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Friday, March 05, 2010

Greetings

My name is Michael Waterstone, and I teach at Loyola Law School in Los Angeles.  I am also one of our associate deans.  My research is primarily in disability and civil rights law, and I also teach civil procedure and employment law.  This is my first venture into blogging, and I'm pleased to be visiting Prawfs with my colleagues Kurt Lash and Sasha Natapoff.  In fact, pretty much everything I know about blogging I learned from Sasha in a tutorial she kindly provided me a few days ago (all mistakes, it goes without saying, are my fault and not hers). 

For my introductory post, I wanted to highlight the case of Stephanie Enyart.  During a time of year when many students are recovering from just having taken the bar, Stephanie had to work a good bit harder than most to secure the pleasure of taking the test.  Stephanie is a graduate of UCLA Law School who is blind.  In law school, she used a computer equipped with screen reading software (called JAWS) and screen magnificent software (called ZoomText) for exams.  She requested these accommodations for the bar exam, providing extensive documentation as to why they were needed.  The State Bar of California approved Stephanie's request for the sections of the exam it controls.  But the National Conference of Bar Examiners, which administers the multistate and MPRE parts of the bar, declined.  Based on security fears, it offered a series of different accommodations.  Stephanie submitted evidence that these accommodations would not allow her to take the bar without severely impacting her exam performance.

Represented by a top flight legal team, Stephanie brought a claim under the Americans with Disabilities Act in the Northern District of California.  About two weeks before the bar exam, the court granted Stephanie's motion for a preliminary injunction, finding that Stephanie's request was reasonable and that the NCBE's concerns about security could be minimized by allowing Stephanie to take the exam on an NCBE computer.  Apparently feeling that the world might come to an end if Stephanie was allowed to take the bar with her requested accommodations, the NCBE made Stephanie's last two weeks of bar prep a little more interesting by seeking an emergency ruling from the Ninth Circuit suspending the District Court's order.  They argued that forcing Stephanie to wait until July to take the bar did not pose a hardship on her.  They were unsuccessful, and Stephanie was able to take the February bar.  While awaiting bar results, Stephanie is working as a Skadden fellow at Disability Rights Advocates in Berkeley.   

Posted by Michael Waterstone on March 5, 2010 at 10:24 AM | Permalink

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Comments

Dear Orin,

Thanks for the comment. In this specific case, NCBE offered several accommodations: CCTV to magnify the print exam and human reader to read the text aloud; a large-print exam in addition to an audio CD with the test questions pre-recorded; the use of JAWS (but not ZoomText) for the MBE portion of the exam (as part of a "pilot program,"); double the standard time; a private room; a five minute break every hour, a scribe to fill in answers, use of Enyart's lamp, a large print digital clock, sunglasses, a yoga mat, and a migraine medication. Enyart's evidence that these accommodations would not be effective (in addition to her testimony that using a CCTV for sustained reading causes eye fatigue, nausea, and disorientation) included documentation from her vocational rehabilitation counselor, treating opthamologist, law school dean, and an assistive technology specialist. It is worth noting that at least based on my read of the case, the NCBE was not arguing that Enyart's requested accommodations would give her an unfair advantage. Rather, they were worried about security breaches if she used the combination of JAWS and ZoomText.

More generally, I agree with your characterization of the rough sense of a lot of readers that accommodations are sometimes reflexively granted, even if they give an "unfair advantage," to avoid lawsuits. I sometimes wonder what that rough sense is based on - in my limited experience, schools seem to require fairly extensive documentation before accommodations are granted. I have seen that there is a "set" universe of accommodations - usually extra time - and while administrators feel comfortable giving these, anything outside of that universe draws more scrutiny. And it does seem like professional testing companies or associations tend to take a harder line on requests for accommodations than schools, although that is probably a generalization. What I have seen first hand is students who are hesitant to ask for accommodations, out of a sense of not wanting "special favors" or for fear of being stigmatized by other students. Although requests for accommodations are supposed to be confidential, my sense is that the student networks usually have a pretty good idea of what is going on.

Posted by: Michael Waterstone | Mar 8, 2010 10:24:49 PM

Michael,

I appreciate the post, although I 'm curious: What where the NCBE's proposed accommodations, and what was the submitted evidence alleging that the NCBE's accommodations were insufficient?

More broadly, I'd be interested in your take on the broader question of accommodations for test taking. I think a lot of readers have the rough sense that often these accommodations are a bit overly accommodating, and that institutions would rather give students whatever they want -- even if it gives them an unfair *advantage* -- rather than face a lawsuit. Of course, I'm not saying that happened here; it didn't. But I wonder if this is the rare case, and if the more interesting cases are the cases of the general counsels for universities and test-taking companies that would rather give in to sometimes-unreasonable demands than face the prospect of costly litigation.

Posted by: Orin Kerr | Mar 8, 2010 2:42:56 AM

Dear anon,

People with visual disabilities are a diverse group. I don't claim to know the ins and outs of what each person might request by way of reasonable accommodation, but I am guessing there may not be a one-size-fits-all answer here. In this case, Ms. Enyart submitted affidavits that although she could use close circuit television (CCTV), one typical form assistive technology for people who are blind, she could not use it for sustained reading without suffering nausea and eye fatigue.

Posted by: Michael Waterstone | Mar 7, 2010 11:56:19 PM

I am wondering: does this mean that all blind test-takers are given insufficient accommodations on the MPRE? Or does Ms. Enyart have some unusual requests beyond what most blind test-takers need?

Posted by: anon | Mar 6, 2010 10:07:30 PM

You're a natural, Michael. Welcome to the blogging world.

Posted by: Paul Secunda | Mar 5, 2010 10:54:34 PM

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