Doe v. Nat'l Bd. Med. Examiners ( 1999 )

Opinions of the United
1999 Decisions States Court of Appeals
for the Third Circuit
12-8-1999
Doe v Nat'l Bd. Med. Examiners
Precedential or Non-Precedential:
Docket 99-1877
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Recommended Citation
"Doe v Nat'l Bd. Med. Examiners" (1999). 1999 Decisions. Paper 318.
http://digitalcommons.law.villanova.edu/thirdcircuit_1999/318
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Filed December 9, 1999
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 99-1877
JOHN DOE
v.
NATIONAL BOARD OF MEDICAL EXAMINERS,
Appellant
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civ. No. 99-cv-04532)
Magistrate Judge: Honorable M. Faith Angell
Argued: November 23, 1999
Before: BECKER, Chief Judge, SCIRICA, and ALITO,
Circuit Judges.
(Filed December 9, 1999)
GABRIEL L.I. BEVILACQUA,
ESQUIRE (ARGUED)
J. CLAYTON UNDERCOFLER,
ESQUIRE
JAMES F. KILCUR, ESQUIRE
LISA GALANTE BLACKBURN,
ESQUIRE
JEFFREY M. VIOLA, ESQUIRE
Saul, Ewing, Remick & Saul, LLP
Centre Square West
1500 Market Street, 38th Floor
Philadelphia, PA 19102
Counsel for Appellant
ROBERT M. BRUSKIN, ESQUIRE
(ARGUED)
RACHEL L. STRONG, ESQUIRE
Howrey & Simon
1299 Pennsylvania Avenue, N.W.
Washington, DC 20004
STEPHEN F. GOLD, ESQUIRE
125 South 9th Street, Suite 700
Philadelphia, PA 19107-5120
E. ELAINE GARDNER, ESQUIRE
LOIS G. WILLIAMS, ESQUIRE
Washington Lawyers' Committee for
Civil Rights and Urban Affairs
11 Dupont Circle, N.W., Suite 400
Washington, DC 20036
Counsel for Appellee
OPINION OF THE COURT
BECKER, Chief Judge.
John Doe is a medical student who has multiple
sclerosis. The National Board of Medical Examiners (NBME)
provided testing accommodations to Doe when he took Step
1 and Step 2 of the United States Medical Licensing
Examination (USMLE), as it concedes it is required to do
2
under Title III of the Americans with Disabilities Act
("ADA"), Pub.L. 101-336, Title III, 42 U.S.C.S 12181 et seq.
(19__). The accommodations provided included extra time to
complete each examination. The NBME annotates the
scores of examinees who receive testing accommodations if,
in its judgment, the accommodations affect the
comparability of the accommodated score to non-
accommodated scores. The NBME follows this practice
because it believes that it owes a duty of candor to the
users of USMLE scores to disclose factors that may affect
the meaning of an examinee's scores. Although the USMLE
was designed as a licensing examination, at the request of
examinees, the NBME will send Step 1 and Step 2 scores to
hospitals sponsoring residency and internship programs for
use in evaluating candidates for admission to their
programs. Examinees typically make such requests. Doe
claims that, as applied to him, the NBME's practice of
flagging accommodated scores violates Title III of the ADA.
Doe is currently in the process of applying for residencies
and internships in physical medicine and rehabilitation. He
brought suit in the District Court for the Eastern District of
Pennsylvania seeking to enjoin the NBME from annotating
his scores to reflect that he received testing
accommodations. By consent of the parties, Doe's motion
for a preliminary injunction prohibiting the NBME from
annotating his scores was assigned to a Magistrate Judge
(hereafter the District Court). After a three-day hearing, the
District Court granted the motion, holding that Doe had
standing to sue, that he had demonstrated a reasonable
likelihood of success on his claim that annotating his
scores violated section 302 of the ADA, and that he had
demonstrated that he would be irreparably harmed absent
an injunction. This expedited appeal followed (Doe must
send his scores to the residency programs soon if he is to
be seriously considered in the matching process that will
take place in early 2000).
