9th Circuit upholds testing accommodations

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The U.S. Circuit Court of Appeals for the 9th Circuit ruled Jan. 4 in favor of a legally blind UCLA School of Law graduate seeking to use computer-assisted programs to ensure she could pass a test required to practice law in the state of California.

In March 2009, the student asked the National Conference of Bar Examiners for permission to use a laptop equipped with JAWS, a program that reads text aloud, and ZoomText, a screen magnification program, to take the state Multiple Professionally Responsibility Exam. The board objected, fearing that the equipment could be exploited by hackers to access test questions. Instead, it stated that the student could use a Braille version of the test, a live reader, an audio recording of the test, a live read, an audio recording of the questions or a test with enlarged text.

In it’s opinon, the court stated that the accommodations were not a question of preference, but of need. As a result, NCBE’s stance violated the Americans with Disabilities Act and Department of Justice regulations for accommodations for licensed exams.

“The NCBE points to no authority to support the position that an accommodation which results in eye fatigue, disorientation and nausea within five minutes, which become fully developed several minutes after that ‘is reasonable,’” according to the opinion.

The NCBE argued that the student’s requests were unreasonable because the student used other accommodations in previous exams. It also argued that its suggested accommodations had previously worked for students with similar conditions. The court rejected both these arguments, noting that the student’s condition had worsened over time and that accommodations should be taken on a case-by-case basis.

“Assistive technology is not frozen in times; as technology advances, testing accommodations should advance as well,” the court stated.

The decision upheld a preliminary injunction in favor of the student handed down at the district court level.

The test is one of two required to practice law in California. When the student asked to use the computer-assisted programs for the California Bar Exam, the State Bar of California did not object.