F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 16 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
ABBY J. ROTHBERG,
Plaintiff-Appellee,
v.
No. 04-1060
(District of Colorado)
LAW SCHOOL ADMISSION
(D.C. No. 04-D-118 (PAC))
COUNCIL, Law School Admission
Council, Inc., a Delaware non-profit
organization,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, MURPHY, and McCONNELL, Circuit Judges.
I. INTRODUCTION
Abby J. Rothberg filed a complaint against the Law School Admission
Council (“LSAC”) alleging that LSAC had violated the Americans with
Disabilities Act (“ADA”) by failing to provide her with reasonable
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
accommodations for her learning disability in connection with taking the Law
School Admissions Test (“LSAT”). Rothberg sought, inter alia, a preliminary
injunction to require LSAC to allow her fifty percent extra time to complete the
LSAT. The district court held a hearing on the motion and issued an order
granting the preliminary injunction on February 4, 2004. Rothberg took the exam
with her requested accommodation on February 7. On February 23, in response to
a request for clarification from LSAC, the district court amended the order to
compel LSAC to report the score Rothberg received on the February 7 exam at the
same time and in the same manner as the results of other applicants. LSAC filed
a notice of appeal and an emergency motion to stay the district court’s injunction.
This court granted that stay pending appeal and expedited the appeal. This court
has jurisdiction pursuant 28 U.S.C. § 1292(a)(1). Because we conclude that the
harm to Rothberg does not outweigh the harm to LSAC, we reverse.
II. BACKGROUND
Rothberg is a senior at Syracuse University who hopes to attend law school.
Throughout her education, Rothberg has received a variety of accommodations to
address her learning disability, which affects her ability to process information.
The LSAC is a non-profit entity that administers the LSAT, a standardized test
required for application to every accredited law school in the United States. In
September 2003, Rothberg applied to the LSAC for an accommodation of fifty
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percent extra time to complete the October 2003 LSAT. LSAC denied the request
and Rothberg decided to take the exam in October without any accommodation.
Rothberg received a score of 148 out of a possible 180 on that test. The median
score was 150.
Rothberg filed a second request for accommodations in November 2003
along with new supporting information obtained from a clinical psychologist.
Kim Dempsey, LSAC’s disabilities specialist and manager of accommodated
testing, reviewed Rothberg’s request and concluded that Rothberg had not
demonstrated a substantial impairment related to taking the LSAT. Rothberg
declined to sit for an LSAT examination given in December 2003. After the
LSAC rejected Rothberg’s third request for an accommodation in January 2004,
Rothberg brought suit. In her complaint, Rothberg sought an injunction
compelling LSAC to provide her with the requested accommodation for the
February 7, 2004 LSAT examination.
The district court scheduled a hearing on the matter and heard testimony
and argument from both sides. The district court examined the evidence
submitted by Rothberg concerning the diagnostic testing performed by Dr.
Thomas Griffiths, the clinical psychologist hired by Rothberg in connection with
her second request for an accommodation. In addition, the district court
examined evidence from Dr. Lawrence Allen, who administered to Rothberg a
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reading test requested by LSAC. Both Griffiths and Allen concluded that
Rothberg had a learning disability affecting her ability to process written
information. Both doctors recommended that Rothberg be given extra time to
complete the LSAT. The district court rejected Dempsey’s opinion that the
disabilities diagnosed by Griffiths and Allen would not impact Rothberg’s
performance on the LSAT.
The court then examined what standard should apply to Rothberg’s request
for a preliminary injunction. The district court concluded although Rothberg’s
request might be subject to the heightened standard for disfavored injunctions, the
heightened standard was inapplicable because Rothberg sought relief under a civil
rights statute, specifically the ADA.
Applying the ordinary standard for preliminary injunctions, the court
concluded that Rothberg had demonstrated a substantial likelihood of success on
her ADA claim because the diagnoses of Griffiths and Allen supported her
contention that she is substantially limited in the major life activities of reading
and learning. Moreover, the district court concluded that because the ADA
authorizes injunctive relief, Rothberg was not required to demonstrate irreparable
injury. In the alternative, the court concluded that Rothberg had demonstrated
irreparable injury because any relief granted after a full trial on the merits “will
likely be moot, as she will have already applied to law schools using her October
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score, and will have been deprived of the opportunity to demonstrate her true
abilities.” The district court determined that the threatened injury to Ms.
Rothberg outweighed any injury that the injunction might cause LSAC because
there was no evidence that LSAC would suffer any hardship in providing the
accommodation to Rothberg. Finally, the district court concluded that the
injunction furthers the strong public interest of requiring persons with disabilities
to be accommodated as mandated by the ADA. Based on the above, the district
court granted the injunction.
