By Professor Michael Waterstone
Today, the Ninth Circuit announced its opinion in Enyart v. National Conference of Bar Examiners, and important disability rights case. Several months ago, I blogged about this case here.
Stephanie Enyart, a law graduate who is blind, sued the National Conference of Bar Examiners under Title III of the Americans with Disabilities Act for the right to take the bar exam with assistive technology software (known as JAWS and ZoomText). Enyart prevailed at the District Court level, getting a preliminary injunction to take the exams using this assistive software. The Ninth Circuit affirmed the District Court.
The National Conference of Bar Examiners offered different accommodations than those Enyart requested (the choice of a live reader or an audio CD of the exam, along with the use of a closed-circuit television for text magnification), and argued that this satisfied its obligations under the ADA. Enyart presented evidence, which the District Court accepted, that she would suffer eye fatigue, disorientation, and nausea if she used the closed circuit television, and that the live reader or audio CD were insufficient to allow her to effectively comprehend and retain the language used on the exam. The Ninth Circuit, after giving Chevron deference to a regulation providing that private entities giving exams must assure that the exam is administered so as to best ensure that the exam results accurately reflect the individual's aptitude or achievement level, held that the accommodations offered by the National Conference of Bar Examiners were not sufficient, and that Enyart was entitled to her requested accommodations.
This is an important case. Not because all law graduates who are blind will get the accommodations that Ms. Enyart requested; the Court was actually quite clear that each case requires an individualized analysis, and that accommodations that make an exam accessible to many blind people may not make the exam accessible to any one blind individual. This is a key to why this case is significant - it ensures that the National Conference of Bar Examiners (or other organizations that administer licensing exams) will need to take an individual's circumstances into account in providing accommodations, rather than just assuming there is a one-size-fits-all solution for particular disabilities.
Would-be lawyers who are blind, like all would-be lawyers who have disabilities, face many barriers to gain access into our profession. These include getting needed accommodations for the LSAT, attitudinal barriers and stigma while in law school, and discrimination in getting the all-important first job out of law school. These all contribute to a legal profession that is not representative of our society: although good data is hard to come by, one recent study found that only 7% of the members of the American Bar Association identified themselves as having a disability, (far below the rate of disability prevalence in the general population). This decision helps clarify that the ADA requires fair treatment in at least one step of the process of becoming a lawyer.