The critical questions on appeal are (1) whether Doe has
standing to sue; (2) what section of Title III of the ADA
governs Doe's claim; (3) whether the very act of annotating
Doe's scores violates the ADA; and (4) whether Doe has
proven that the additional time did not affect the
3
comparability of his scores to non-accommodated scores,
and thus that the flag imposes an inequality on him. We
conclude that, although flagging sufficiently injures Doe to
surmount the NBME's argument that Doe lacks standing to
sue, flagging does not constitute an ipso facto violation of
Title III of the ADA. In so doing, we conclude that section
309 of Title III, 42 U.S.C. 12189 (19__), the section
specifically governing examinations, and not section 302,
42 U.S.C. 12182 (19__) the general provision on
discrimination in public accommodations, controls this case.1
We also conclude that, in order to demonstrate a
reasonable likelihood of success on his claim under section
309, Doe bore the burden of showing that his scores were
comparable to non-accommodated scores in terms of
predicting his future success, and that he failed to meet
this burden. The District Court's conclusion that Doe had
demonstrated a reasonable likelihood of success on his
claims under Title III of the ADA thus was unsupported by
the evidence Doe presented and the factual conclusions the
Court reached. Accordingly, we hold that the District Court
abused its discretion in determining that Doe had shown a
reasonable likelihood of success on the merits, and we
vacate the order granting the preliminary injunction.
I. Facts & Procedural History
The NBME, together with the Federation of State Medical
Boards of the United States, Inc., offers the USMLE. The
USMLE is a standardized multiple-choice test administered
in three parts, or "Steps". The USMLE was designed as a
licensing exam meant to assess an examinee's
understanding of, and ability to apply, concepts and
principles that are important in health and disease and
constitute the basis of safe and effective patient care. In
order to obtain a license to practice medicine in the United
States, an examinee must obtain a passing score on all
three Steps of the USMLE. Prior to May 1999, the USMLE
_________________________________________________________________
1. As the District Court applied section 302, we also briefly consider
whether the general requirements in section 302 unsettle our conclusion
that Doe has not demonstrated a reasonable likelihood of success on the
merits and conclude that they do not.
4
was provided in a written format. Since May 1999, the
USMLE has been given in a computerized format. After an
examinee takes the USMLE, the NBME sends a score report
to the examinee. Although the USMLE was designed for use
as a licensing exam, it is common practice for residency
and fellowship programs to use USMLE test scores in
evaluating candidates for admission to their programs. At
an examinee's request, the NBME will send a USMLE score
transcript to third parties designated by the examinee,
including residency and internship programs and state
licensing authorities.
When examinees with disabilities apply to take the
USMLE, they can request that the NBME provide testing
accommodations. An examinee must support such a
request with evidence that he is disabled and that a
particular accommodation is an appropriate
accommodation for his disability. Examples of
accommodations that the NBME has provided in the past
include large type, assistance filling in answer sheets, and
extra time.
When an examinee is granted a testing accommodation of
extra time, the NBME flags the examinee's transcript of
scores with the statement "Testing Accommodations" on the
front of the transcript and a comment on the back of the
transcript stating: "Following review and approval of a
request from the examinee, testing accommodations were
provided in the administration of the examination." The
NBME flags only those testing accommodations that its
experts conclude may affect the validity of a score. For
example, an accommodation providing a test in large print
would not be flagged. The NBME flags scores obtained
under extra time accommodations because its
psychometricians have concluded that scores obtained with
extra time accommodations may not be comparable to
scores obtained under standardized conditions.2 In such
_________________________________________________________________
2. According to the testimony of one of the experts, psychometrics is "a
sub-discipline within quantitative psychology, that looks at testing and--
the usefulness of tests, generally and other predictive variables. [ ]
Psychometrics, generally, includes the techniques that are used to build
tests and then evaluate those tests, once built."
5
circumstances, according to the NBME, the extra time may
under- or overcompensate for the test-taker's disability.
John Doe currently is a fourth-year medical student at
the Medical College of Virginia. He was diagnosed with
multiple sclerosis in the summer of 1987, when he was in
college. Doe's condition causes muscular spasticity,fine
motor problems, urgency of the bowel and bladder, and
occasional incontinence. Doe does not have any learning
disabilities, and his multiple sclerosis does not affect his
cognitive abilities. The type, frequency, and duration of
symptoms that Doe experiences vary and are unpredictable.
The parties agree that Doe is disabled within the meaning
of the ADA.