The district court’s original written order did not require LSAC to report
the score Rothberg received on the test she took with the requested
accommodations. After LSAC requested clarification, the court issued an
amended order requiring that the score be reported relying on the analysis of the
original order.
III. DISCUSSION
The district court’s grant of a preliminary injunction is reviewed for an
abuse of discretion, an error of law, or clearly erroneous factual findings.
Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir. 2001). To obtain a preliminary
injunction, a party must clearly establish: (1) a substantial likelihood of success
on the merits; (2) irreparable injury to the movant if the injunction is denied; (3)
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the threatened injury to the movant outweighs the injury to the other party; (4) the
injunction is not adverse to the public interest. 1 Id.
In this case, the district court concluded that Rothberg was not required to
demonstrate irreparable harm because LSAC engaged in a prohibited act under the
ADA. While we recognize that “Congress may intervene and guide or control the
exercise of the courts’ discretion” regarding how injunctions are issued for
violations of federal statutes, our circuit precedent does not make it clear that
Congress did so through the ADA. Weinberger v. Romero-Barcelo, 456 U.S. 305,
313 (1982) (referring to equity jurisdiction in stating, “we do not lightly assume
that Congress has intended to depart from established principles”). We need not
resolve the issue here, however, because, as explained below, even if irreparable
injury to Rothberg should be presumed from a potential statutory violation we
conclude that the balance of harms does not favor Rothberg.
In addition to the presumed injury resulting solely from the potential
statutory violation, both Rothberg and the district court articulated alternative
allegations of irreparable injury that would result from the denial of the request
1
As the district court noted, certain preliminary injunction requests require
the movant to meet a heightened burden. See SCFC ILC, Inc. v. Visa USA, Inc.,
936 F.2d 1096, 1098-99 (10th Cir. 1991). Indeed, LSAC contends that the
heightened standard should apply in this case. Because we conclude that
Rothberg has failed to demonstrate that she is entitled to a preliminary injunction
under any standard it is unnecessary to determine whether the heightened burden
should apply in this case.
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for a preliminary injunction. The district court concluded, in the alternative, that
Rothberg would be irreparably injured because awaiting a full trial on the merits
would deprive her of “the opportunity to demonstrate her true abilities” in that
any relief would likely be moot as Rothberg will have already applied to law
schools using her unaccommodated test score from October 2003. In addition, the
court concluded that Rothberg’s injury could not be redressed by compensatory
damages because her goal was to take the LSAT on a level playing field with
other applicants.
Contrary to the district court’s conclusion, a delay will not necessarily moot
Rothberg’s case. The relief sought by Rothberg is an order mandating that LSAC
report her accommodated score to various law schools. Only Rothberg’s decision
to apply to law schools using her unaccommodated score and then to attend and
remain at a given law school could moot that relief. Nothing requires Rothberg
to apply to law schools now. The district court’s conclusion that the plaintiff has
suffered irreparable harm because she has been denied a “level playing field” is
merely another way of stating that irreparable harm should be presumed from a
likely statutory violation.
Rothberg asserts that any harm she will suffer as the result of the denial of
a preliminary injunction is irreparable because Title III of the ADA only allows
for injunctive relief, not compensatory damages. The mere unavailability of
compensatory damages, however, does not compel the conclusion that any harm
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suffered by Rothberg is irreparable because the harm alleged by Rothberg is
speculative. In another context, we have recently addressed the difficulty of
defining what constitutes irreparable harm. See Dominion Video Satellite, Inc. v.
Echostar Satellite Corp., 356 F.3d 1256, 1262 (10th Cir. 2004). We noted that
“the injury must be both certain and great, and that it must not be merely serious
or substantial.” Id. (quotation omitted).
Rothberg testified that she was interested in five law schools, but that she
might consider other schools if her accommodated test score showed an
improvement over her unaccommodated score. Thus, Rothberg identifies her
injury as being “deprived of the opportunity to compete for entry into any number
of law schools that she . . . could possibly get into with a better LSAT score.” Of
course, Rothberg is not now prevented from applying to these other law schools
using her unaccommodated score and competing for entry. Her allegation is that
she would have a better chance of being admitted with her accommodated score. 2
Assuming her score has improved, its affect on her chances for admission is not
clear. At best then, Rothberg can only allege a delay of her application to law
school. Other courts have concluded that the mere delay of educational
opportunities does not constitute irreparable harm. See, e.g., Martin v. Helstad,
699 F.2d 387, 391-92 (7th Cir. 1983).
2
Rothberg’s accommodated score is not in the record.
