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Bar Examiners Ordered to Adapt for Blind Law Grad

(CN) - A testing company must let a legally blind law school graduate take the bar examination using assistive software, the 9th Circuit ruled Tuesday, upholding a lower court's preliminary injunction.

The National Conference of Bar Examiners (NCBE) and ACT testing company refused Stephanie Enyart's requests to use assistive technology software on the Multistate Professional Responsibility Exam and the Multistate Bar Exam three times before she sought the injunctions.

Enyart, a 2009 graduate of the University of California at Los Angeles School of Law, has been legally blind since age 15. She has Stargardt's disease, a kind of macular degeneration that causes blind spots and sensitivity to light, all of which are gradually getting worse, according to the ruling.

In 2009 Enyart asked the NCBE three times for permission to take the two tests using assistive screen reader and magnification software known as JAWS (Job Access With Speech) and ZoomText.

The NCBE and ACT refused Enyart's requests, however, noting that the test was not available in an electronic format. NCBE instead offered to accommodate Enyart with a live reader or an audio CD of the exam and closed-circuit television.

Arguing that closed-circuit television makes her nauseated and a live reader would make it difficult for her understand the test material, Enyart rejected the offers.

Enyart sued the NCBE, ACT and the State Bar of California in California federal court for violations of the Americans with Disabilities Act and state civil rights laws.

She asked the court to order the NCBE to allow her to use a computer equipped with ZoomText and JAWS, presenting a sworn statement from her ophthalmologist to back up her software preferences.

Finding that the accommodations provided by the NCBE were not sufficient to make the test accessible to Enyart, and that she would be kept from pursuing her chosen profession if her requests were not met, U.S. District Judge Charles Breyer granted a preliminary injunction and ordered NCBE to provide the software. He required Enyart to put up a $5,000 bond to cover the costs in case the NCBE eventually proved that the injunction was illegal.

The NCBE appealed, and while the case was pending Enyart took and failed the Multistate Professional Responsibility Exam (MPRE) and the bar exam. She requested a second preliminary injunction to take the tests again, which the court granted. Enyart has since received a high enough score on the August 2010 MPRE to qualify for admission to the California Bar but she failed to pass the July 2010 California Bar Exam, according to the ruling.

Regardless of her scores on the tests, however, the injunctions ordering the NCBE to accommodate Enyart with assistive software hold up, the federal appeals panel in San Francisco ruled Tuesday.

"The district court did not err in concluding that Enyart would likely lose the chance to pursue her chosen profession," Judge Barry Silverman wrote for the three-judge panel. "If she fails the bar exam or scores too low on the MPRE to qualify for admission, Enyart cannot be licensed to practice law in California. This conclusion is not speculative, but rather is prescribed by California law."

The appeals court also backed the federal judge's conclusion that, without an injunction, Enyart faced more difficulty than that faced by NCBE in accommodating her.

Though NCBE argued that Enyart's requested accommodations were expensive and posed a security concern, Enyart posted two $5,000 injunction bonds to cover NCBE's costs if it prevails on the merits at trial, the court found.

The injunction also minimized security risks by requiring Enyart to use an NCBE laptop.

"Compared to the likelihood that Enyart would suffer irreparable harm by losing the chance to pursue her chosen profession in the absence of an injunction, the potential harm to NCBE resulting from injunctive relief was minimal," Silverman wrote.

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