## Facts

- Stephanie Enyart, a legally blind law graduate with Stargardt’s Disease, needed to pass the MPRE and the MBE (as part of the California bar exam) to pursue licensure.
- Enyart’s impairment caused a central blind spot and extreme light sensitivity; she relied on assistive technology to read.
- In law school, Enyart primarily used a computer with JAWS screen reader and ZoomText screen magnifier to take exams.
- Enyart requested to take the MPRE and MBE on a computer using JAWS and ZoomText, supported by medical documentation stating that alternatives such as CCTV produced rapid eye fatigue, disorientation, and nausea.
- The State Bar of California did not object to Enyart’s request, but the National Conference of Bar Examiners, Inc. (NCBE), which develops the MPRE and MBE, refused to provide an electronic format enabling JAWS/ZoomText.
- NCBE offered other accommodations (e.g., human readers, audio CDs, Braille, CCTV), which Enyart asserted were ineffective for her and caused physical discomfort and reduced comprehension.
- Enyart sued under the ADA and related state law and obtained preliminary injunctions requiring NCBE to allow her to use a computer with JAWS and ZoomText for specified upcoming administrations.

## Issues

1. Whether the appeal from preliminary injunctions was moot because the test administrations covered by the injunctions had already occurred.
2. Whether 42 U.S.C. § 12189 and 28 C.F.R. § 36.309(b)(1)(i) require a testing entity to provide accommodations that “best ensure” exam results reflect aptitude rather than disability-related limitations.
3. Whether the district court abused its discretion in granting preliminary injunctive relief based on likelihood of success (or serious questions), irreparable harm, balance of hardships, and public interest.

## Decision

- The Ninth Circuit held the appeal was not moot because the dispute was capable of repetition yet evading review and the injunctions had continuing legal significance.
- The court interpreted 28 C.F.R. § 36.309(b)(1)(i) to require accommodations that “best ensure” the exam measures what it purports to measure rather than the effects of the examinee’s disability, a more demanding standard than a generic reasonableness test.
- The court affirmed the preliminary injunctions, concluding the district court did not abuse its discretion in finding:
  - Enyart was likely to succeed on the merits (or, at minimum, raised serious questions) because JAWS/ZoomText best ensured accurate measurement for her specific limitations and testing history.
  - Enyart would suffer irreparable harm absent relief due to loss of equal opportunity to qualify for professional licensure.
  - The balance of hardships favored Enyart; the burden on NCBE to provide an accessible format and allow the software was comparatively modest.
  - The public interest favored enforcement of disability-rights requirements and accurate assessment of competence on licensing exams.

## Legal Principles

- A challenge to time-limited testing accommodations may avoid mootness when it is capable of repetition yet evading review.
- Under 42 U.S.C. § 12189 and 28 C.F.R. § 36.309(b)(1)(i), testing entities must administer licensing exams so as to “best ensure” that results reflect the individual’s aptitude or achievement level rather than impaired sensory, manual, or speaking skills.
- The “best ensure” requirement calls for a comparative, individualized assessment of which accommodation most effectively provides equal measurement for the particular examinee, not merely an accommodation that is minimally adequate for some test-takers.
- Preliminary injunctive relief is appropriate where denial of effective testing access threatens non-compensable injury such as delayed or blocked entry into a profession, and where equities and public interest favor compliance with federal disability law.

## Conclusion

The Ninth Circuit affirmed preliminary injunctions requiring NCBE to permit use of JAWS and ZoomText on the MPRE and MBE, holding that the ADA’s testing-accommodation regulation requires measures that “best ensure” exam scores reflect ability rather than the effects of a disability and that the district court acted within its discretion in ordering that relief.


Enyart v. Nat’l Conf. of Bar Exam’rs, Inc., 630 F.3d 1153 (9th Cir. 2011)