A. F. v. Association of American Medical Colleges

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

A.F.,

Plaintiff, Case No. 2:23-cv-1241

JUDGE EDMUND A. SARGUS, JR.

v. Magistrate Judge Elizabeth P. Deavers

ASSOCIATION OF AMERICAN

MEDICAL COLLEGES.,

Defendant.

OPINION AND ORDER

This matter is before the Court on Plaintiff A.F.’s Motion for Temporary Restraining Order

and/or Preliminary Injunction (“Motion”). (ECF No. 4.) Defendant Association of American

Medical Colleges (“AAMC”) opposes Plaintiff’s Motion. (ECF Nos. 13, 27.) For the reasons set

forth below, the Court DENIES Plaintiff’s Motion.

I. BACKGROUND

Plaintiff brings this action against AAMC alleging, inter alia, violations of Title III of the

Americans with Disabilities Act (“ADA), 42 U.S.C. § 12101 et seq. Plaintiff alleges she is a person

with a disability under the ADA and is entitled to 50% extra testing time on the Medical College

Admission Test (“MCAT”) given her diagnosed cognitive disorders, such as Attention Deficit

Hyperactivity Disorder (“ADHD”) and anxiety. AAMC disagrees, asserting that Plaintiff is not

disabled within the meaning of the ADA, and therefore she is not entitled to her requested time-

and-a-half accommodation on the MCAT. In response to AAMC’s denial of her requested

accommodation, Plaintiff filed the instant lawsuit. While the parties contest the propriety of

Plaintiff’s requested testing accommodation, the underlying facts are largely undisputed.

A. The Parties

At the time of filing her Complaint, Plaintiff was a student at Duke University with the

expectation that she would graduate in the spring of 2023. (Compl. ¶ 14, ECF No. 4.) Following

her graduation, Plaintiff plans to enroll in medical school. (Id.) She is eligible to take the MCAT,

id. ¶ 3, and she is scheduled to do so in late June 2023.

Defendant AAMC is a not-for-profit membership association that develops and administers

the MCAT—a standardized, multiple-choice examination that aids medical school admissions

offices in their evaluations of medical school applicants. (Bugbee Decl. ¶¶ 2-3, ECF No. 12-1.)

AAMC’s members consist of 170 accredited U.S. and Canadian medical schools, more than 400

teaching hospitals and health systems, and more than 70 faculty and academic societies. (Id. ¶ 2.)

AAMC reviews and processes thousands of accommodations requests each year, granting most

requests in whole or in part. (Id. ¶ 12.)

B. The Medical College Admission Test

The MCAT is a standardized, multiple-choice examination created to help medical school

admissions offices assess an applicant’s problem solving, critical thinking, and knowledge of

natural, behavioral, and social science concepts and principles that serve as key prerequisites to

the study of medicine. (Id. ¶ 3.) This computer-based examination consists of four multiple-choice

sections: (a) Chemical and Physical Foundations of Biological Systems; (b) Biological and

Biochemical Foundations of Living Systems; (c) Psychological, Social, and Biological

Foundations of Behavior; and (d) Critical Analysis and Reasoning Skills. (Id. ¶ 4.) When

administered under standard testing conditions, the MCAT lasts just over seven hours, of which

six hours account for actual testing time. (Id.)

AAMC does provide testing accommodations on the MCAT for qualifying examinees,

with the stated goal of providing “a valid exam while maintaining a level playing field for all test

takers.” (Id. ¶ 11.) As a precondition to receiving a testing accommodation, an examinee generally

must have a documented disability, as defined under the ADA, that requires an accommodation to

access the examination. (Id. ¶¶ 9, 10.)

The AAMC individually reviews all requests for testing accommodations. (Id. ¶ 10.) The

review process typically involves one or more doctoral-level psychologists or medical

professionals who evaluate the appropriateness of the request. (Id. ¶ 14.) In addition, some requests

undergo another level of review by external professionals with expertise in the examinee’s relevant

impairment. (Id.) Of course, AAMC does not grant every request for testing accommodations. (Id.

¶ 13.) Indeed, AAMC denies such requests when an examinee’s application fails to demonstrate

that the examinee has a disability within the meaning of the ADA, as interpreted by AAMC, or

fails to demonstrate that a particular accommodation is reasonable or necessary to take the MCAT

in an accessible manner. (Id.) AAMC also may offer accommodations different from those

requested by the examinee when AAMC deems it appropriate (i.e., where the examinee’s

functional limitations warrant some accommodation different in kind or degree to the

accommodation requested). (Id.)

C. Plaintiff’s Educational History

Plaintiff attended the Columbus School for Girls (“CSG”) from 2004 to 2019. (Ex. 3 to

Def.’s Opp’n, ECF No. 12-3.) Beginning in high school, CSG provided Plaintiff with formal and

informal testing accommodations, including extra testing time, due to Plaintiff’s cognitive

disabilities. (Pl. Decl. ¶ 4, ECF No. 19-1.) While in high school at CSG, Plaintiff received all A’s

except for a single B+ in an Advanced Placement (“AP”) English & Composition class. (Bugbee

Decl. ¶ 17, ECF No. 12-1.) Eight of her courses were AP courses, and she took multiple honors

courses as well. (Id.) She also received recognition for her scholastic achievements: she was the

Outstanding Physics Student of the Year in both 2017 and 2018, she earned the BC Stott Award

in AP Calculus in 2018, and the Science Cup in 2019. (Id.) Plaintiff graduated from CSG with a

cumulative Grade Point Average of 3.99. (Id.)

Plaintiff does have prior experience taking standardized tests. During her junior year at

CSG, Plaintiff took the American College Test (“ACT”) twice. (Id. ¶ 20.) Plaintiff scored a

composite score of 28 on her first attempt, and 30 on her second try, placing her in the 89th and

94th percentiles, respectively. (Id. ¶ 20; see also National Distributions of Cumulative Precents

for ACT Test Scores ACT-Tested High School Graduates from 2015, 2016 and 2017, ACT, INC.,

www.act.org/content/dam/act/unsecured/documents/MultipleChoiceStemComposite2017-18.pdf

(last visited June 10, 2023).) She earned her highest subject scores in English and Math, where she

placed in the 99th percentile, and her lowest subject score was in reading, where she placed in the

54th percentile. (Bugbee Decl. ¶ 20, ECF No. 12-1.) Plaintiff also took the SAT twice. (Ex. D to

French Decl., ECF No. 26-3.) Her best SAT score was 1500, which placed her in the top 2% of

examinees. (Id.; see also AAMC’s Supp. Brief at 7, ECF No. 27.) Plaintiff completed these exams

without accommodations. (See Ex. I to Bugbee Decl., ECF No. 12-1; Ex. I to French Decl., ECF

No. 26-3.)