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Even assuming, however, that Rothberg would suffer irreparable harm
through the delay of her entry into law school or as a result of a statutory
violation, the balance of harms would not favor granting the preliminary
injunction. While the district court noted the LSAC routinely grants
accommodations and would suffer no hardship or loss of reputation by allowing
the accommodation requested by Rothberg, that analysis fails to recognize the
effect that granting a preliminary injunction will have on the LSAC.
As LSAC argued below, if the preliminary injunction is granted and LSAC
is required to report Rothberg’s accommodated score, all of LSAC’s contentions
are moot. While the district court may be correct that LSAC routinely grants
accommodations, it only does so when it believes an accommodation is required.
LSAC’s claim that Rothberg is not entitled to an accommodation would
undoubtedly be moot if it is forced to report the score. As noted above, Rothberg
alone retains the power to moot her case prior to a full trial on the merits. Thus,
while Rothberg may eventually find a solution for the difficulty she faces if
denied a preliminary injunction, the LSAC cannot hope for relief once the
injunction issues. Given that this injury cannot be redressed once the injunction
issues, the district court’s failure to examine how it would affect the balance of
harms analysis was an abuse of discretion. Cf. John Doe Agency v. John Doe
Corp., 488 U.S. 1306, 1309 (1989) (holding that where the denial of a stay would
cause part of a case to become moot, the denial would impose irreparable injury);
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Machlett Labs., Inc., v. Techny Indus., Inc., 665 F.2d 795, 798 (7th Cir. 1981)
(holding that certain, permanent injury outweighs potential injury).
Because the record below on this issue is well developed and because of the
urgency associated with the parties’ requests for relief, we see no reason to
remand on this issue. SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1100
(10th Cir. 1991). While the harm alleged by Rothberg could mean a temporary
delay of her educational plans, as noted above, the harm to LSAC is permanent
and certain. Rothberg’s year-long delay and the presumed injury resulting from a
violation of the ADA does not outweigh the permanent injury to LSAC because
Rothberg may pursue her goal and likewise redress the statutory violation at a
later time. With the issuance of the preliminary injunction LSAC’s hope of
vindicating its position is extinguished.
IV. Conclusion
Because we conclude that the district court abused its discretion by failing
to consider the injury to LSAC in its balance of harms analysis and because the
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harm to Rothberg does not outweigh the harm to LSAC, we reverse the order
granting the preliminary injunction. 3
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
3
After LSAC requested a stay of the district court’s order granting the
preliminary injunction, Rothberg filed an unopposed motion to submit certain
documents under seal as part of her response. Given that the motion was
unopposed and the documents contain certain private information related to the
diagnostic tests Rothberg completed, the motion is granted nunc pro tunc.
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Rothberg v. Law School Admission Council, No. 04-1060
McConnell, J., concurring.
Although I am not fully persuaded that Ms. Rothberg’s delay in being able
to apply to law schools of her choice with the benefit of an accommodated test
score does not constitute irreparable injury, I agree with the majority’s general
analysis and especially its reliance on the fact that the case will become moot if
the preliminary injunction is affirmed. As a mandatory injunction that grants the
plaintiff substantially all the relief she would recover after a full trial on the
merits, this type of preliminary injunction is doubly disfavored, and thus should
not be granted without a powerful showing regarding the balance of harms and
the likelihood of success on the merits. SCFC ILC, Inc. v. Visa USA, Inc., 936
F.2d 1096, 1099 (10th Cir. 1991). I write separately only to note that the district
court hearing on this preliminary injunction was unusually rushed, and that this
remand will enable both parties to give more studied attention to the difficult and
important question of when the administrator of a nationwide competitive
examination can be required to grant accommodations for special needs.
Unlike some ADA accommodations, on account of the competitive nature
of the LSAT, it is imperative that standards for accommodations be uniform and
fairly administered. That would seem to require that a record be made regarding
the LSAC’s criteria for granting accommodations and reasons for denying an
accommodation in the particular case. Only if the claimant and her experts can
demonstrate either that the LSAC’s criteria are legally deficient under the ADA or
that those criteria have been improperly or incorrectly applied to her case, should
she prevail. Moreover, assuming Ms. Rothberg establishes that she is entitled to
an accommodation, the parties should put on evidence regarding the amount of
extra time needed to put her on an equal footing, but not give her an unjustified
advantage on a test for which every student would benefit from extra time.
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