ADA Requires Bar Examiners to Provide Accommodations
for Applicant with Learning Disability

By Laura F. Rothstein
Health Law & Policy Institute

On September 14, 1998, the Second Circuit Court of Appeals issued an important opinion in the case of Bartlett v. New York State Board of Law Examiners, 1998 U.S. App. LEXIS 22361 (2d Cir. 1998). The court followed the recent Supreme Court lead in Americans with Disabilities Act (ADA) cases in reading the statute broadly in light of congressional intent. The case involved Marilyn Bartlett, who applied to take the New York state bar examination with accommodations to her learning disability. The New York bar had denied the requested accommodations (including additional time, tape recording essay answers, and circling multiple choice answers). The denial was based on the Board's determination that Dr. Bartlett did not have a disability entitling her to reasonable accommodations. The district court had held that this determination was a violation of the ADA and Section 504 of the Rehabilitation Act.

The Second Circuit's agreement with the district court is significant in a number of respects. The appellate court concurs in the lower court's assessment of the appropriate degree of deference to the expertise of the state agency in making these determinations. It also affirms the finding that the Rehabilitation Act applies to the New York Board because applicants use vouchers from state agencies to pay fees. Most significant, however, is the decision regarding whether Dr. Bartlett is disabled within the statute. The appellate court reads the definition under the Rehabilitation Act and the ADA even more broadly than the lower court. Its reading, if applied by other courts, will have substantial significance for individuals with learning disabilities in higher education and professional certification settings.

To be entitled to reasonable accommodations, one must demonstrate that there is a substantial limitation to one or more major life activities, that one has a record of such an impairment, or that one is regarded as being so impaired. To determine whether someone with a learning disability meets the definition requires two findings. First, there must be a major life activity implicated. Second, there must be a substantial limitation in carrying out that activity. The lower court had found for Dr. Bartlett on both counts by deciding that she was substantially limited in the major life activity of work. Major life activities are defined as including "walking, seeing, hearing, speaking, breathing, learning, and working." 28 C.F.R. Section 35.104. The lower court had determined that the major life activity at issue was working because a professional exam was involved and that the appropriate determination was whether Dr. Bartlett's learning disability significantly restricts her ability to perform a class of jobs or a broad range of jobs when compared to the average person with comparable training, skills and abilities. When work is not the major life activity at issue, the comparison is with the average person in the general population.

The Second Circuit applied the definition even more broadly, thus agreeing with the result that she is covered by the statute, by providing guidance to future courts that will address other cases involving individuals with learning disabilities. The court determined that the lower court erred in determining that Dr. Bartlett was not substantially limited in the major life activity of reading or learning. The lower court had determined that because she had self accommodated, she had achieved roughly average reading skills when compared to the general population, thus she was not substantially limited in that major life activity. The appellate court disagreed by deciding that a disability should be assessed without regard to mitigating measures, including self accommodation. The court further found that the test used to measure her reading limitations did not adequately measure the ability to read in a timely and automatic manner.

The conclusion that disabilities should be assessed without regard to mitigating measures is one that has not been one reached by all courts, although there may be a change in that trend. See, e.g., Washington v. HCA Health Services of Texas,1998 U.S. App. LEXIS 21551 (5th Cir. 1998).

The decision in this case is likely to have a major impact on how professional licensing boards and institutions of higher education respond to requests for accommodations from individuals with learning disabilities. The decision signals a broad reading of the ADA and highlights the fact that individuals with learning disabilities in adult settings will generally have developed coping skills and that this does not mean they are not still substantially limited in major life activities.

Also significant for these entities is the discussion of deference to these entities. In this case, the Board's expert had determined that Dr. Bartlett was not disabled. The Board asserted that the district court had erred in not according considerable judicial deference to this finding. The appellate court notes that a factfinder is entitled to deference because of expertise on technical matters foreign to the experience of most courts. The Board's expertise is in defining minimum qualifications for the practice of law. Its expert evaluator is thus not entitled to considerable judicial deference. Therefore, it is not that the Board's expert is not to be given deference, but where the Board is the defendant, this expertise may be challenged.

What guidance should institutions affected by this decision draw from the case, assuming similar reasoning is applied by other federal courts? The guidance is that the definition of who is disabled is to be read broadly. This guidance is reinforced by the Supreme Court's decisions in the Yeskey and Bragdon cases, both of which were broad readings of the ADA although in different contexts. See discussions of these Supreme Court decisions in Bragdon v. Abbott -- Supreme Court Decision Addresses Application of Americans with Disabilities Act to Individuals with HIV and Supreme Court Decides Yeskey Case.

Evaluators of learning disabilities must be sure that they are using testing instruments appropriate to what is being tested. In this case, tests that did not involve timing were used. Dr. Bartlett's speed of reading was substantially limited, and this was not appropriately tested by the Board's evaluator. Additional clinical judgment was required.

Another important guidance from this case is the danger of using automatic percentile cutoffs for determining eligibility or disability. The court in this case found that the expert's determination that anyone who scored above a certain percentile on the subtests used (which were themselves problematic) did not have a reading disability.

The National Collegiate Athletic Association (NCAA) settlement with the Justice Department also involves an adjustment in the use of cutoff criteria, and the need to individualize assessments when eligibility for NCAA scholarships is measured by standardized test scores, grade point averages, and core course requirements. The recent settlement agreement involves a change in the NCAA automatic determinations of eligibility.

Institutions would do well to draw upon the increased technical assistance in making valid and reasonable assessments about learning disabilities and appropriate accommodations.

09/17/98