Her academic success continued into adulthood. Upon graduating from CSG, Plaintiff

enrolled at Duke University, majoring in Psychology and minoring in Chemistry. (Compl. ¶ 14,

ECF No. 3; Ex. G to Bugbee Decl., ECF No. 12-1.) With no formal accommodations, Plaintiff

achieved straights A’s both semesters of her first year and straight A’s in the fall semester of her

second year. (Ex. G to Bugbee Decl., ECF No. 12-1.) In April 2021, during the spring semester of

her second year, Duke University permitted Plaintiff to receive 50% extra time on her classroom

tests and extra break time due to her “documented disability.” (Id.; Ex. E to Bugbee Decl., ECF

No. 12-1.) While the record is unclear whether Plaintiff ultimately used these accommodations,

the record does establish that Plaintiff continued to earn straight A’s, resulting in a cumulative

Grade Point Average of 3.99 as of the fall semester of her final academic year. (Ex. G to Bugbee

Decl., ECF No. 12-1.)

D. Plaintiff’s Requests for Testing Accommodations

On January 14, 2023, Plaintiff submitted her request for 50% extra testing time on the

MCAT. (Pl. Decl. ¶ 7, ECF No. 19-1; Bugbee Decl. ¶ 15, ECF No. 12-1; Ex. A. to Bugbee Decl.,

ECF No. 12-1.) In support of her request, Plaintiff provided a personal statement explaining her

request for testing accommodations, two letters from a physician’s assistant to Dr. Mina Bozak,

and a Professor Accommodation Letter from Duke University. (Pl. Decl. ¶ 7, ECF No. 19-1;

Bugbee Decl. ¶ 16, ECF No. 12-1.) And upon AAMC’s request, Plaintiff also provided copies of

her high school and college transcripts. (Bugbee Decl. ¶ 16, ECF No. 12-1.)

Plaintiff’s personal statement detailed her lifelong struggles to process and retain

information in academic settings, even after she began taking medication for her conditions. (See

Ex. B to Bugbee Decl., ECF No. 12-1.) Plaintiff described how she “never finished standardized

tests on time and that these scores never reflected [her] academic success,” citing her difficulties

reading “the words on the page while attempting to process a million other stimuli at the same

time.” (Id.) Due to her difficulties, Plaintiff “never finished sections on time, especially sections

like the reading and science sections on the ACT, which primarily included passage-based

questions.” (Id.) Plaintiff’s personal statement also noted how she was diagnosed with anxiety

disorder in high school, and more recently with ADHD. (Id.) But after receiving testing

accommodations, Plaintiff stated that her testing experience mirrored those of test takers testing

under standard conditions—that is, when her peers finished their tests on time, so, too, would

Plaintiff; when her peers struggled to complete the final problems on a test, Plaintiff would struggle

as well. (Id.)

The letters submitted by Dr. Mina Bozak’s Physician’s Assistant, Pamela Campbell,

described Ms. Campbell’s clinical evaluation of Plaintiff in October 2022. (See Exs. C, D to

Bugbee Decl., ECF No. 12-1.) Ms. Campbell’s evaluation resulted in a “strong diagnostic

impression that [Plaintiff’s] history is highly consistent with ADHD, combined type,” as well as

“Generalized Anxiety Disorder.” (Ex. C to Bugbee Decl., ECF No. 12-1.) Ms. Campbell concluded

her November 14, 2022 letter by recommending that Plaintiff receive 100% extra testing time on

the MCAT. (Id.) Dr. Bozak reviewed and adopted the November 14, 2022 letter. (See id.; Pl. Decl.

¶ 7, ECF No. 19-1.)

On March 1, 2023, AAMC notified Plaintiff that it had approved the accommodation of

stop-the-clock breaks but had denied Plaintiff’s request for extra testing time. (Ex. H to Bugbee

Decl., ECF No. 12-1.) In denying Plaintiff’s accommodations request, AAMC stated:

You requested 50% extended time on the basis of ADHD and a psychiatric

impairment. Your records document the diagnoses of ADHD and generalized

anxiety disorder and support the need for time to manage symptoms on test day. To

that end, we have approved additional time for breaks (i.e., stop the clock breaks)

to provide opportunities for you to refresh your attentional resources, manage

anxiety, regroup, and refocus without taking time away from test taking. There is

not sufficient evidence, or data (based on objective assessment), to support the need

for more time to access and/or process the actual test content as would be consistent

with the accommodation of extended testing time. We additionally note that

documentation of performance on prior standardized testing was not submitted for

review.

(Id.)

Three days later, Plaintiff requested that AAMC reconsider its denial of her request for

additional testing time. (Bugbee Decl. ¶ 20, ECF No. 12-1.) Accompanying Plaintiff’s request for

reconsideration were Plaintiff’s ACT score reports, as well as two reports from William Benninger,

Ph.D., a specialist in the diagnosis and treatment of ADHD in children, adolescents, and adults.

(Id.; Benninger Decl. ¶ 3, ECF No. 19-2.) These reports followed from Dr. Benninger’s evaluation

of Plaintiff by way of two Zoom calls lasting approximately two hours each. (Ex. F to French

Decl., ECF No. 26-3.)

In the first report, dated January 2023, Dr. Benninger diagnosed Plaintiff as having “ADHD

Combined Presentation (314.01).” (Ex. K to Bugbee Decl., ECF No. 12-1.) As to the current

severity of Plaintiff’s ADHD, Dr. Benninger indicated it was “moderate.” (Id.) In addition, Dr.

Benninger’s report listed Plaintiff’s “Comorbid/Coexisting Disorders”:

A. Other Specified Neurodevelopmental Disorder (315.8) Working Memory and

Other Executive Function Impairments

B. Depressive Disorder (previously diagnosed)

C. Anxiety Disorder (previously diagnosed)

(Id.)

Dr. Benninger concluded his report with two recommendations: first, that Plaintiff receive

50% extra time on each section of the MCAT; and second, that Plaintiff test in a quiet, distraction

free environment. (Id.)

Plaintiff also submitted Dr. Benninger’s supplemental report, dated March 2023, in her

request for reconsideration. (Ex. L to Bugbee Decl., ECF No. 12-1.) In this report, Dr. Benninger

reiterated the results of the tests he administered to Plaintiff during her January 2023 examination,

Plaintiff’s diagnoses, and his recommended testing accommodations (i.e., extended testing time

and test taking in a distraction-free environment). (Id.) Dr. Benninger also opined that the already-

granted stop-the-clock breaks were insufficient to fully compensate Plaintiff for her disability. (Id.)

AAMC reviewed Plaintiff’s additional materials and, on March 31, 2023, notified Plaintiff

of its decision to deny her request for 50% extra testing time. (Bugbee Decl. ¶ 25, ECF No. 12-1;

Ex. P to Bugbee Decl., ECF No. 12-1.) Although AAMC denied Plaintiff’s request for additional

testing time, AAMC again approved her request for stop-the-clock breaks and granted Plaintiff

permission to test in a “quiet, distraction-free environment.” (Bugbee Decl. ¶ 25, ECF No. 12-1.)

