As computer technology continues to make rapid advances, the issue of what constitutes an appropriate accommodation for test-takers under Title III of the ADA is being re-examined by the courts.  Specifically, in the case of Enyart v. National Conference of Bar Examiners, Inc., the U.S. Court of Appeals for the Ninth Circuit ruled that accommodations should be evaluated under a “best ensure” standard, rather than a reasonable/effective standard. 

As background, Stephanie Enyart, a legally blind law school graduate, applied to take the Multistate Professional Responsibility Exam (“MPRE”) and the Multistate Bar Exam (“MBE”), and requested a number of accommodations for her disability, including a yoga mat, extra time, a private room, and hourly breaks, as well as assistive technology computer software known as JAWS and ZoomText.  JAWS is an assistive screen-reader program that reads text aloud on a computer screen.  ZoomText is a screen-magnification program enabling the user to adjust the font, size, and color of text and to control a high-visibility cursor.  National Conference of Bar Examiners (“NCBE”), the developer of both exams, granted all of her requests except for the computer equipped with JAWS and ZoomText.  Instead, NCBE offered to provide her with a human reader, an audio CD of the test questions, a braille version of the test, and/or a CCTV with a hard-copy version in large font with white letters printed on a black background.  These accommodations, however, were deemed insufficient by Enyart, who contended that the auditory accommodations offered would not permit her to sufficiently comprehend and retain the language used on the test, while the other accommodations offered would cause her to suffer eye fatigue, disorientation, and nausea.  As a result, Enyart filed suit under the ADA seeking injunctive relief.  The U.S. District Court for the Northern District of California issued preliminary injunctions mandating that NCBE permit Enyart to take the exams using the software.   On NCBE’s appeal, the Court of Appeals affirmed.  

Title III of the ADA requires entities that offer professional licensing exams to offer such exams in a place and manner that is “accessible” to persons with disabilities or offer “alternative accessible arrangements” for such individuals.  Pursuant to its power to issue regulations administering Title III’s mandates, the Department of Justice has adopted a regulation delineating the duties of testing entities, requiring such entities to assure that the exam is selected and administered so as to “best ensure” that the exam results accurately reflect the test-taker’s aptitude or achievement level, rather than the person’s disability.  Enyart argued that the Department of Justice’s “best ensure” standard should be followed when analyzing testing accommodations, while NCBE countered that the regulation is invalid and instead asked the Court of Appeals to require only that a “reasonable” accommodation be required to make the tests accessible to Enyart.  

The Court of Appeals found that Title III’s use of the phrases “accessible” and “alternative accessible arrangements” is ambiguous, since nowhere in the entire ADA are those terms defined.  As a result of this ambiguity, the Court of Appeals determined that it must defer to the Department of Justice’s interpretation of the statute (i.e., the “best ensure” test), and underscored its support of the new standard by noting, “assistive technology is not frozen in time: as technology advances, testing accommodations should advance as well.”  In applying the “best ensure” standard, the Court of Appeals concluded that the District Court did not abuse its discretion in finding that the accommodations offered by NBCE did not make the exam accessible to Enyart.   

  Other courts have also adopted the “best ensure” standard, indicating a growing trend.  For example, in Jones v. National Conference of Bar Examiners, another case involving an MPRE examinee’s use of a computer equipped with screen access software, the U.S. District Court for the District of Vermont determined that the “best ensure” test “is entitled to controlling weight and governs the outcome in this case.”  Likewise, in the case of Bonnette v. District of Columbia Court of Appeals, brought by a blind law school graduate taking the MBE, the U.S. District Court for the District of Columbia applied the “best ensure” standard, rather than simply requiring that a “reasonable” accommodation be made. 

The growing application of the “best ensure” standard indicates that testing accommodations must keep pace with advances in technology.