Associations Should Heed Rulings on Exam Accommodations

By: Donald A. Balasa

Recent court decisions show how the Americans With Disabilities Act may apply to associations offering credentialing exams.

Most association executives are aware that the employment and public accommodations provisions of the Americans with Disabilities Act (ADA) can apply to associations. In a recent development, several courts have rendered decisions that could affect credentialing examinations given by professional societies and trade associations or by their affiliated certifying bodies.

The cases involved legally blind law-school graduates who requested accommodations for taking bar examinations in California, Maryland, the District of Columbia, and Vermont. Courts in DC, Vermont, and California—and the U.S. Court of Appeals for the Ninth Circuit, reviewing the California decision—ruled in the graduates' favor. The Maryland case was dismissed on mootness grounds because the three plaintiffs passed the bar exam without the requested accommodations.

The facts of the Ninth Circuit case, Enyart v. National Conference of Bar Examiners, are similar to the others. Stephanie Enyart is a 2009 graduate of the UCLA School of Law who has been legally blind since she was 15. NCBE is a private, nonprofit corporation that develops and owns a number of national law tests. Most states, including California, use one or more of the NCBE tests as part of their bar examination.

Enyart, relying on Title III of the ADA, asked for permission to take the California bar exam on a laptop computer with two special programs—one that vocalizes the text on the computer screen and one that allows the user to manually control the font, size, color, and spacing of the words. Because of test security and cost considerations, NCBE refused her request, instead offering to provide "a human reader, an audio CD of the test questions, a braille version of the test, and/or a closed circuit television (CCTV) with a hardcopy version in large font with white letters printed on a black background."

Enyart rejected these alternatives, arguing that they "do not permit her to fully understand the test material, and that some of the offered accommodations result in serious physical discomfort," including nausea and eyestrain. She sued the NCBE, and the district court ruled in her favor.

In January 2011, the Ninth Circuit upheld that ruling. It based its decision on Section 309 of Title III and its attendant regulations, issued by the Department of Justice (DOJ).

Section 309 requires any private entity offering licensing, certification, or credentialing exams to make them accessible to people with disabilities. The DOJ regulations go into more detail, requiring that test providers "assure that…[t]he examination is selected and administered so as to best ensure that, when the examination is administered to an individual with a disability that impairs sensory, manual, or speaking skills, the examination results accurately reflect the individual's aptitude or achievement level or whatever other factor the examination purports to measure, rather than reflecting the individual's impaired sensory, manual, or speaking skills." (Emphasis added.)

The regulations also require that "appropriate auxiliary aids" be provided to impaired test takers, unless the particular aid "would fundamentally alter the measurement of the skills or knowledge the examination is intended to test or would result in an undue burden."

Enyart and the plaintiffs in the other cases argued that their requests should be decided according to the "best ensure" standard of the regulations. The NCBE took the position that this standard exceeded the language of ADA Section 309 and was therefore null and void. It unsuccessfully argued that it should be held to the "reasonable accommodations" standard found in other sections of the ADA and their regulations. The U.S. Supreme Court declined to review the Ninth Circuit's decision.

Enyart and the similar decisions by courts in DC and Vermont are relevant to associations that provide certification or credentialing examinations or courses. Association certifying boards should be mindful of the "best ensure" standard endorsed by the federal courts and should consult with legal counsel when making decisions about granting accommodations to disabled candidates.

Donald A. Balasa, JD, MBA, is executive director and legal counsel for the American Association of Medical Assistants. Email: [email protected]