SWEP and the Bars of Our Prison

by Scott C. LaBarre

From the Editor: The first afternoon of the 2010 convention was filled with excitement. It began with the presidential report, which always galvanizes the audience. One of the later highlights of the afternoon program was an address delivered by Scott LaBarre, president of the National Association of Blind Lawyers and president of the NFB of Colorado. Here are his remarks:

Thank you, Dr. Maurer and my Federation family. Under the hot summer sun a group of blind high school students enter the rehabilitation center every morning as part of their participation in SWEP, the Summer Work Experience Program. They are told that they are being evaluated for their vocational aptitude in an effort to help determine their future career. Among them is a student with excellent grades and great hopes who dreams of college and some great career afterward.

Day after day the students assemble at the rehab center and engage in tasks like putting screws, nuts, bolts, and steering knobs together. The activity is repetitive and mindless. Our student with the big dreams grows restless, wondering what in the world such activity has to do with college and a professional career. The student grows sick of the tedium and wasted purpose and complains to the supervisor, the rehab professional with a university degree. The complaints are ignored. The student persists. Finally the official screams at the student, “Hey kid, sit down and shut up! I don’t care how smart you are or about your big dreams. This is the type of work you’re going to do the rest of your life. Get used to it!”

Our young blind student is shocked into silence, and a terrible doubt now overwhelms this once hopeful youth. Maybe the rehab official is right. Maybe blind people are limited to only one kind of employment with low wages. Maybe it doesn’t matter how much education the student acquires or how big the dreams are. Blindness is the key factor. Expectations have been set, and they are low.

From these expectations our prison is built; the bars of the cell are erected. This young student is told that there is no escape and that one just better get used to it. Is this student condemned to live out this sentence, toiling mindlessly for little pay? Are the real barriers of blindness so substantial that hope no longer exists?

We in this room and throughout our great Federation know differently. The walls and bars of the student’s prison are false. They need not exist. Blindness need not artificially limit one’s dreams and hope for a better life. We know this, but many do not. Many of our own think they are confined and precluded from achieving true freedom. Many in our society share this view and believe that blindness means confinement, a life restricted by low expectations and poverty, a life limited to second-class citizenship and inferiority. The bars of our prison may not be of iron or steel, but they are just as real. If we allow it, we are just as much inmates as those sentenced to confinement by our legal system.

Other bars confine us, trap us in second class citizenship. I am speaking of the legal system and the associated bar organizations. We trust our legal system to uphold the law and administer justice. Inscribed above the entrance to our Supreme Court building is the legend, “Equal justice under law.”

So, out of all our social institutions, it is safe to assume that the legal system should be the least likely to adopt policies and practices that bar us from true freedom. In fact the legal system should be a leader in breaking down barriers and smashing the walls that hold us back. Well, you know what they say about assumptions.

The National Conference of Bar Examiners (NCBE) plays the largest role of any bar-related organization in determining whether a law student actually becomes a lawyer in our country. NCBE administers the Multistate Bar Exam (MBE) and the Multistate Professional Responsibility Exam (MPRE). In nearly every one of our jurisdictions across the nation you cannot practice law unless you pass these exams.

Many years ago I had the pleasure of suffering through these exams, and I passed them on two different occasions while getting my license in Maryland and later in Colorado. At that time I used a human reader because for me a reader was the best way to navigate the exam. Today the exam can be delivered electronically. A blind applicant can use JAWS or other screen readers to read the exam. If I were submitting myself to the torture known as the bar exam today, I would use JAWS because I can read much faster with JAWS than with a human reader. I can more easily manipulate my place in the text with JAWS. And JAWS does not fall asleep as my reader did when I took the Multistate Bar Exam in Colorado. Fortunately, I passed despite my reader’s slumber.