Prior to issuing its denial, AAMC consulted with two external professionals concerning Plaintiff’s

requested accommodations, Allyson G. Harrison, Ph.D., and Joseph Bernier, Ph.D. (Id. ¶ 22.) Both

outside professionals had expertise in the areas of Plaintiff’s claimed impairments, and both

concluded that Plaintiff’s documentation fell short of supporting her request for 50% extra time on

the MCAT. (Id. ¶¶ 22-24.)

The first outside reviewer, Dr. Allyson G. Harrison, concluded that Plaintiff’s submitted

materials did not support “50% extra test-taking time.” (Ex. N to Bugbee Decl., ECF No. 12-1.)

In reaching this conclusion, Dr. Harrison opined that Dr. Benninger’s evaluation of Plaintiff failed

to demonstrate that Plaintiff was “substantially impaired in her ability to participate equally on the

MCAT,” citing (1) Dr. Benninger’s examination of Plaintiff while she was not on medication

(which makes it difficult for AAMC to determine how she will perform during the MCAT), (2)

the tests Dr. Benninger administered during Plaintiff’s evaluation show only a weak association

with actual executive function problems in real-life, and (3) Plaintiff’s self-reported ADHD

symptoms are “minimally correlated with actual real-world functional impairment.” (Id.) Dr.

Harrison also reviewed Plaintiff’s academic performance dating back to high school, noting that

she “cannot see how [Plaintiff] has been impaired in her academic functioning or ability to

participate equally on timed evaluations.” (Id.) Dr. Harrison did, however, note that “[h]er

conditions may require her to take stop-the-clock breaks in order to calm down, refresh her

attentional resources, manage her anxiety and hyperactivity, and employ learned strategies to cope

with negative cognitions . . . .” (Id.)

The second outside reviewer, Joseph E. Bernier, Ph.D., likewise concluded that Plaintiff’s

documentations did not support her request for 50% extra testing time. (Ex. O to Bugbee Decl.,

ECF No. 12-1.) Dr. Bernier reviewed Plaintiff’s academic performance over the course of her

academic career, opining that “[t]he academic documents suggest that although she may have had

to work harder than many of her peers to achieve the level of success reflected in the record, her

mental disorders did not put her at a significant disadvantage as compared to the general public.”

(Id.) Dr. Bernier, like Dr. Harrison, also took issue with Dr. Benninger’s evaluation of Plaintiff.

Dr. Bernier did not consider Dr. Benninger’s evaluation to be a “comprehensive assessment of

cognitive performance.” (Id.) According to Dr. Bernier, Dr. Benninger evaluated Plaintiff’s

cognitive performance through vocabulary and digit recall subtests and a memory for sentences

subtest, which are single subtests that “generally provide poor construct coverage or measurement,

and the interpretations, diagnoses, and predictions based on single subtests is questionable

practice.” (Id.) Furthermore, Dr. Bernier challenged Dr. Benninger’s determination of Plaintiff’s

impaired functioning because Dr. Benninger relied “on the internal referent of the candidate herself

rather than the external referent of the general population.” (Id.) Dr. Bernier also noted that

Plaintiff’s scores on the reading tests that Dr. Benninger administered placed Plaintiff within the

average range when compared to the general population. (Id.) Dr. Bernier concluded his report by

endorsing “sixty minutes of stop the clock breaks as previously approved, and a low distraction

test setting . . . .” (Id.)

Following AAMC’s denial of Plaintiff’s request for reconsideration, Plaintiff submitted

additional documentation supporting her disability and her need for the 50% extra time

accommodation. (Goldstein Decl. ¶ 2, ECF No. 24.) These documents consisted of letters from her

parents and her pediatrician, a revised personal statement, and a revised assessment from Dr.

Benninger. (See Ex. 2, ECF No. 24.) Both Plaintiff’s pediatrician, Dr. Costlow, and Dr. Benninger

opined that Plaintiff was substantially limited when compared to the general population. (See Ex.

4 to Benninger Decl., ECF No. 19-2; Costlow Decl. ¶¶ 6-7, ECF No. 20-1.)

In light of Plaintiff’s additional documentation, AAMC approved Plaintiff for 25% extra

testing time on the MCAT. (Goldstein Decl. ¶ 3, ECF No. 24.) This approval process involved

consultation with another external reviewer, Mark Greenberg, Ph.D. (Ex. 2, ECF No. 24.) Dr.

Greenberg recommended 25% extra testing time along with the two previously granted

accommodations, based on “the combined effects of anxiety and reading inefficiency leading to

mild levels of functional impairment.” (Id.) But in denying Plaintiff’s request for 50% extra testing

time, Dr. Greenberg identified “myriad problematic aspects to Dr. Benninger’s assessment”:

• No stand-alone validity tests were performed as part of the battery,

departing from a widely recommended professional practice.

• Only one IQ subtest was administered (WAIS-IV Vocabulary), and the very

high obtained score (ss=16,SS=130) was then utilized as the sole reference

point for judging discrepancy and dysfunction. This practice could have had

the effect of magnifying any resulting discrepancy.

• No performance tests of executive function, memory, processing speed or

motor function were administered, as is typical in a work-up for ADHD.

Yet multiple redundant self/other report measure of ADHD symptomatic

were administered without any explanation for this practice.

• Limited achievement tests were administered: the GORT-5 oral reading

battery -- which has an uncertain correlation to one’s ability to read and

respond silently to written text; and just one measure of untimed cloze

reading, the WJ-IV Achievement Series Passage Comprehension subtest.

Scores on these, her two weakest measures, fell in the low average range

(SS=90). No tests of timed word, sentence or paragraph reading, or math

fluency - which are all relevant to the demands of the MCAT -- were given.

* * *

• No continuous performance test (CPT) - considered by some as the “gold

standard” for documenting impaired attentional performance – was

administered.

* * *

• There was no enumeration of DSM-5 Hyperactive ADHD criteria in order

to support the conclusion that AF manifests the “Combined” subtype of this

entity.

• There was minimal assessment of AF’s current mood (limited to the

subscales of the SCL-90-R) despite the presence of an ongoing mood

disorder. Moreover, the SCL-90-R results (based on an unstated normative

group) were actually negative for anxiety and only marginally elevated for

depression

• The Addendum letter does not include scores for the BRIEF Inconsistency

and Negativity, two relevant validity scales.

* * *

• The discussion of the discrepancy between the untimed Passage

Comprehension and the timed GORT-5 Comprehension lacks substance as

the scores differ by only an approximate one-third of a standard deviation.

(Id.)