When Doe applied to the NBME to take Step 1 of the
USMLE, he completed a NBME questionnaire in order to
request testing accommodations. On that questionnaire,
Doe informed the NBME that he had a physical disability.
After several communications between the NBME and Doe
in which Doe refused lesser accommodations, the NBME
provided the following accommodations for Doe's Step 1
examination: (1) time and one half to take the examination;
and (2) a special seating assignment close to the restroom.
Doe requested these accommodations because his condition
can require him to stop and stretch his muscles frequently,
taking many "micro-breaks," and to visit the restroom
often. Doe concedes that it is possible for him to continue
considering questions on the exam while he takes these
breaks.
Doe's score report for Step 1 of the USMLE contained an
annotation that Doe received testing accommodations for
the examination. After he received the scores, Doe wrote to
the NBME and requested that it remove the annotation
from his scores. The NBME denied Doe's request. When
Doe applied to take Step 2 of the USMLE, he again
requested testing accommodations from the NBME.
Although Doe only requested time and a half for Step 2, the
NBME provided Doe with double time. It did so because the
computerized version of the test, which is the version of
Step 2 Doe was applying to take, is designed so that the
only available extra time accommodation is double time.
6
The NBME expects to report Doe's Step 2 scores sometime
in December of this year.
Doe has sent flagged Step 1 scores to some, but not all,
of the physical medicine and rehabilitation residency and
internship programs to which he is applying. He has been
offered interviews at some of the programs to which he
applied, which review applications and make decisions
regarding interviews on a rolling basis.
A flagged score effectively indicates to anyone familiar
with the NBME's policies regarding flagging that the
examinee has a disability of some sort, because only
disabled people receive testing accommodations. The NBME
will respond to inquiries from third parties who have
received annotated scores regarding the nature of the
accommodation provided, but it will not release information
regarding the disability for which the accommodation was
given. In Doe's case, it would inform residency and
internship programs who made inquiries about theflag that
Doe received extra time on his examinations, but it would
not reveal to the programs that Doe has multiple sclerosis.
The District Court found that the NBME had not shown
that it must flag the scores of accommodated examinees in
order to secure the psychometric soundness of the USMLE.
Significantly, however, the Court declined to conclude
whether it is possible to determine psychometrically if the
score of a candidate who received an accommodation of
extra time is better than, worse than, or the same as the
same score for a candidate who took the exam under
standardized conditions.
Tests vary along a continuum in the extent to which they
are "power" or "speeded" tests. A purely power test
measures an examinee's knowledge of the subject of the
exam with no time constraints. A purely speeded test
measures the time in which an examinee can complete
ministerial tasks. The USMLE exams are primarily power
tests, but they have a speeded component as well. Some
25% of examinees have reported that they felt that they
could have benefitted from more time on the examination.
There was conflicting expert testimony regarding the
comparability of time-accommodated scores to scores
7
achieved under standard conditions. The NBME's experts
testified to a lack of evidence of comparability. For example,
Dr. Mehrens testified that "[a]lthough research has
suggested that accommodated scores tend to overpredict
[success], research has certainly not informed us regarding
the exact probability" of error in comparing accommodated
and non-accommodated test scores. Doe's expert, Dr.
Geisinger, testified that providing extra time to individuals
with disabilities leads to results comparable to tests taken
under standard conditions; he acknowledged, however, that
it would be difficult to determine whether Doe received any
advantage from the extra time accommodation. As noted
above, the District Court declined to make a finding of
comparability on this evidence.
Doe believes that he will be discriminated against by
residency and internship programs if he submits flagged
scores. He testified at the preliminary injunction hearing,
however, that he did not know whether individuals at the
programs to which he had applied had any concerns about
admitting persons with disabilities. He also testified that he
had not been told that he would be denied admission to
any program because of the annotation or because of his
disability.
Pressed at oral argument to identify evidence supporting
Doe's belief, Doe's counsel offered three bases in support of
the assertion that the programs to which Doe has applied
will discriminate against him. First, he offered Doe's own
experience. In 1988, Doe took admission examinations for
both medical school and law school. He was accepted to
one of the two medical schools to which he applied as well
as to law school, and he decided on the law. After
completing law school and practicing law with prestigious
law firms for five years, he decided to reapply to medical
school. The second time around, he applied over the course
of two years and was accepted to only one of the thirty-two
medical schools to which he applied.