Stephanie Enyart, Tim Elder, Ann Blackfield, and Michael Witwer are all blind. They all possess juris doctor degrees. They all want to take the bar exam, and they want to use varying combinations of screen readers to take it. NCBE has said no. Yet their state bar examiners have all said yes, but, with respect to the MBE and MPRE, NCBE has the final word. NCBE tells them that they must use large print, a CCTV, an audio CD, or a human reader instead. None of these blind applicants has used such accommodations to get through law school and to pass all those exams. If forced to use NCBE’s accommodations, they will undoubtedly fail because they are not familiar with those methods and would spend their time attempting to manipulate the accommodation, rather than concentrating on the substance of the exam—a very difficult exam, I might add.

Imagine attempting to hang with the following multiple choice question from a past MBE while using an accommodation with which you had no familiarity. I took this directly from the NCBE Website.

In a writing signed by both parties, Paul Plannah, a renowned architect, agreed for a fee of $25,000 to design and supervise construction of a new house for Phoebe Threedee, a famous sculptor, the fee to be paid upon completion of the house. Plannah and Threedee got along poorly, and, when the design plans were about two-thirds complete, they had a heated argument over the proper location of a marble staircase. Hoping to avoid such encounters, Plannah, without Threedee's knowledge, assigned to Donna Drafty, a newly licensed architect practicing solo, "all of my rights and duties under my design and construction supervision contract with Threedee.” Drafty expressly promised Plannah to carry out the work to the best of Drafty's ability. Assume that Threedee allowed Drafty to proceed with the design work but that Drafty without legal excuse abandoned the project shortly after construction began.  Which of the following legal conclusions are correct?

I. Plannah is liable to Threedee for legal damages, if any, caused by Drafty's default.

II. Drafty is liable to Threedee for legal damages, if any, caused by Drafty's default.

III. Threedee is indebted to Drafty, on a divisible contract theory, for a prorated portion of the agreed $25,000 architect's fee promised to Plannah.
(A) I and II only
(B) I and III only
(C) II and III only
(D) I, II, and III

Imagine, not one of those questions, but 200, spread out over an entire day. Now imagine trying to take the exam while using an accommodation with which you have no familiarity. Granted, doing so may not be impossible, but it sure would make it a whole lot more difficult. This is somewhat like forcing a sighted person who normally needs to use reading glasses to take the exam without those glasses. Again, it may not be impossible, but the person would be spending a substantial amount of effort trying to decipher the print rather than concentrating on the questions.

As many of you know, we have sued NCBE, not once but twice, first in California on behalf of Stephanie Enyart and now in Maryland on behalf of Tim Elder, Ann Blackfield, and Michael Witwer. We have invoked the protections of the Americans with Disabilities Act. The ADA’s implementing regulations as promulgated by the Department of Justice state essentially that an examination must be administered to a person with a disability in a manner to best insure that the examination results accurately reflect the individual’s aptitude or achievement level, not the effect of the person’s disability. With respect to our situation, the bar exam should measure the applicant’s knowledge of the law, not the ability to use a completely unfamiliar accommodation.  

NCBE, on the other hand, has argued a different standard. They say that the ADA requires them only to provide a reasonable accommodation and not necessarily one the blind applicant prefers. They say also that providing the “preferred” accommodation is too expensive and can raise exam security concerns. They say this despite the fact that NCBE takes in over 50,000,000 dollars a year. As for security, how can delivering an encrypted electronic file to a state bar examiner be any more insecure than delivering thousands of paper exams through the mail?

NCBE’s arguments are deeply disturbing. We are not talking about an unsophisticated entity. These are bar examiners, after all, the very people guarding admission to the practice of law. You would assume that they know the law. Additionally, it’s not as if the ADA were a brand new law. In twenty days we will be celebrating the twentieth anniversary of the ADA’s adoption into law.

