paper -and- pencil ver sion of the MBE . The Court is also not persua ded that the roug hly $5000 cost of administeringthe MBE with J AWS consti tutes an undue bur den for an org anization whose operating budg et exceeds $12 million, particular ly wher e those c osts may
cover ed by

the Court of Appe als, which ha s not raised a n undue burde n arg

ument in this specific
case . There fore , based on the prese nt rec ord, the Court finds that NCB E’s undue bur den def ense is not strong e noug h to defe at B onnette’s c laim. For these re asons, the Court finds that B onnette is likely to succe ed on the merits of her claim. B eca

use the undisputed fa cts do not establish that Defe ndants will prevail on the mer its, the Court shall deny

Def endants’ motions for summar y judgme nt. The Court shall now consider the other f

actor s releva

nt to determining whether preliminary

injunctive relief

is warr anted. B. Irreparable Harm The sec ond prongof the pre liminary injunction analy sis requires that the plaintiff demonstrate that she will likely suffe r irre para

ble har m in the absenc e of a

n injunction. The

Def endants c ould also preva il on the merits by demonstratingthat J AWS would 7 fundame ntally

alter the nature of the MB E. Howe ver, D efe ndants do not make this argument. 36plaintiff must demonstrate that “ [t ]he injury complained of

is of such imminencethat there is a ‘cle ar a nd prese nt’ nee d for e quitable re lief to preve nt irrepa rable harm.” Chaplaincy of Full Gospel Churches v . England , 454 F.3d 290, 297 ( D.C. Cir. 2006) (quoting W isc. Gas Co. v. FERC , 758 F.2d 669, 674 ( D.C. Cir. 1985) (per curiam)). F urthermor e, “the injury must be beyond reme diation.” Id. Bonne tte contends that she w ill suffer irr epar able injury in the absenc e of a

n injunction beca use she will either

be for ced to take the J uly 2011 MBE unde r discriminatory conditions or have to wa it until at least the F ebrua ry 2012 administration while her c laim is li tigated. B eca use Bonne tte cannot pr actice law until she succe ssfully passes the D .C. Bar

Ex amination, any

delay in taking the MBE de prives her of time to prac tice her

chosen pr ofession. The lost opportunity to eng ag e in one’ s pref

err ed occ upation g oes beyond monetary deprivation. See E

nyart , 630 F.3d at 1166 (af firmingfinding of irre para ble har m based on plaintiff’ s inability to prac tice law w ithout
succe ssfully

passingbar e x amination). Bonne tte has bee n trying to be come a licensed attorney 8
Def endants c ite sever al ca ses wher e the c ourt found that the plaintiff w ould not suffer 8 irrepa rable harm if de nied the opportunity to sit for a bar

examination. See Ke lly v. W . Va. Bd. of Law Examiners , Civil Action No. 2:08-00933, 2008 WL2891036 (S.D. W. Va. J uly 24, 2008); O’Brien v . Va. Bd. of Bar Examine rs , No. 98-0009-A , 1998 WL391019 (E.D. Va . J an. 23, 1998); Pazer v. N.Y

. State Bd. of Law Examiners , 849 F. Supp. 284 (S.D.N.Y. 1994) . Two of these c ases a

re f actua lly distinguishable. I

n O’Brien , the cour

t held that there was no irr epar able harm be cause even if

the plaintiff passe d the bar exam, the state board of

bar e x aminers c ould still deny him a license to pra ctice la w bec ause he had fa iled to complete his cha rac ter a nd fitness application. 1998 WL391019 at *2. In Pazer , the cour t found there was no irr epar able ha rm in part be cause the plaintiff had a lrea dy obtained g ainful employ

ment with a law f

irm. See 849 F. Supp. at 288. I n the third ca se, the c ourt appe ars to have merg ed the irr epar able ha rm inquiry with the merits inquiry , finding that there was no irr epar able ha rm bec ause the testing acc ommodations offere d to the plaintiff wer e suff icient, and so it is less persuasive authority
. See Ke lly , 2008 WL2891036 at *2.

37for many

y ear s since she obta ined her law degree , and this fac t makes fur ther de lay more irreme diable, not less as De fenda nts urg e. F urthermor e, B onnette has de voted substantial time and ef fort to pre paringfor the July 2011 MBE, which will have be en ef fec tively wasted if she must wait to take the test at a later date. See A granoff v. Law Sch. Admission Council, Inc. , 97 F. Supp. 2d 86, 88 (D. Mass. 1999) (f inding irr epar able ha

rm based in pa

rt on the lost time and eff ort in prepa

ringfor a n exam). These c onsiderations indicate that Bonne tte will likely suffe r irrepa rable harm if she unable to take the J uly 2011 MBE. Def endants a rgue that B onnette ca

nnot show that she is likely to suffer irrepa rable harm beca use it is possibl e that she w ill pass the D.C. Bar Ex am usingeither a