Doe argues that the comparison between his experience
applying to medical school directly from college, where his
scores on the medical school admissions exam were not
flagged and he was accepted at 1 of the 2 schools to which
he applied, and his experience applying to medical school
8
after practicing law for several years, where his scores were
flagged and he was accepted to 1 of the 32 schools to which
he applied, is evidence that residency and internship
programs will discriminate against him. He did not,
however, present any evidence of the relative selectivity of
the schools to which he applied the first and the second
time (which could explain the result), or evidence regarding
his grades and tests scores as compared to other applicants
against whom he was competing the first and second time
he applied, or evidence that his success rate was lower the
second time he applied because of the flag rather than as
a result of some other factor--such as the possibility that
he was a less attractive candidate for medical school the
second time because he had practiced law for five years. He
also did not present any evidence that residency and
internship programs would be likely to respond to his
application the same way that medical schools responded.
Second, Doe's counsel cited testimony by Dr. Geisinger,
Doe's expert, that he believed that some programs might
discriminate against Doe on the basis of his disability. More
specifically, Dr. Geisinger stated that he believed some
small programs might discriminate against disabled
candidates because of the potential cost of accommodating
a disabled resident, citing a study by Warren W.
Willingham on the testing of handicapped people. After
offering this opinion, however, Dr. Geisinger was asked "but
there's no research that supports anything you just said, is
there?" He replied "I would say there is no empirical
research."
Third, Doe's counsel cited the Willingham study referred
to by Dr. Geisinger. But the Willingham study, which did
not involve the USMLE, is equivocal. It states both that
"overall the selection process for handicapped applicants
was comparable to that for the nonhandicapped in the
sense that decisions followed quite closely what one would
expect from HSG and SAT scores" and that "admissions
were lower than predicted for a relatively small number of
visually impaired and physically handicapped students
applying to smaller institutions."
The NBME opposed Doe's motion for a preliminary
injunction by arguing that Doe lacked standing and that he
9
had not met the requirements for a preliminary injunction.
The NBME also argued that the court should recognize a
communicatory privilege protecting its good faith
communications to users of USMLE scores.
The District Court held that Doe had standing to sue the
NBME, that he had demonstrated a reasonable likelihood of
showing that the practice of flagging violated his rights
under the ADA, and that he had demonstrated that he
would be irreparably harmed absent an injunction. It
granted Doe's motion, enjoining the NBME from annotating
or flagging Doe's scores on Step 1 and Step 2 of the
USMLE. The NBME appeals from the order granting the
preliminary injunction.
Pursuant to 28 U.S.C. S 636(c) (19__), an aggrieved party
to a matter heard by a magistrate by consent of the parties
"may appeal directly to the appropriate United States court
of appeals from the judgment of the magistrate in the same
manner as an appeal from any other judgment of a district
court." This Court has jurisdiction pursuant to 28 U.S.C.
S 1292(a)(1) (19__), which confers jurisdiction on the Courts
of Appeals to hear appeals from interlocutory orders
granting injunctions.
II. Standing
The "irreducible constitutional minimum of standing" has
three parts: injury in fact (a concrete harm suffered by the
plaintiff that is actual or imminent), causation, and
redressibility. See Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992). Because these requirements are not
pleading requirements, but are necessary elements of a
plaintiff's case, mere allegations will not support standing
at the preliminary injunction stage. "[E]ach element [of
standing] must be supported in the same way as any other
matter on which the plaintiff bears the burden of proof, i.e.
with the manner and degree of evidence required at the
successive stages of litigation." Id. at 561. Doe has not
adduced evidence demonstrating more than a mere
possibility that he will be discriminated against by
residency and internship programs if his scores are flagged.
Accordingly, Doe has not demonstrated standing on this
basis.
10
The District Court concluded that Doe had standing
because he "pled infringement of the right to be free from
discrimination under the [ADA]." This formulation of
standing ignores the requirement that, at the preliminary
injunction stage, allegations are not enough to support
standing, and it incorrectly equates a violation of a statute
with an injury sufficient to confer standing. The proper
analysis of standing focuses on whether the plaintiff
suffered an actual injury, not on whether a statute was
violated. Although Congress can expand standing by
enacting a law enabling someone to sue on what was
already a de facto injury to that person, it cannot confer
standing by statute alone. See Lujan, 504 U.S. at 578
(noting that Congress can "elevat[e] to the status of a legally
cognizable injur[y] concrete, de facto injuries that were
previously inadequate in law.").