After reviewing Dr. Greenberg’s report, Dr. Benninger refuted Dr. Greenberg’s

conclusions and reiterated his opinion:

The test results, clinical information, and functional impairment documented in the

initial report are actually quite a classic representation of a very bright individual

that suffers from clinically significant levels of ADHD symptoms. She was able to

manage these moderate to severe symptoms in her daily academic life by spending

much extra effort and time to compensate for the impairments they created.

Unfortunately, this is an often-overlooked burden that almost all individuals with

ADHD have to bear and that even many experts in the field are blind to. Providing

the requested (150%) extra time on a standardized test would level the playing field

for her, so that she would be able to show what she knows.

(Ex. 1, ECF No. 24.)

E. Procedural History

On April 3, 2023, as a result of AAMC’s repeated denials of Plaintiff’s request for testing

accommodations, Plaintiff commenced a state court action for injunctive, declaratory, and

monetary relief against AAMC, based on its allegedly discriminatory conduct against Plaintiff, a

person with an alleged disability. (See Not. of Removal, ECF No. 1.) Accompanying Plaintiff’s

Complaint was her Motion for Temporary Restraining Order and/or Preliminary Injunction. (See

Compl. ECF No. 3; Mot., ECF No. 4.)

On April 7, 2023, AAMC removed the state court action to this Court, and the Court

scheduled a temporary restraining order hearing for April 25, 2023. (Not. of Removal, ECF No. 1;

April 10, 2023 Order, ECF No. 6.) On April 14, 2023, AAMC filed its response in opposition to

Plaintiff’s Motion. (ECF No. 13.) Four days later, Plaintiff moved to reschedule the temporary

restraining order hearing for early June 2023, citing the need for additional time to provide AAMC

with Plaintiff’s additional documentation and to respond to AAMC’s discovery. (ECF No. 14.) In

addition, Plaintiff’s motion indicated that she would not be irreparably harmed by delaying her

testing date to late June. (Id.) The Court granted Plaintiff’s motion to continue. (ECF No. 16.)

On May 5, 2021, Plaintiff filed her reply to AAMC’s opposition. (ECF No. 21.) On May

31, 2023, following a telephone conference with the parties, the Court vacated the temporary

restraining order hearing and authorized additional briefing on Plaintiff’s Motion. (ECF No. 23.)

The parties also agreed to forego a hearing on Plaintiff’s Motion, instead opting for a decision

based on their briefs.

On June 5, 2023, Plaintiff filed her supplemental brief. (ECF No. 24.) AAMC filed its

supplemental brief in opposition on June 9, 2023. (ECF No. 27.) Plaintiff’s Motion is fully briefed

and ripe for review.

II. STANDARD

Rule 65 of the Federal Rules of Civil Procedure provides for injunctive relief when a party

believes it will suffer immediate and irreparable injury, loss, or damage. Fed. R. Civ. P. 65. Still,

an “injunction is an extraordinary remedy which should be granted only if the movant carries his

or her burden of proving that the circumstances clearly demand it.” Overstreet v. Lexington-

Fayette Urban Cnty. Gov’t, 305 F.3d 566, 573 (6th Cir. 2002). Moreover, when a party is seeking

an order mandating affirmative action through the requested injunctive relief, as is the case here,

“the burden is heightened.” Shah v. Fortive Corp., No. 1:22-cv-312, 2022 U.S. Dist. LEXIS

108953, at *7 (S.D. Ohio June 17, 2022) (citing Shelby Cnty. Advocs. for Valid Elections v.

Hargett, 348 F. Supp. 3d 764, 769 (W.D. Tenn. 2018)).

In determining whether to issue a preliminary injunction, the Court must balance four

factors: (1) whether the movant has shown a strong likelihood of success on the merits; (2) whether

the movant will suffer irreparable harm if the injunction is not issued; (3) whether the issuance of

the injunction would cause substantial harm to others; and (4) whether the public interest would

be served by issuing the injunction. Id. (citing Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir.

2000)). These four considerations are balancing factors, not prerequisites that must be met. Id.

(citing United Food & Com. Workers Union, Local 1099 v. Sw. Ohio Reg’l Transit Auth., 163 F.3d

341, 347 (6th Cir. 1998)). “[A] district court is not required to make specific findings concerning

each of the four factors used in determining a motion for preliminary injunction if fewer factors

are dispositive of the issue.” Jones v. City of Monroe, 341 F.3d 474, 476 (6th Cir. 2003), abrogated

on other gds. by Anderson v. City of Blue Ash, 798 F.3d 338, 357 (6th Cir. 2015).

III. DISCUSSION

Plaintiff submits that all four factors weigh in favor of a preliminary injunction.

A. Likelihood of Success on the Merits

Plaintiff must first prove that her claims have a strong likelihood of success on the merits.

While a plaintiff is not required to prove her entire case at this stage, “to establish success on the

merits, a plaintiff must show ‘more than a mere possibility of success.’” Black v. Cincinnati Fin.

Corp., No. 1:11-cv-2010, 2011 U.S. Dist. LEXIS 46852, at *6 (S.D. Ohio May 2, 2011) (quoting

Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 543 (6th Cir.

2007) (internal quotations omitted)). “Although no one factor is controlling, a finding that there is

simply no likelihood of success on the merits is usually fatal.” Gonzales v. National Bd. of Med.

Examiners, 225 F.3d 620, 625 (6th Cir. 2000). “The Court’s preliminary findings are not entitled

to a preclusive effect in the event the case is tried to a fact-finder at a later date, at which time the

ultimate fact-finder may reach a different conclusion.” Cabot Corp. v. King, 790 F. Supp. 153, 156

(N.D. Ohio 1992) (internal citation omitted).

Plaintiff brings her claims under Title III of the ADA, alleging that AAMC violated the

ADA by failing to provide Plaintiff with reasonable accommodations to take the MCAT. Title III

of the ADA provides, in pertinent part, that an entity offering “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. § 12189. AAMC does not dispute that it falls under this provision of the

ADA.

To show a violation of the ADA based on AAMC’s failure to accommodate, Plaintiff must

show (1) she is disabled, (2) her requests for accommodation are reasonable, and (3) that AAMC

denied those requests. See Berger v. Nat’l Bd. of Med. Examiners, No. 1:19-cv-99, 2019 U.S. Dist.