human re ader

or an audio CD on the MB E. See, e .g. , Baer v. Nat’l Bd. of Me d. Examine rs , 392 F. Supp. 2d 42, 48- 49 (D. Mass. 2005) (noting that irrepa rable harm wa s uncer

tain beca use examinee mig ht pass the test without her re quested a ccommodation). B ut forcingPlaintiff to take the MB E under discriminatory

conditions is it self a f

orm of irre para

ble injury
. See E lder v. Nat’l Conferenceof Bar Examine rs , No. C 11-00199 SI , 2011 WL672662, at *10 (N.D . Cal. Fe b. 16, 2011) (“ Taking the exam without a computer e quipped with J AWS . . . would force [plaintiff] to t ake the exam under discr iminatory

circ umstances–a

result that, in and of itself w ould cause plaintiff irre para ble harm.” ) (c iting Chalk v. United States Dist. Ct. Cent. Dist. of Cal. , 840 F.2d 701 ( 9th Cir. 1988)); D’Amic o v. N.Y

. State Bd. of Law Examiners , 813 F. Supp. 217, 220 (W.D.N.Y. 1993) ( finding that “ong oing disc rimination [ ag ainst plaintiff] based on her me dical disability ” constituted irrepa rable injury); cf. Mills v. District of Col umbia , 571 F.3d 1304, 1312 ( D.C. Cir. 2009) (“[T]he loss of constituti onal fre edoms, ‘for even minimal per iods of time, unquestionably

38constitutes irrepa rable injury .”). The Court cre dits Bonnette’ s testimony in her de clar ation that she will be humiliated and fr ustrated if she is require d to take the MB E using a rea ding me thod that is not her natura l rea ding me thod. Bonne tte cannot r ecove r dama g es for these ha rms, beca use the AD A provides that the sole reme dy available to her is injunctive re lief. See42 U.S.C. § 12188(a). The ref ore, the Court finds that Bonne tte is likely to suffer irrepa rable harm in the abse nce of

a pre liminary

injunction. C. Balance of the Equities The third fa ctor the Court must consider is the ba lance of the e quities. As noted above, Bonne tte is likely

to suffer irrepa rable harm if the Court doe s not gr ant a pr eliminary injunction. Def endants a rgue that they

too will suffer se rious harms if the Court orde rs them to make the MBE a vailable to B onnette on a la ptop equipped with J AWS. S pecif ically , NCBE ha s complained that it will be takinga sec urity risk in making the MBE a vailable in a c omputerbased f ormat and that it will incur substantial costs. Howe ver, N CBE ha s previously offe red the MBE in this format pur suant to court orde rs, and the r ecor d indicates that NCB E ca n offe r the MBE se cure ly

on its own laptops and with appropriate protocols. F urthermor e, De fenda nts will not be unfa irly

burdene d by

the costs of providingthe MBE beca use B onnette has voluntee red to post a $5000 bond to cover the estimated c osts. Theref ore, the Court finds that the balanc e of the equities strong ly

favor s Bonne tte. D. Public Intere

st The fina l fac tor in the preliminary injunction analy sis is t he public intere st. Bonnette contends that the public inter est supports issuance of an injunction beca

use the public ha s a stronginterest in ensuringthat the antidiscrimination aims of the ADA are satisfied. De fenda

nts
39argue that the public a lso has an intere st in ensuring that the attorne y licensure proce ss is secure and re liable. Howe ver, a s noted above , the Court is not persuade d that the sec urity of the MB E will be compromised if De fenda nts are r equire d to provide the e x am to Bonne tte in a computer

based f ormat bec ause the re a

re me asure s that can be taken to administer the e x am sec urely
. There fore , the Court finds that the public intere st factor tips in favor of B onnette. IV. CONCLUSION Ba sed on the for eg oing a

naly sis, the Court finds that Bonnette is likely to succe ed on the merits of her

claim; that Bonne tte is likely to suffer irrepa rable harm if injunctive r elief is not g rante d; that the balanc e of the equities tips in Bonnette’s f avor; a nd that the public intere st supports the issuance of a pr eliminary injunction. Theref

ore, the Court concludes that Bonne tte has satisfied the r equire ments for pre liminary injunctive relief

, and the Court shall orde r Def endants to off

er B onnette the oppor

tunity to take the MB E using a

laptop equipped with J AWS during the July

2011 administration of the D.C. B ar Examination. The Court shall order Bonne tte to post a $5000 bond to cover the costs of complianc e with the injunction. Be cause the Court finds that Bonne tte has stated a claim ag ainst NCBE, the Court sha ll deny NCBE’ s motion to dismi ss. The Court shall also deny Def endants’ motions for summar y judgme nt beca

use the undisputed fac ts do not establish that Defenda nts are e ntitled to relief. An a ppropriate Orde r
acc ompanies this Memorandum Opinion.

Date: J uly

13, 2011 /s/ COL L EEN KOL L AR-KOTELL Y United States District J udg e 40