Doe has identified, however, an injury in fact that
provides an alternative basis for standing. He has
demonstrated that the flag on his test scores identifies him
as a disabled person. Being so identified harms him in the
sense that, because of his justifiable and reasonable
concern as a disabled person with how people who can
affect his future and his livelihood, and whose judgment
may be informed by the information, will perceive him, he
has actively sought to avoid being so identified. We are
persuaded that this injury--being identified as a disabled
person against his will--is enough to establish that Doe has
suffered a concrete harm as a result of the NBME's policy
of flagging accommodated scores.
The jurisprudence of standing is littered with cases in
which courts have dismissed actions because the injury
was not personal (i.e., it accrued to third parties), or the
injury was not concrete (i.e., it was too theoretical), or the
injury was not actual or imminent (i.e., it was speculative),
but that is not the case here. The injury identified is
personal to Doe; he is not claiming an injury from
generalized discrimination against disabled persons or
suing on behalf of the disabled, he is claiming that it hurts
him personally to be identified as a disabled person when
he has explicitly stated that he does not want to be so
identified. If his fear of discrimination were unfounded, we
11
might call this a purely theoretical injury (i.e., one that is
not concrete). But because his fear is based in reality, Doe's
injury to his interest in keeping his disability private is
concrete. Similarly, the injury is actual/ imminent. Some of
his score reports already have been flagged, and the others
are sure to be flagged absent an injunction. Thus, we
conclude that Doe has met the actual injury component of
the constitutional standing requirement.
Because the injury complained of is an injury fairly
traceable to the NBME that would be redressed by the relief
Doe seeks, we conclude that Doe has met the constitutional
standing requirement.3 This conclusion, however, is
analytically separate from the question whetherflagging in
these circumstances constitutes discrimination under Title
III of the ADA, to which we now turn.
III. The Preliminary Injunction
A. General Standards
This Court reviews orders granting preliminary
injunctions for abuse of discretion. We review underlying
findings of fact for clear error and consider questions of law
de novo. See Acierno v. New Castle County, 40 F.3d 645,
652 (3d Cir. 1994). A court abuses its discretion when its
ruling is founded on an error of law or a misapplication of
law to the facts. See Marco v. Accent Pub. Co., 969 F.2d
1547, 1548 (3d Cir. 1992). Accordingly, inasmuch as the
result depends upon a question of law, namely, whether the
practice of flagging test scores violates the Americans with
_________________________________________________________________
3. The NBME adduced some evidence that, if Doe is interviewed by a
physician in the residency and internship programs, the physician would
be able to tell from Doe's gait that he has some sort of neurological
disorder. Doe has contested this evidence on the basis that he has
successfully hid his disability in medical school. We are not persuaded
that the NBME's evidence shows that Doe's injury would not be
redressed by the relief he seeks. If programs that interview Doe are able
to identify him as a disabled person on the basis of the interview, such
would occur only after Doe already had been granted an interview. An
annotation on his test score, by contrast, allows programs to identify
Doe as a disabled person before they decide whether to interview him.
12
Disabilities Act, we exercise plenary review. See In re Assets
of Myles Martin, 1 F.3d 1351, 1357 (3d Cir. 1993).
"Four factors govern a district court's decision whether to
issue a preliminary injunction: (1) whether the movant has
shown a reasonable probability of success on the merits; (2)
whether the movant will be irreparably injured by denial of
the relief; (3) whether granting preliminary relief will result
in even greater harm to the nonmoving party; and (4)
whether granting the preliminary relief will be in the public
interest." American Civil Liberties Union of New Jersey v.