LEXIS 145666, at *55 (S.D. Ohio Aug. 27, 2019). AAMC contends that Plaintiff cannot satisfy

the first two prongs, and therefore she cannot demonstrate a strong likelihood of success on the

merits of her ADA claim. That is, AAMC asserts that (1) Plaintiff has failed to provide the Court

with evidence showing she is disabled within the meaning of the ADA, and (2) even if Plaintiff is

disabled under the ADA, she has failed to show that the accommodations AAMC approved were

unreasonable. (AAMC’s Opp’n at 18-25, ECF No. 13.) The Court begins with AAMC’s first

challenge.

a. Whether Plaintiff Is “Disabled”

A person is disabled under the ADA if she has “a physical or mental impairment that

substantially limits one or more major life activities . . . .” 42 U.S.C. § 12102 (1)(A). On January

1, 2009, the Americans with Disabilities Act Amendments Act (“ADAAA”) amended the ADA to

clarify the criteria for determining whether an individual qualifies as disabled. Congress’s purpose

undergirding the ADAAA was to “reinstat[e] a broad scope of protection to be available under the

ADA” and to reject the “inappropriately high” standards for interpreting the term “substantially

limits” created by two Supreme Court decisions: Sutton v. United Air Lines, 527 U.S. 471 (1999)

and Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002). Taylor v. Specialty Restaurants

Corp., No. 2:12-cv-44, 2014 U.S. Dist. LEXIS 139643, at *9 (S.D. Ohio Sept. 30, 2014) (quoting

ADA Amendments Act of 2008, Pub. L. 110-325, 122. Stat. 3553, § 2 (2008)). Congress

specifically rejected Toyota’s holding that the terms “substantially” and “major” should be

“interpreted strictly to create a demanding standard for qualifying as disabled.” Id. at 9–10.

With respect to the “substantially limits a major life activity” prong, the ADAAA clarifies

that “[t]he determination of whether an impairment substantially limits a major life activity shall

be made without regard to the ameliorative effects of mitigating measures” such as medication. 42

U.S.C. § 12102(4)(E). The ADAAA expands the definition of “major life activities” to include:

caring for oneself, performing manual tasks, seeing, hearing, eating sleeping, walking, standing,

lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating,

and working. 42 U.S.C. § 12102(2)(A)-(B). “Reading is a major life activity under the existing

precedent of this circuit and the amended ADA.” Jenkins v. Nat’l Bd. of Med. Examiners, No. 08-

5371, 2009 U.S. App. LEXIS 2660, at *7 (6th Cir. Feb. 11, 2009) (citing Gonzales, 225 F.3d at

626; 42 U.S.C. § 12102(2)(A) (2006) (amended 2009)). The implementing regulations to the

ADAAA also state that whether an impairment “substantially limits” a major life activity should

not demand extensive analysis and requires an individualized assessment. 29 C.F.R. §

1630.2(j)(1)(iii)-(iv).

But not every impairment constitutes a disability under the ADAAA—that is, to qualify as

a disability, the impairment must substantially limit “the ability of an individual to perform a major

life activity as compared to most people in the general population.” 29 C.F.R. § 1630.2(j)(1)(ii);

see also Bibber v. Nat’l Bd. of Osteopathic Med. Exam’r, Inc., No. CV 15-4987, 2016 U.S. Dist.

LEXIS 48181, at *18 (E.D. Pa. Apr. 11, 2016) (“It is inappropriate under the ADA to compare an

individual to her academic peer group or, in the case of standardized tests, to other test-takers who

are not representative of the general population.”).

The Court’s review of whether a plaintiff is disabled under the ADAAA “usually will not

require scientific, medical, or statistical analysis,” 29 C.F.R. § 1630.2(j)(1)(v), but when

consideration of such evidence is appropriate, the Department of Justice has offered pertinent

guidelines. As the Eastern District of Pennsylvania explained:

The DOJ heavily favors an individualized assessment or evidence that a “qualified

professional has individually and personally evaluated the candidate as opposed to

simply considering scores from a review of documents.” 28 C.F.R. part 36, Appx.

A. It also states that this need for an individualized evaluation is “particularly

important in the learning disabilities context, where proper diagnosis requires face-

to-face evaluation,” and that “[r]eports from experts who have personal familiarity

with the candidate should take precedence over those from, for example, reviewers

for testing agencies, who have never personally met the candidate . . . .”

Bibber, 2016 U.S. Dist. LEXIS 48181, at *19. Along with individualized assessments, courts

across the country have also considered: “(1) a plaintiff’s objective test results as compared to the

average person, (2) a plaintiff’s other activities, including extracurriculars, (3) whether a plaintiff

has a pattern of substantial academic difficulties, and (4) whether a plaintiff has been afforded

testing accommodations in the past.” Berger, 2019 U.S. Dist. LEXIS 145666, at *59 (citing Healy

v. Nat’l Bd. of Osteopathic Med. Examiners, Inc., 870 F. Supp. 2d 607, 620 (S.D. Ind. 2012)). The

regulations also provide that covered entities should give “considerable weight to documentation

of past modifications, accommodations, or auxiliary aids or services received in similar testing

situations.” 28 C.F.R. § 36.309(b)(1)(v).

AAMC has certainly presented some evidence suggesting that Plaintiff’s cognitive abilities

are, at a minimum, average when compared to the general population. AAMC’s outside reviewers

all agree that Plaintiff did not show evidence of substantial limitations when compared to the

general population.1 Beginning with Dr. Harrison, she reviewed Dr. Benninger’s evaluation of

1 The Court is mindful of the Department of Justice’s guidance that “[r]eports from experts who have personal

familiarity with the candidate should take precedence over those from, for example, reviewers for testing agencies,

who have never personally met the candidate . . . .” 28 C.F.R. part 36, Appx. A. But the reports Plaintiff has provided

are not the only pieces of evidence the Court must consider. As stated by the Colorado District Court in a case

presenting similar facts:

Mr. Wright . . . argues that the ‘ADA effectively mandates that the Board provide accommodations

based on the recommendations from professionals, such as Dr. Lucero, who has provided two first-

Plaintiff and concluded that he failed to demonstrate that Plaintiff is “substantially impaired in her

ability to participate equally on the MCAT.” (Ex. N to Bugbee Decl., ECF No. 12-1.) Dr. Harrison

explained that Dr. Benninger’s conclusions were of minimal value because he relied on “self-

reported symptoms of ADHD and Executive Functioning (the BRIEF) and on relatively lower (but

still average) scores on a few unrelated subtests.” (Id.) In reviewing Plaintiff’s test results from her

evaluation with Dr. Benninger, Dr. Harrison noted that Plaintiff fell within the average range on

“Digit Recall,” the “memory for sentences subtest of the SB5,” the passage comprehension subtest

of the WJ-IV, and the GORT. (Id.)

Dr. Bernier, like Dr. Harrison, similarly concluded that “[t]here is no evidence that the

candidate has been an impaired learner as compared to the general population.” (Ex. O to Bugbee

Decl., ECF No. 12-1.) Dr. Bernier challenged Dr. Benninger’s conclusions in large part because

he determined the extent of Plaintiff’s impaired functioning “based on the internal referent of the

candidate herself rather than the external referent of the general population.”2 (Id.)

Notwithstanding Dr. Benninger’s focus on comparing Plaintiff’s strengths to her weaknesses

hand in-person evaluations of Mr. Wright . . . .’ It would certainly make courts’ jobs easier if that

were the case. But a professional evaluation is not the only piece of evidence a court should consider

under the ADA. A diagnosis alone does not satisfy the ADA disability standard . . . . Nor does Mr.

