DOJ Files Amicus Brief in Second Circuit Supporting "Best Ensure" Standard for Testing Cases

Yesterday, the Civil Rights Division of the US Department of Justice filed an amicus brief in Jones v. National Conference of Bar Examiners, No. 11-3355 (2d Cir., pending).  The case involves the proper standard for assessing a request for an accommodation on a professional examination.  The DOJ brief argues:

Plaintiff seeks to take the bar examination on a computer using assistive software to accommodate her vision and learning disabilities. Defendant asserts that it is required only to provide accommodations that are, in a general sense, reasonable. Section 309, however, specifically addresses professional examinations, and provides that they must be offered in a manner that is “accessible to persons with disabilities.” The implementing regulation provides that the examination must be administered so as to “best ensure” that the examination results accurately reflect the applicant’s aptitude or achievement level, rather than reflect the individual’s disability. The district court correctly concluded that the regulation is a reasonable construction of the statute and is entitled to deference under Chevron. Therefore, the “best ensure” standard in the regulation is an authoritative interpretation of the statute and applies in this case. The more generalized reasonableness standard, used in other provisions of the ADA, does not override the more specific regulation directed at disability-based discrimination in testing.