Black Horse Pike Regional Bd. of Educ., 84 F.3d 1471, 1477
n.2 (3d Cir. 1996) (en banc). If the order granting the
preliminary injunction is to be upheld, Doe must
demonstrate that the District Court did not abuse its
discretion in finding both that he had a reasonable
probability of success on his claim that flagging his score
violates the ADA, and that he would be irreparably harmed
if an injunction did not issue. As we hold that Doe has not
demonstrated a reasonable chance of success on his claim
that flagging his scores violates the ADA, we vacate the
order granting a preliminary injunction without reaching
the question of irreparable harm.4
B. The Specific Controls the General
The District Court analyzed the "flag" under section 302
of the ADA, which sets forth general provisions prohibiting
_________________________________________________________________
4. The NBME also argues that this Court should recognize a common law
privilege that would protect good faith, truthful communications to state
licensing authorities and medical residency programs. Such a privilege
would be a defense to this suit, as with communicatory privileges within
the law of defamation. Because of the public interest in ensuring that
physicians are qualified to practice medicine, the NBME claims a duty to
disclose the manner in which the USMLE was administered and the
meaning of the resulting score. In support of this proposition, the NBME
cites Rothman v. Emory University, 123 F.3d 446, 452 n.4 (7th Cir.
1997), in which the court, although deciding the case on other grounds,
observed that a claim that a law school dean's communications to state
bar examiners were protected by a common law privilege grounded in the
public interest in an applicant's moral character, reputation, and fitness
for the practice of law had "exceptional force." Because Doe has not met
his burden of showing a reasonable likelihood of success on the merits,
we need not consider the NBME's invitation to recognize such a privilege.
13
discrimination in public accommodations, 42 U.S.C.
S 12182 (19__). It failed to consider whether section 309,
the more specific statute governing discrimination by
providers of examinations, effectively defines the
requirements of Title III of the ADA with regard to
examinations.5
In reviewing this decision, we begin with the ordinary
tools of statutory construction. "[I]t is a commonplace of
statutory construction that the specific governs the
general." Morales v. Trans World Airlines, Inc., 504 U.S.
374, 384 (1992) (citing Crawford Fitting Co. v. J.T. Gibbons,
Inc., 482 U.S. 437, 445 (1987)); see also Fourco Glass Co.
v. Transmirra Products Corp., 353 U.S. 222, 228 (1957)
("The law is settled that however inclusive may be the
general language of a statute, it will not be held to apply to
a matter specifically dealt with in another part of the same
enactment.") (citations omitted). This principle has special
force when Congress has targeted specific problems with
specific solutions in the context of a general statute. See
HCSC-Laundry v. United States, 450 U.S. 1, 6 (1981) (per
curiam). It applies "particularly when the two[provisions]
are interrelated and closely positioned, both in fact being
parts of" the same statutory scheme. See HCSC-Laundry,
450 U.S. at 6. But see Varity Corp. v. Howe, 516 U.S. 489,
511 (1996) (rejecting argument that specific limitation on
remedies in one provision of a statute trumped a general
provision for remedies in another section).6
_________________________________________________________________
5. Doe also makes a claim under Title V of the Americans with
Disabilities Act, Section 503, 42 U.S.C. S 12203 (19__). Title V prohibits
retaliation and coercion directed at persons who have taken steps to
oppose an act or practice or who have made a charge of illegality under
the ADA. Because the record reflects no evidence of retaliation or
coercion, we hold that Doe has not demonstrated a reasonable likelihood
of success on his Title V claim.
6. For the purposes of applying the "specific governs the general" canon
of construction, it is important to distinguish between arguments
regarding simultaneously enacted provisions of the same act, where the
Supreme Court has found the canon to be a useful interpretive guide
even absent a conflict between the provisions, and arguments for implied
repeal, where the Supreme Court has sometimes found the canon to
have force only when there is a "positive repugnancy" between two
different statutes. See Connecticut National Bank v. Germain, 503 U.S.
249, 253 (1992) (quoting Wood v. United States, 41 U.S. (16 Pet.) 342,
363 (1842)).
14
An analogous case suggests that the District Court erred
in analyzing the case under section 302 instead of section
309. In HCSC-Laundry, a cooperative laundry formed by a
group of hospitals challenged a ruling of the Internal
Revenue Service. The service denied the laundry not-for-
profit status under the general provisions regarding not-for-
profit organizations of section 501 of the Tax Code, because
a more specific provision under 501 governed the not-for-
profit status of hospitals, and the laundry did not fit within
that provision. In holding that the laundry could not claim
not-for-profit status under the general provision, it was
significant to the Court that both provisions were"parts of
501 relating to exemption of organizations from tax." 450
U.S. at 6.