Alone these blind bar applicants and many like them have tried to get the accommodations they need but have failed. With the National Federation of the Blind the results are vastly different. The reason individuals going it alone often fail is that large corporate entities like NCBE can throw lots of money and lots of lawyers at the defense. Against us, however, that wasn’t going to happen. We have assembled a terrific legal team consisting of up to eight lawyers and several paralegals, including people you know like yours truly; Dan Goldstein, a great friend, one of our nation’s best attorneys, and my mentor; Mehgan Sidhu, another great friend and wonderful young lawyer; and the lawyers from Disability Rights Advocates in California, one of whom, Karla Gilebride, is a former NFB national scholarship winner. Only the National Federation of the Blind is capable of amassing such a strong and quality legal team. We have dedicated our hundred years plus of legal experience to making sure that these students get a fair shake and also to making sure that those who come after will know that their blindness will not artificially limit them from getting that same fair shake. We will not be out-lawyered!

The work has paid off thus far. On January 29, 2010, we had a hearing before United States District Court Judge Charles Breyer in San Francisco on our motion for a preliminary injunction. Essentially such a motion calls upon the Court to make a preliminary ruling on an expedited basis because there would not be enough time to let the case go through the normal multi-year process to get to trial.  We asked Judge Breyer to rule that Stephanie Enyart, a 2009 UCLA law graduate and member of our Federation, be allowed to take the February MBE and MPRE with assistive technology, and he did. On February 4, 2010, he ordered NCBE to allow Ms. Enyart to take the exams using assistive technology. He stated that a blind applicant should not be forced to use accommodations with which he or she is unfamiliar. Because the bar exam is long and difficult, a blind student should be able to take the exam using the accommodations that make the experience as equivalent as possible to taking the exam without a disability.

One would have thought that with such a definitive ruling NCBE would have taken its lumps and provided the exam as ordered, but instead they filed an emergency appeal with the Ninth Circuit Court of Appeals asking that court to stay Judge Breyer’s ruling so that they wouldn’t have to provide the accommodations at the end of February. Fortunately, the Ninth Circuit denied NCBE’s emergency motion. I am happy to report that Stephanie Enyart took the February 2010 bar exam with JAWS and ZoomText.

The battle is not over. We won the preliminary injunction, but NCBE has further appealed Judge Breyer’s ruling. Additionally, NCBE has denied Timothy Elder’s, Ann Blackfield’s, and Michael Witwer’s request to take the July 2010 Maryland MBE with assistive technology. Consequently we are fighting the exact same battle in the United States District Court for the District of Maryland before Judge Motz. On July 13 we will be involved in a hearing to determine whether our Maryland applicants will be able to take the exam with their requested accommodations.

We have often said that the discrimination we face results from misunderstanding and therefore an unintentional application of stereotypes and prejudice. Perhaps this is partially true. However, when you know the law and you know it is wrong to deny accommodations, can such actions be described as unintentional? NCBE chose to deny accommodations rather than giving blind applicants the opportunity to compete on the exam on a level playing field. They chose to deny these blind bar applicants the accommodations they used during school and will use on the job. These applicants are not asking for a special advantage, as NCBE has argued; rather they are asking for a level playing field.

Let’s talk about another one of their choices. NCBE has committed itself to fighting us tooth and nail at every turn. They would rather spend hundreds of thousands of dollars fighting us in the courts than spend a fraction of that to provide the requested accommodations. In my view NCBE’s conduct is not an unintentional act fueled by ignorance but a deliberate disregard of our civil rights.

Regardless, we will match every one of NCBE’s moves and push back with greater force. We won’t wear down; we won’t go away; and we won’t stop fighting until we have won! NCBE cannot bar us from equal justice under law.   We will not allow NCBE to imprison us by telling us what accommodations we need. It is we who will be doing the telling.

As you have undoubtedly figured out, I was the young high school student described at the beginning of this speech. When that rehab official told me to sit down and shut up, I felt that I was being sentenced to prison, to a life of confinement and great restriction. The cell door was slammed shut, and the terms of my imprisonment had been dictated. That was 1984, and less than two years later I received a most wonderful gift. I won a National Federation of the Blind scholarship, and, ladies and gentlemen, that is when I busted out of jail!

