LEARNING DISABILITIES AND THE STATE BAR EXAMINATION

As published in The Buffalo Law Journal October 18, 2001

Marilyn Bartlett, who had taken the New York State Bar Exam several times and failed, alleged that her dyslexia substantially limited her major life activity of reading, or alternatively, working. She claimed that the state's Board of Law Examiners discriminated against her under the ADA (titles II and III) by failing to provide her with reasonable accommodations when taking the bar exam.

On remand, the United States District for the Southern District of New York rejected the board experts' contention that testing alone could be relied upon in determining whether the applicant was disabled-and determined that clinical evidence must also be considered.

This case gives us guidance as to the remedial purpose of the ADA and how to weigh and balance self-accommodations when determining whether someone is disabled. In essence, the case stands for the proposition that one may be highly functional and yet still be substantially limited in a major life activity.

WHAT HAPPENEND

The Board of Law Examiners alleged that since the plaintiff had not exhibited a pattern of substantial academic difficulties, psychometric test results could be relied upon in assessing leaning difficulties.

However, the plaintiff's leading expert stated that the behaviors that an individual uses when taking a test must considered, not merely the test results.

Vocational experts who can provide evidence about the behaviors and mitigating factors that an individual has employed to complete essential work functions are most helpful in attempting to determine whether that person has a learning disabilities.

In this case, the plaintiff, Marilyn Bartlett, suffers from a learning disability (dyslexia) that impairs her reading and her ability to work as a lawyer. At issue is whether the plaintiff suffers from impairment, and if so, whether it rises to the level of a substantial limitation recognizable under the ADA, thus entitling her to accommodations in taking the New York State bar Examination.

The plaintiff's expert witness was Rosa Hagin, a respected researcher in the field of learning disabilities. Hagin believes that the most critical element in assessing whether and adult has a leaning disability is that person's clinical history, including the type and severity of the difficulties they experienced when learning to read and write and the type of help the have received.

In this case, the plaintiff had employed the following coping strategies, which helped her in academic and work endeavors but did not assist her in reading: (1) having other people read to her; (2) taking classes that grade based on written papers; (3) studying in groups: and (4) dictating letters for others to write for her. Coping mechanisms that assisted the plaintiff in reading were: (1) using her fingers to move from line to line; (2) using an index card with a hole cut out when reading more difficult text; (3) re-reading text multiple times; and (4) highlighting important words in the text.

DETERMINATION STANDARDS

The determination of whether an individual has a disability is based upon the effect that impairment has on the life of the individual. Thus, Judge Sonia Sotomayor held that the effect of the plaintiff's reading impairment on her life, even with all her self-accommodations, is profound and that she is substantially limited in the major life function of reading, in comparison to most people.

This finding is most interesting in light of the plaintiff's educational background. She received a bachelor's degree in early childhood teacher education, a master's of education degree in special education, a doctorate in educational administration. Her attempts to self-accommodate have not been used against her; rather, this case represented recognition of how mitigating factors have affected her life.

Lastly, this case also showed that in protecting the integrity of the bar exam, the Board of Law Examiners should not turn the legitimate concern into a bias against learning-disabled applicants.

The bar exam is a test, and the learning-disabled may not test well, thus justifying some form of accommodation. Other states have used panels of experts to evaluate learning disabled applicants. In New York State, the taking of the bar exam and the process of allowing learning-disabled subjects to take the exam with appropriate accommodations deserve our best efforts to ensure that the bar mirrors the diversity it represents. The case of Marilyn J. Bartlett v. New York State Board of Law Examiners 970 f.supp 1094, 1997, 2001 U.S. Dist. Lexis 11926 (decided Aug. 15, 2001).

Lindy Korn is president and CEO of Diversity Training-Workplace Solutions, Inc. and is of counsel to Siegel, Kelleher and Kahn representing plaintiffs in discrimination claims.