Here, by analogy, both 309 and 302 are parts of Title III,
which prohibits discrimination in public accommodations.
We believe that the rationale of the "specific governs the
general" canon counsels that we treat section 309 as
Congress's specific definition of what Title III requires in the
context of examinations. Moreover, although applying
section 302 would not necessarily undermine limitations
created by section 309 (neither section explicitly mentions
flagging), it would render 309 superfluous. If section 302
settled the question, there would have been no need to
enact section 309. Accordingly, we conclude that section
309 governs in this case.
C. Section 309
Section 309 does not explicitly bar the practice offlagging
the test scores of examinees who have received testing
accommodations. It provides that "[a]ny person that offers
examinations or courses related to applications, licensing,
certification, or credentialing for secondary or post-
secondary education, professional, or trade purposes shall
offer such examinations or courses in a place and manner
accessible to persons with disabilities or offer alternative
accessible arrangements for such individuals." 42 U.S.C.
S 12189 (19__). The NBME concedes that this provision
required it to accommodate Doe's disability when he took
the exam. It argues, however, that it is not required to keep
the provision of an accommodation secret from programs
that use USMLE scores to evaluate candidates.
15
While the Department of Justice regulations interpreting
section 309 provide a useful explication of its meaning, they
also make no explicit mention of the practice of flagging
accommodations. They interpret the section to require 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 (except where those skills are the
factors that the examination purports to measure)." 28
C.F.R. S 36.309(b)(1)(i) (19__).
Because he cannot point to an explicit bar on the
practice of flagging, Doe argues that the annotation unfairly
calls into question the validity of his scores and in effect
denies him the opportunity to take the exam "in a place
and manner accessible" to him. Doe reads too much into
the phrase "in a [ ] manner accessible to persons with
disabilities." He would have us hold that the phrase "in a
manner accessible" includes by implication the requirement
that the resulting scores be declared psychometrically
comparable to the scores of examinees who take the test
under standard conditions. However, neither the language
of the statute nor the regulation interpreting it sets forth or
implies such a requirement.
The term "accessible" is not best understood to mean
"exactly comparable." The notion of accessibility, or best
ensuring that examination results accurately reflect
"aptitude or achievement level," see 28 C.F.R.
S 36.309(b)(1)(i), does not mandate that the NBME provide
examinations to the disabled that yield technically equal
results; it mandates changes to examinations--"alternative
accessible arrangements," 42 U.S.C. S 12189 (19__)--so
that disabled people who are disadvantaged by certain
features of standardized examinations may take the
examinations without those features that disadvantage
them.
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This is not a case in which the NBME refused to provide
Doe with a score. The annotation does not state that Doe's
scores are invalid. Moreover, Doe has not adduced evidence
that residency and internship programs would regard the
annotation as a signal of invalidity. As the evidence
described supra at pages 7-8 reflects, he also has not
proven that his scores are comparable to non-
accommodated scores, and thus that, by flagging, the
NBME has imposed an inequality on him by treating the
same thing differently. Indeed, the District Court explicitly
refused to conclude that the Doe's scores are comparable:
"the larger issue of whether, in fact, standardized scores
and scores obtained by disabled individuals for whom time-
related accommodations were granted are comparable in
psychometric terms . . . need not be answered by me." Doe
v. National Board of Medical Examiners, 1999 WL 997141,
at *12. The expert testimony was unanimous that it is not
possible to know how scores of exams taken with
accommodations compare to scores of exams taken under
standard conditions. The annotation simply indicates that
Doe's scores are not psychometrically comparable to the
scores of examinees who took the test without
accommodations.
In the absence of a statutory proscription against
annotating the test scores of examinees who receive
accommodations, we do not view the annotation on Doe's
score--or its implications as just described--as itself
constituting a denial of access. If Doe were to establish
either that his scores are psychometrically comparable to
the scores of candidates who take the test under standard
time conditions, or that his scores will be ignored by the
programs to which they are reported, he might have
demonstrated a reasonable likelihood of success on this
claim. He has not met these evidentiary burdens. It may be
that Doe will be able to develop a fuller record atfinal
hearing. On the current record, however, he has not shown
a reasonable likelihood that he will prevail.