Wright provide precedent that a diagnosis evaluation alone qualifies an individual as disabled under

the ADA. In fact, courts have frequently denied motions for preliminary injunctions where the

plaintiff had a professional evaluation and diagnosis.

Wright v. Nat’l Bd. of Med. Examiners, No. 21-cv-02319, 2021 U.S. Dist. LEXIS 211275, at *20 (D. Colo. Oct. 15,

2021). The Court agrees with Plaintiff that due weight should be given to Dr. Benninger, Dr. Costlow, and Ms.

Campbell’s individualized evaluations. But these evaluations are not the only factors the Court must consider in

resolving whether Plaintiff’s conditions substantially limit her in comparison to the population at large.

2 The Southern District of Indiana succinctly explained this critique:

In other words, a person may exhibit statistically significant variation in test scores sufficient to

support a clinical diagnosis, but this diagnosis is based on an internal referent. When the test scores

are compared to an external referent as the ADA requires — that is, the general population — that

person may nevertheless exhibit average abilities.

Healy v. Nat’l Bd. of Osteopathic Med. Examiners, 870 F. Supp. 2d 607, 620 (S.D. Ind. 2012).

(rather than comparing Plaintiff’s functioning to the general population), Plaintiff’s performance

on the cognitive tests of working memory were “within one standard deviation of the mean-

average compared to others of the same age.” (Id.) As for the reading tests administered, the WJ-

IV and the GORT, Plaintiff was still “average” as compared to the general population. (Id.)

AAMC’s third outside reviewer, Dr. Greenberg, echoed Dr. Harrison and Dr. Bernier’s

conclusions, noting also that Dr. Benninger’s evaluation provided only “weak support for the

presence of substantial functional limitation.” (Ex. B to Greenberg Decl., ECF No. 26-2.) Dr.

Greenberg also observed that Dr. Benninger evaluated Plaintiff via a series of tests that have

“limited applicability” to the MCAT, and the battery that Dr. Benninger did administer was

“heavily over-weighted on [Plaintiff’s] self-report and the reports of her parents on symptom

questionnaires[.]” (Greenberg Decl. ¶¶ 13, 15, ECF No. 26-2.)

Also cutting against Plaintiff’s claims are her past performances—without

accommodations—on other standardized tests. Plaintiff took both the ACT and the SAT twice,

scoring well above average on each exam. On the ACT, her composite scores placed her in the

89th and 94th percentiles—that is, she scored in the top 11% and 6% of students who took the

ACT exam in 2018. (See Ex. M to Bugbee Decl., ECF No. 12-1.) Her best subject scores were in

the 99th percentile (English and Math) and her lowest subject score was in reading, where she

placed in the 54th percentile (i.e., the top 46% of test takers). (Id.) Plaintiff scored even better on

the SAT. (See Ex. D to French Decl., ECF No. 26-3.) Her best SAT score was 1500, which placed

her in the top 2% of examinees. (Id.; see also AAMC’s Supp. Brief at 7, ECF No. 27.) Plaintiff

also took nine AP exams while in high school, earning the highest possible score on four of them.3

3 AP Exams are scored on a scale of 1 to 5, with many U.S. colleges granting college credit for scores of 3 and above.

See About AP Scores, COLLEGE BOARD, https://apstudents.collegeboard.org/about-ap-scores (last visited June 10,

2023). Of Plaintiff’s nine AP exams, she received a score of 5 on four of her exams, a score of 4 on one exam, and a

score of 3 on the other four exams. (Ex. E to French Decl., ECF No. 26-3.)

(Ex. E to French Decl., ECF No. 26-3.) Plaintiff did not request accommodations on any of these

exams, despite reportedly having been provided extra testing time in high school. Thus, Plaintiff’s

“confidence in taking those exams without even attempting to receive accommodations speaks

volumes about whether her [cognitive disorders are] substantially limiting when compared to high

achieving groups of people, let alone the general population.” See Bibber, 2016 U.S. Dist. LEXIS

48181, at *26.

Finally, Plaintiff’s academic history demonstrates an unwavering pattern of academic

success. Over the course of her high school career, Plaintiff earned all A’s in her classes (other

than a single B+ in AP English & Composition). (Bugbee Decl. ¶ 17, ECF No. 12-1.) Impressively,

Plaintiff achieved this academic success while also playing “three varsity sports, lacrosse,

basketball, and soccer,” and participating in other extracurricular activities. (Ex. I to French Decl.,

ECF No. 26-3.) And her success continued at Duke University, where—without any

accommodations—Plaintiff achieved straight A’s in both semesters of her first year and in the fall

semester of her second year. (Ex. G to Bugbee Decl., ECF No. 12-1.)

But the record also contains substantial evidence favorable to Plaintiff. Plaintiff’s treating

physician, Dr. Benninger, explicitly stated that Plaintiff “has severe problems when compared with

the general population with functional impairments including concentrating on tasks, forgetting

what she’s doing in the middle of things, sustaining her attention, forgetting instructions easily,

remembering things even for a few minutes (such as what she reads) and doing more than one

thing at a time.” (Ex. 4 to Benninger Decl., ECF No. 19.) Indeed, during his evaluation of Plaintiff,

her results on the Comprehension Score of the GORT put her in the bottom 25% of achievement

levels. (Id.) Plaintiff’s pediatrician, Dr. Costlow, also recognized a need for Plaintiff to have

extended time when taking the MCAT due to her anxiety. (Costlow Decl. ¶¶ 6-7, ECF No. 20-1.)

She, too, concluded that Plaintiff’s impairment “substantially limits her ability to read, retain what

she reads and concentrate as compared to most people in the general public.” (Costlow Decl. ¶ 6,

ECF No. 20-1.) And Ms. Campbell, a physician’s assistant, also recommended Plaintiff be

permitted to take the MCAT with extra testing time following her evaluation of Plaintiff. (Ex. C

to Bugbee Decl., ECF No. 12-1.)

Plaintiff also has a history of receiving accommodations. Her sworn declaration states that

her high school provided her with “formal and informal accommodations,” including “extra time

to take tests.” (Pl. Decl. ¶ 4, ECF No. 19-1.) Plaintiff also received formal accommodations at

Duke University, beginning in the spring of her sophomore year. (Ex. G to Bugbee Decl., ECF

No. 12-1.) And in Plaintiff’s personal statement submitted to AAMC, Plaintiff detailed her lifelong

struggles to process and retain information in academic settings. (See Ex. B to Bugbee Decl., ECF

No. 12-1.)