For the first time I tasted real freedom, and I haven’t been sitting down or shutting up since. The Federation has taught me to stand up and speak out—stand up for what is right, and speak out against injustice. The law of our great land guarantees us equal opportunity, but the dictates of the law are meaningless unless someone sees that they are enforced. That is exactly what we are doing in these NCBE cases and with all our advocacy throughout the land.

Some, like NCBE, try to erect the walls of our prison by denying us the opportunity we have earned. By standing together in our Federation and speaking out with one voice, we deny anyone the right to lock us into a life without hope or possibility.  We are smashing down the walls of our prison, and we will be free. Nothing shall stop us. My brothers and sisters, we will be free!

Afterward

This speech was delivered at our national convention in early July. As announced, Judge Motz of the United States District Court for the District of Maryland did in fact hold a preliminary injunction hearing on July 13, 2010, to decide whether Tim Elder, Ann Blackfield, and Michael Witwer could take the MBE with the accommodations they have been using while students. It saddens me to report that Judge J. Frederick Motz denied our motion, and these blind applicants were forced to take the July 2010 exam with the accommodations of NCBE’s design, not the ones that gave them the fairest opportunity to pass the exam. They made the tough choice of taking the exam under far less than ideal circumstances, and we hope they pass despite the additional barriers thrown in their way. 

Judge Motz denied the motion on two major grounds. First, he bought into NCBE’s argument that they do not actually administer the exam and therefore are not covered by the ADA. We regard this argument as ridiculous because NCBE controls every aspect of the way the exam is administered to bar applicants, and NCBE tells the state bar organizations exactly how to carry out the exam. If the state bar does not do exactly as NCBE instructs, NCBE threatens to invalidate the scores of all those who took the exam in that state. Nevertheless, Judge Motz chose to adopt NCBE’s argument and hide behind this technicality.

Second, Judge Motz stated that blind applicants had taken the exam with readers in years past. Readers are enumerated in the text of the ADA and have proven to be a suitable accommodation. Therefore NCBE was not forced, under law, to do something new. He made this pronouncement knowing full well that these applicants have not used readers and that assistive technology is the way they received accommodations throughout law school and the way they will be accommodated on the job.

There were other disturbing aspects of Judge Motz’s comments from the bench on Tuesday, July 13, 2010. Several times through the two-plus-hour oral arguments he said, “I do not mean to be cold, but… . ” He said this every time, immediately before he asked a tough, unfavorable question or made an unfavorable comment to the position that the blind applicants were arguing. Apparently he did not want to hurt our feelings before applying the law against us.

Also, and most astonishingly, at the end of the hearing and after he had pronounced his ruling against us, he urged NCBE to provide the accommodations anyway. He said that the law did not force NCBE to provide the needed accommodations but that nothing prohibited them from doing so as a voluntary matter. He said that it would be the good thing to do. It is amazing that this federal judge would think for a moment that NCBE would provide the requested accommodations after spending several hundreds of thousands of dollars fighting exactly that. Of course he knows that NCBE will not do it unless ordered by a court to do so.

Moreover, what is Judge Motz really saying here? Our effort to obtain a level playing field when technology makes that possible is not protected by the law? Rather it is a matter of charity. A testing organization with vast resources cannot be forced to provide accommodations, but they should do it anyway because it seems like the proper thing to do.

Judge Motz’s ruling is a setback, but only that. At the convention I boldly claimed that we will win this fight, and Judge Motz’s decision changes nothing about my prediction. We will win this fight because we are resolved to do so. The ADA insures that we will have a level playing field. Unfortunately, it takes time and constant education of the judiciary, not to mention society, to knock down the prevailing social stereotypes and clear the way for proper interpretation of the law.

One of the largest barriers we face is that our society, and the judiciary as part of it, generally does not view our issues as those of civil rights. Instead we are viewed through the lenses of the medical and charity models. This was abundantly evident in Judge Motz’s comments at the end of the hearing when he discussed the provision of the requested accommodations as a good thing to do rather than the lawful obligation.