An examination of the New York State Board of Law Examiners' policy towards individuals with learning disabilities.

• Author: Snyder, Michael T.

INTRODUCTION

The Americans with Disabilities Act of 1990 (ADA) prohibits all licensing, certification, and testing authorities from discriminating against applicants with mental or physical disabilities.(1) Titles II and III of the ADA govern the entities that create and administer examinations.(2) These sections contain provisions requiring the testing entities to accommodate individuals with mental and physical disabilities.(3) As an increasing amount of candidates for the New York State Bar Examination are requesting accommodations for more time,(4) these provisions are becoming extremely important for the testing entities and for all of the applicants who take the exam.(5) These requests are most often from learning disabled applicants.(6)

The issue of whether individuals with learning disabilities should be allowed more time on the bar exam has recently been litigated in federal court in the Western and Southern Districts of New York.(7) This is a controversial issue with many implications that reach beyond how disabled applicants should be treated while taking the New York State Bar Examination, including raising the fundamental question about the need for the exam altogether. The decision to grant or deny these accommodations opens up room for debate on a variety of related issues including: (i) whether the bar exam tests minimum competency; (ii) whether accommodations undermine the integrity of the test; (iii) whether working under tight time constraints is a skill necessary for competent attorneys; and (iv) what qualifies as a learning disability. These are not easy questions and until they are resolved the applicants for the New York State Bar Examination, both disabled and non-disabled, will be left to wonder if the test is administered fairly, or is fair at all.

The purpose of this Comment is to examine the various issues that arise when learning disabled applicants seek accommodations for the bar exam, and to consider the path the Board of Examiners (the "Board") should follow in dealing with these requests. Part I provides a brief overview of the ADA, how it applies to the bar exam, and the regulations that enforce it.(8) Part II provides an overview of the New York State Bar Examination, what the exam entails, and the processes and policies that govern requests for accommodations.(9) Part III analyzes the arguments for and against the proposition that the bar exam actually tests minimum competency.(10) Part IV explains the current views on what is a learning disability.(11) Part V reviews the recent federal court cases involving learning disabled applicants seeking accommodations for the bar and medical exams, and includes an overview of the Board's approach to requests for accommodations.(12) The sixth and final part lays out the possible solutions to the problem of accommodating persons for the bar exam, in contrast to the Board's current approach, and the feasibility of each one.(13)

This Comment does not purport to decide whether the bar exam as a whole is valid. This is an issue too broad for the confines of this Comment; however, assuming that the bar exam is valid, it is the position of this Comment that the test need not be administered under tight time constraints for all applicants. Therefore, the Board's approach to requests for accommodations from individuals with learning disabilities is flawed.

1. THE AMERICANS WITH DISABILITIES ACT

   The ADA was passed in 1990 to "provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities."(14) The statute defines a disability as "a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual."(15) Mental disabilities such as specific learning disabilities fall into this definition because learning is considered a major life activity.(16)

   Under the ADA, applicants who request accommodations for the bar exam must establish that they are "`qualified individual[s] with a disability.'"(17) According to the ADA this means

   an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.(18) The section of the ADA applicable to the bar exam provides that "[a]ny person that offers examinations or courses related to applications, licensing, certification, or credentialing for secondary or postsecondary 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."(19) According to the regulations

   [a]ny private entity offering an examination covered by this section must assure 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).(20) This regulation is interpreted to apply to the Board despite the "private entity" language because the "person" language of the statute is defined to include the government and government agencies.(21) It is well settled that if an applicant for the bar exam establishes "a specific impairment that substantially limits his or her learning ability, the Board is required to make `reasonable accommodations' to ensure that the applicant is not disadvantaged in taking the exam."(22)

   The scope and type of accommodations that licensing entities are required to provide are promulgated by the Department of Justice (DOJ) under the authority of the ADA.(23) The ultimate goal in deciding accommodations is to ensure that the modifications will allow "the disabled individual an equal opportunity to demonstrate his or her knowledge or ability."(24)

   The regulations provide that "[r]equired modifications to an examination may include changes in the length of time permitted for completion of the examination and adaptation of the manner in which the examination is given."(25) The regulations contain a list of auxiliary aids and services that the DOJ may require testing organizations to provide disabled test takers.(26) Testing organizations must provide these aids unless they can prove that doing so would "fundamentally alter the measurement of the skills or knowledge the examination is intended to test or would result in an undue burden."(27)

   The purpose of the regulations and the statute itself is not to serve as affirmative action for the persons with disabilities or to give them an advantage over non-disabled persons; rather, the statute seeks to make sure that persons with disabilities have the same opportunities as non-disabled persons.(28) To that end the regulations state that "[a]lternative arrangements must provide comparable conditions to those provided for nondisabled individuals."(29) This raises the issue of whether accommodations for the bar exam given to individuals with learning disabilities gives them an unfair advantage over non-disabled test takers. If the ability to perform under time constraints is part of what the bar purports to measure, then extra time would fundamentally alter the purpose of the test and give the individuals with learning disabilities an unfair advantage.

2. THE NEW YORK STATE BAR EXAMINATION

   1. The Test

      The New York State Bar Examination is a two day test that encompasses roughly six hours each day and includes an essay section and a multi-state multiple choice section.(30) According to the Board, the bar exam tests the minimum necessary abilities for the competent, unsupervised practice of law.(31)

      According to the Board's Handbook of Information:

      The New York bar examination is given twice a year, usually on the last Tuesday and Wednesday in February, and on the last Tuesday and Wednesday in July, in various test centers located in New York City, Albany and Buffalo. The examination is given on two successive days and is divided into morning and afternoon sessions on each day. The first day is devoted to the New York portion of the examination which is prepared by the New York Board. The second day is devoted to the Multistate Bar Examination (MBE), which is prepared by the National Conference of Bar Examiners ("NCBE").(32) The New York portion consists of six essay questions and fifty multiple choice questions.(33) This part of the exam is divided into two 3 and 1/4 hour sections starting at 9:00 a.m. and 1:30 p.m.(34) The questions are based on New York law except where federal law is involved.(35) According to the Handbook, the essay questions are designed to test an applicant's ability to analyze a given set of facts, identify the issues involved and applicable principles of law, and with those, to reason to a sound conclusion.(36) Credit is given based on reasoned analyses of the legal issues and principles involved.(37)

   2. Procedures for Requesting Accommodations

      New York Judiciary Law requires the Board to provide a procedure for review of applications for special arrangements when taking the bar.(38) According to the rules of the Board, applicants seeking special arrangements because of a disability must file the accommodation request form included in the test application packet.(39) Documentation of the claimed disability must be submitted with the application packet and written proof must contain, inter alia, the claimed causal relationship...