Finally, and of particular importance to the issue of whether Plaintiff’s has a disability,

AAMC’s outside experts all endorsed some accommodations for Plaintiff—accommodations that

AAMC granted pursuant to its policy of providing testing accommodations “when the examinee

demonstrates that he or she is disabled within the meaning of the ADA and needs accommodations

to take the examination in an accessible manner.” (Bugbee Decl. ¶ 10, ECF No. 12-1.) Dr. Harrison

noted that Plaintiff’s conditions “may require her to take stop-the-clock breaks”; Dr. Bernier

concluded that stop-the-clock breaks and a low-distraction test setting appeared to be “appropriate

modifications”; and Dr. Greenberg stated that “granting [Plaintiff] 25% extended time (along with

the previously approved break time and separate room) is a reasonable course of action and ensures

that she will be able to test in an accessible manner.” (Ex. N to Bugbee Decl., ECF No. 12-1; Ex.

O to Bugbee Decl., ECF No. 12-1; Greenberg Decl. ¶ 17, ECF No. 26-2.) This is not a case where

dueling sets of experts are diametrically opposed on the issue of the presence of a disability—that

is to say, every expert shares the opinion that some accommodations for Plaintiff are appropriate

due to her conditions. The battleground, instead, takes place on the extent of the testing

accommodations to which Plaintiff is entitled. Thus, the uniformity of opinion among Plaintiff’s

treating physicians and AAMC’s outside reviewers that Plaintiff’s conditions warrant some

accommodations, coupled with AAMC’s decision to permit Plaintiff to test with accommodations

(an implicit admission by AAMC that Plaintiff is disabled), strongly suggests that Plaintiff is

disabled within the meaning of the ADA.

Against this backdrop, the Court admittedly has some reservations about whether Plaintiff

is disabled within the meaning of the ADA. While the record includes evidence that Plaintiff has

an impairment, to be disabled under the ADA, Plaintiff must show that her impairment results in

a substantial limitation as compared to the general population. The evidence currently before the

Court cuts in both directions. But the Court remains cognizant of the “broad scope of protection .

. . available under the ADA,” see Taylor, 2014 U.S. Dist. LEXIS 139643, at *9, and therefore

assumes—without deciding—that Plaintiff has marshalled sufficient evidence to carry her burden

on the issue of whether she is disabled within the meaning of the ADA.

b. Reasonable Accommodation

Assuming Plaintiff is disabled within the meaning of the ADA, Plaintiff must also show

that her request for accommodation is reasonable to prevail on her ADA claim. Berger, 2019 U.S.

Dist. LEXIS 145666, at *55. She has failed to make this showing.

A person who is disabled under the ADA is not entitled to “the best accommodations or

[her] preferred accommodations, but only to a reasonable accommodation.” Knox County, Tenn.

v. M.Q., 62 F.4th 978, 1001 (6th Cir. 2023) (citing Alexander v. Choate, 469 U.S. 287, 300 (1985));

see also Oser v. Capital Univ. Law School, No. 2:09-cv-709, 2009 U.S. Dist. LEXIS 86425, at

*23–24 (S.D. Ohio Sep. 8, 2009) (denying preliminary injunction where plaintiff had been

provided some additional testing time but not as much as his professional recommended); In re

Reasonable Testing Accommodations of LaFleur, 722 N.W.2d 559 (S.D. 2006) (holding that the

South Dakota Board of Bar Examiners did not violate the ADA by approving half as much extra

testing time on the state bar exam than the examinee requested and his supporting professional

recommended, where the Board’s independent external reviewer recommended less extra time

than requested).

The Court concludes that Plaintiff has failed to put forth sufficient evidence on this issue

to justify the extraordinary remedy of a preliminary injunction. AAMC has already provided

Plaintiff with three accommodations: 25% extended testing time, stop-the-clock breaks, and testing

in a separate room. As indicated by AAMC’s outside reviewers, these accommodations address

Plaintiff’s core functional limitations, thus permitting Plaintiff to take the MCAT in an accessible

manner. (See Ex. B to Harrison Decl., ECF No. 26-1 (recommended accommodations would allow

Plaintiff to “refresh her attentional resources, manage her anxiety and hyperactivity, and employ

learned strategies to cope with negative cognitions”); Ex. B to Greenberg Decl., ECF No. 26-2

(opining that (1) 125% testing time addresses the “combined effects of anxiety and reading

inefficiency leading to mild levels of functional impairment,” (2) the stop-the-clock breaks “afford

her the opportunity to manage her stress level if she experiences a flare up of anxiety during

testing,” and (3) testing in a separate room “will help screen her from ambient distractions and

from becoming focused on other test-takers’ activities”).)

Plaintiff’s position to the contrary is unavailing. She contends that she cannot be reasonably

accommodated unless AAMC grants her 50% extra time on the MCAT, citing to the opinions of

Dr. Costlow and Dr. Benninger. (Reply at 11-12, ECF No. 21; Pl. Supp. at 4, ECF No. 25.)

The Court has already discussed a number of concerns it has with Dr. Benninger’s reports,

and these concerns continue to limit the extent to which the Court defers to his conclusions. See

supra Section III.A.a. Moreover, Dr. Benninger provides little more than a conclusory statement

when recommending 50% extra testing time rather than 25% extra time. (Compare Benninger

Decl. ¶ 3, ECF No. 24 with Ex. B to Harrison Decl., ECF No. 26-1 (stating that “research has failed

to support the need for extra test-taking time to compensate for symptoms of ADHD,” explaining

that “[e]ven college students with well-documented reading impairments require only 25% extra

time in order to have equal access to timed tests”) and Greenberg Decl. ¶ 16, ECF No. 26-2

(describing 25% extra testing time as “often the most appropriate level of accommodation in mild

cases of ADHD and . . . in medical conditions that can potentially interfere with concentration,”

noting also that in “empirical demonstrations . . . the majority of students who are provided higher

levels of extended time don’t actually utilize it, and that 25% extended time can be effective in

normalizing the test taking performance of individuals with ADHD”).) As for Dr. Costlow, she

only concludes that Plaintiff needs an unspecified “extra time” accommodation—not an

accommodation for 50% extra testing time. (Costlow Decl. ¶ 9, ECF No. 20-1.)

On the record before the Court, the Court cannot say that Plaintiff has a strong likelihood

of showing that her requested accommodation is reasonable in light of the testing accommodations

that AAMC has already approved—accommodations that specifically address the MCAT-related

limitations arising from Plaintiff’s conditions. That is, the Court finds little evidence in the record

indicating that AAMC’s alternative accommodations are unreasonable accommodations for

Plaintiff’s disability. The Court therefore finds that Plaintiff has failed to meet her burden of

establishing a strong likelihood of success on the merits.

Lastly, although the inability to show a likelihood of success on the merits, standing alone,

is enough to deny Plaintiff’s Motion, Plaintiff has also failed to demonstrate that the other

preliminary injunction factors weigh in favor of her requested relief.