D. Section 302
Although we have concluded that section 309 defines the
requirements of the Title III of the ADA as applied to
examinations, we also note that nothing in section 302, the
17
section under which the case was decided by the District
Court, gives us reason to believe that Doe would have
demonstrated a reasonable likelihood of success under
section 302 if it were the appropriate section to apply.
Section 302 provides that "[N]o individual shall be
discriminated against on the basis of disability in the full
and equal enjoyment of the goods, services, facilities,
privileges, advantages, or accommodations of any place of
public accommodation by any person who owns, leases (or
leases to), or operates a place of public accommodation." 42
U.S.C. S 12182 (19__). Our cases construing section 302
hold that "[t]he plain meaning of Title III is that a public
accommodation is a place, leading to the conclusion that
`[i]t is all of the services which the public accommodation
offers, not all of the services which the lessor of the public
accommodation offers[,] which falls within the scope of Title
III.' " See Ford v. Schering-Plough Corp., 145 F.3d 601, 612-
13 (3d Cir. 1998); see also Menkowitz v. Pottstown Memorial
Medical Center 154 F.3d 113, 122 (3d Cir. 1998) ("We look
for . . . some nexus between the services or privileges
denied and the physical place of the . . . public
accommodation.").
Assuming that the service of reporting a score is bundled
with the service of offering the examination and thus has
the requisite direct nexus to a public accommodation, we
do not believe that Doe has demonstrated a reasonable
likelihood of showing that this service has been provided to
him in a manner that is discriminatory or unequal under
the terms of Title III.7 The District Court held that Doe had
_________________________________________________________________
7. The NBME does not argue that the examination itself is not a public
accommodation within the meaning of the statute, but argues that there
is no direct nexus between the examination and the score report. Doe
counters that the score is bundled together as a service with the exam
itself, because no one would take the exam except to obtain a score, and
thus that the requisite direct nexus is present. This is a forceful
argument. Because, however, the USMLE was designed as a physician
licensing examination to provide state medical boards with a uniform
basis for measuring the qualifications of applicants seeking to be
licensed as physicians, we believe that the question whether scores
reported to residency and internship programs are a service bundled
with the examination and thus have the requisite direct nexus to come
within the definition of public accommodations under section 302 is
close, but resolving the question would not affect the outcome here.
18
demonstrated a reasonable likelihood of successfully
showing that flagging violates the general prohibition on
discrimination in section 302, on the theory that the NBME
provided Doe a service unequal to the service offered to
other test takers. We reject this conclusion for the same
reason that we rejected Doe's argument under section 309:
Doe has not demonstrated that flagging his score makes
the service that the NBME provided to him substantively
unequal to the service it provides to other examinees. Like
other examinees, Doe took the exam and received a score.
Doe has not demonstrated that his score is comparable to
the scores of candidates who take the exam under standard
conditions and thus that flagging his score imposes an
inequality on him.8
Doe's final argument under section 302 is that identifying
him as a disabled person violates the general prohibition on
discrimination in section 302 because it facilitates
discrimination against him by third parties, namely,
residency and internship programs. There are several
difficulties with this argument. First, there is no provision
of Title III that explicitly requires confidentiality from
providers of public accommodation. By way of contrast,
Title I of the ADA, regarding disabilities and the
employment relationship, does require employers to protect
the confidentiality of their employees with disabilities, with
certain specific exceptions. See 42 U.S.C.SS 12112(d)(3)(B),
(4)(C) (19__). Second, if residency and internship programs
were to discriminate against Doe as a result of his
disability, such discrimination would not necessarily be
attributable to the NBME. Finally, as noted above, Doe has
not established that he is likely to suffer discrimination at
the hands of residency and internship programs as a result
of an annotation to his scores.
_________________________________________________________________
8. In addition to the general prohibition on discrimination, section 302
sets forth five subsections containing "specific prohibitions" on
discrimination in public accommodations. These subsections are largely
inapposite, and none does anything to undermine our conclusion that
Doe has not demonstrated a likelihood that he would prevail on a section
302 claim if we were to determine that section 302 were the correct
section under which to analyze his claim.
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IV. Conclusion
For the foregoing reasons, the order of the District Court
granting a preliminary injunction will be vacated. The
parties shall bear their own costs.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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