                                                                        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       This order and judgment is not binding precedent, except under the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


                                         -2-
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



                                        -3-
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



                                          -4-
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)




                                          -5-
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.
                                           -6-
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
                                         -7-
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.
                                            -8-
      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);
                                          -9-
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




                                            -10-
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.
                                          -11-
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.




                                         -2-