B. Irreparable Harm

Even if Plaintiff had shown a strong likelihood of success on the merits, to obtain the

preliminary relief she seeks, she would also need to demonstrate that “irreparable injury is likely

in the absence of an injunction.” Winter v. NRDC, Inc., 555 U.S. 7, 22 (2008). Irreparable harm

must be “actual and imminent” rather than “speculative or unsubstantiated.” Abney v. Amgen, Inc.,

443 F.3d 540, 552 (6th Cir. 2006).

Plaintiff contends that if she takes the MCAT without the extra time accommodation, she

“will be at a severe disadvantage compared to other candidates because she will not have extra

time as needed due to her disability,” thus negatively impacting “her chances of being accepted

into a medical school or the medical school of her choosing.”4 (Reply at 14, ECF No. 21.) Plaintiff,

however, has not provided the Court with any evidence suggesting that the current

accommodations in place are so inadequate that her future admission into medical school of her

choice is at risk. While this Court has concluded that lost educational opportunities and the inability

to pursue a vocation are sufficient to establish irreparable injury, scant evidence exists here

suggesting such an injury is likely in the absence of a preliminary injunction. See Berger, 2019

4 Plaintiff’s briefing also asserts that the absence of injunctive relief would cause irreparable harm by delaying when

she would be able to take the MCAT, thus reducing her odds of getting into her preferred medical school while

exacerbating her cognitive disorders. (Reply at 13-14, ECF No. 21.) As the Court understands this argument, the

irreparable harm stems from the delay—and ensuing consequences—in not being able to take the MCAT in June.

Since Plaintiff’s filing, however, she has confirmed with the Court that she will sit for the June MCAT regardless of

the Court’s decision on her motion for preliminary injunction, thus ensuring she will not be delayed in applying to

medical school, and therefore mooting her contention that such delay amounts to irreparable harm.

U.S. Dist. LEXIS 145666, at *78–80; Sellers v. Univ. of Rio Grande, 838 F. Supp. 2d 677, 687

(S.D. Ohio 2012).

As Plaintiff notes in her briefing, when weighing an applicant’s application to medical

school, MCAT scores and grades receive the “Highest Importance Ratings.” (Reply at 15, ECF

No. 21 (citing Using MCAT Data in 2023 Medical Student Selection, AAMC,

https://www.aamc.org/system/files/2022-06/2023%20MCAT%20Data%20Selection%20Guide

%20Online.pdf (last visited June 12, 2023)).) The relative weight of these metrics will likely

benefit Plaintiff—that is, her grades are unequivocally exceptional, and her track record on

standardized exams is impressive as well. Consequently, Plaintiff’s blanket assertion that, she may

not get into the medical school of her choosing, or even any school at all, without 50% extra testing

time (when she has already been approved for 25% extra time), is both “unsubstantiated” and

“speculative.” See Abney, 443 F.3d at 552; see also Bach v. Law Sch. Adm. Council, 2014 U.S.

Dist. LEXIS 124632, *5–6 (M.D.N.C. Feb. 14, 2014) (denying preliminary injunction; describing

plaintiff’s argument regarding his likely test results if he tested without accommodations to be

speculative, as he had successfully taken other standardized tests without accommodations).

Moreover, even if the Court were to agree that Plaintiff would suffer irreparable harm in

the absence of injunctive relief, injunctive relief is not warranted on this basis alone because the

Court has already found that Plaintiff has not shown a strong likelihood of success on the merits

of her claims. See Gonzales, 225 F.3d at 625.

C. Balance of the Harms

In assessing the third factor relevant to granting a preliminary injunction, “courts must

balance the competing claims of injury and must consider the effect on each party of the granting

or withholding of the requested relief.” Winter, 555 U.S. at 24 (citation omitted).

Here, the balance of equities also weighs against injunctive relief. Plaintiff, operating under

the belief that she is disabled within the meaning of the ADA, contends that “no individual or

entity will suffer substantial harm” should the Court grant her Motion. (Mot. at 6, ECF No. 4;

Reply at 15, ECF No. 21.) As discussed in Section III.A.b, supra, the Court has serious doubts as

to whether Plaintiff’s request for 50% extra time is reasonable. Given these doubts, the award of

potentially unfair accommodations on the June MCAT before a merits determination will affect

the comparable validity of the scores of other examinees. Such an award would not only harm

other medical school applicants who tested without an equivalent benefit, but it would also

compromise AAMC’s interest in ensuring that the MCAT is administered fairly to all examinees.

D. The Public Interest

Lastly, “[i]n exercising their sound discretion, courts of equity should pay particular regard

for the public consequences in employing the extraordinary remedy of injunction.” Winter, 555

U.S. at 24 (quoting Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982)).

Here, Plaintiff has not shown that the public interest weighs in her favor. The public

certainly has an interest in ensuring that covered entities provide adequate accommodations to

those with disabilities, as required under the law. See Rush v. National Bd. of Medical Examiners,

268 F. Supp. 2d 673, 679 (N.D. Tex. 2003) (“[F]ulfilling the ADA’s requirement that entities

offering licensing examinations provide reasonable accommodations to disabled individuals”

furthers the public interest); Sellers, 838 F. Supp. 2d at 688 (“‘there is a significant public interest

in eliminating discrimination against individuals with disabilities’ and . . . this interest is furthered

by appropriate injunctive relief”) (internal citation omitted). However, the public also has an

interest in the faithful administration of the ADA. See Valles v. ACT, Inc., No. 4:22-CV-00568,

2022 U.S. Dist. LEXIS 125769, *15 (E.D. Tex. July 15, 2022) (finding that public has interest “in

ensuring that the ADA is enforced according to its requirements”). The public likewise has an

interest in the fair administration of the MCAT. See Wright, 2021 U.S. Dist. LEXIS 211275, at

*27 (finding the potential harm to “other test takers, and the public—which depends on the fair

administration of medical-licensing requirements—outweighs the potential harm” of erroneously

denying a preliminary injunction); Bach, 2014 U.S. Dist. LEXIS 124632, at *8 (noting that “the

fair administration of standardized tests” furthers the public interest).

Because Plaintiff has failed to demonstrate that she is likely to succeed in showing that

AAMC wrongfully denied her accommodations under the ADA, the Court cannot find that

granting the requested relief would serve the public interest. Plaintiff is not entitled to a preliminary

injunction.

IV. CONCLUSION

After balancing the preliminary injunction factors, the Court concludes that they weigh

against granting relief—that is, because Plaintiff has failed to show a strong likelihood of success

on the merits, coupled with an inadequate showing as to the remaining preliminary injunction

factors, Plaintiff’s Motion is hereby DENIED. (ECF No. 4.)

IT IS SO ORDERED.

6/20/2023 s/Edmund A. Sargus, Jr.

DATE EDMUND A. SARGUS, JR.

UNITED STATES DISTRICT JUDGE