Hand-up or Handout? the Americans With Disabilities Act and Unreasonable Ccommodation of Learning Disabled Bar Applicants: Toward a New Paradigm

• Publication year: 1999

34 Creighton L. Rev. 611. HAND-UP OR HANDOUT? THE AMERICANS WITH DISABILITIES ACT AND UNREASONABLE CCOMMODATION OF LEARNING DISABLED BAR APPLICANTS: TOWARD A NEW PARADIGM

Creighton Law Review

Vol. 34

W. RAY WILLIAMS(fn+)

Those dealing with the general subject of learning disability, should, perhaps, be as fully informed about what problems need not be considered as learning disabilities in the usual sense as about those, which should.

There is a large percentage of the school population in this country (it might run as high as [fifteen percent]) who willhave difficulty in school simply because of their low intelligence . . . .(fn1)

Intelligence, operationally defined, is the aggregate capacity of the individual to act purposefully, to think rationally, and to deal effectively with his environment . . . . National and racial differences do exist - probably of both genetic and environmental origins, in varying degrees. But the fact is that these differences are not large or relevant in the individual case. An IQ is merely relative brightness . . . . When it is asserted that intelligence tests are unfair to the disadvantaged and minorities, one must be mindful that they are simply recording the unfairness of life.(fn2)

The letter explained that Samantha had a learning disability . . . and would need the following accommodations: "time and one-half on all quizzes, tests, and examinations;" doubletime on any mid-term or final examination; examinations in a room separate from other students; copies of my lecture notes; and a seat at the front of the class. Samantha, I was informed, might fall asleep in my class, and I should be particularly concerned to fill her in on any material she missed while dozing . . . . Samantha, offered the pillow of learning disability on which to slumber, [and] was denied . . . access to a dimension of self-understanding.(fn3)

PROLOGUE

W's(fn4) father is a physician and her mother a newspaper journalist. Upon entering school, W's teachers noticed that though she appeared bright, she had trouble in reading and concentrating for extended periods. W's parents had her examined by the family doctor, who found no medical problems, and by a neurologist. The neurologist administered a number of cognitive tests, which included an Intelligence Quotient ("IQ") and reading exam. The tests revealed that W had an above average IQ, although she scored below average on the various achievement tests. The report was sent to the school board, which had their psychologist perform similar tests that revealed the same results. Based on the discrepancy between W's IQ and achievement scores, the school board labeled her learning disabled. The parents were relieved to have isolated the problem and elated that now their daughter would be entitled to a panoply of accommodations to address her learning difficulties which included, among other things, special instruction in reading and writing. Throughout grammar and secondary school, W received accommodations, which included extra time on all exams. Thereafter W performed up to expectations. She graduated from high school with a 4.2 grade point average ("GPA") (exceeded 4.0 because she received extra points for advanced placement classes). W received extra time on Scholastic Achievement Test ("SAT"), scored well, and was accepted into Oberlin College. After completing her Bachelor of Arts, she entered the Harvard's John F. Kennedy School of Government and received a master's degree. W then applied and was accepted in Yale Law School. Because she had always received extra time on college exams, the SAT, and the Law School Admission Test ("LSAT"), she sought extra time on the bar exam to accommodate her learning disability. The bar examiners denied the request. W nevertheless sat for the bar exam, but failed. W commenced a lawsuit under the Americans with Disabilities Act ("ADA"), alleging that the board of examiners discriminated against her by failing to reasonably accommodate her learning disability. W presented evidence of her learning disability diagnosis and the accommodations afforded in college and law school. The bar examiners settled, W received extra time, passed the bar, and was hired at a major New York law firm.

B(fn5) is the oldest of five children raised by a single parent. B's mother worked as a postal worker to support the family. B seemed to be bright, enjoyed school, and received good grades. B, however, performed poorly on the state assessment tests, which were required for passage to the next grade. Perplexed at the difference between her classroom performance and test scores, a child study team evaluated her. The tests revealed that B had an IQ slightly below average and read below the average for her grade and age, but apparently B had learned to compensate with diligent study and assistance from her mother. The school informed B's mother that but for the low IQ score, she might have been considered learning disabled. Instead, her test scores indicated that she might just be a slow learner with comprehension problems. B's mother decided that she would work with B to improve her reading ability. B's reading ability improved substantially as she advanced through school because she worked extremely hard. B was extremely active in high school activities; among other things, she was a class leader and headed the debate team. Despite all her efforts to self accommodate her impairment, B continued to be plagued by reading difficulties. B scored poorly on the SAT but was accepted into college because she had attended a pre-college program throughout high school. B graduated from Kean College and entered CUNY-Law School. Throughout law school, she compensated for her reading difficulties by multiple readings of all of her assignments both aloud and silently, listening to tapes, attending tutorials and outlining extensively.

After graduating from law school, B secured a job with Legal Services. B failed the bar exam on her first two attempts because her slow reading prevented her from finishing the exam. If she failed the exam a third time, B would lose her job. B consulted with the board of bar examiners about receiving extra time because her slow reading prevented her from completing the exam. The board advised her that she could only qualify for special accommodations if she presented documentation that she was learning disabled, as evidenced by a discrepancy between her IQ and reading test scores. She was further advised that in order to be eligible for special accommodations, the discrepancy could not be attributed to external factors such as culture, economics or inadequate instruction.

I. INTRODUCTION

In the past three decades, the United States government has largely abandoned its mission of uplifting the downtrodden. Protection of the poor and disempowered has waned, and preservation of civil rights and affirmative action initiatives is withering. The federal judiciary(fn6) displays what one observer calls a "growing discomfort withthe slightest hint of special preferences."(fn7) With one notable exception, the collective national consciousness is becoming less sympathetic toward efforts on behalf of racial minorities and other traditionally underrepresented groups, notwithstanding claims of past or present discrimination.(fn8) The exception is the protection of the disabled.(fn9) No longer are disabled persons summarily excluded from America's plenty. The position,(fn10) if not the sentiment, has shifted from indifference and exclusion to accommodation and differential treatment.(fn11)Ironically, disabled individuals,(fn12) are gaining significant protection while the identifiable minorities are losing ground.

The pro-disability posture is largely due to incremental legislative initiatives passed during the last three decades.(fn13) The expansive progression of legislation culminated with the passage of the comprehensive, "Americans with Disabilities Act of 1990" ("ADA"),(fn14) whichaffects nearly all segments of society by greatly expanding private and public obligations to those with disabilities. Professional licensing organizations,(fn15) like state boards of bar examiners, historically insulated from civil rights claims,(fn16) have been forced to grapple with the concept of "reasonable accommodations."(fn17)

What constitutes a reasonable accommodation for disabled applicants has been a thorny issue for state boards of bar examiners, and other professional licensing authorities, since the passage of the ADA. The decision to grant or deny accommodation in any context implicates a number of policy concerns. The particular issue of accommodation on the bar examination crystallizes some of the major issues about the application of the ADA that the courts and American society will increasingly have to face.

On the one hand, the reach of the ADA, enacted after Congress determined that over forty million disabled Americans were being denied opportunities afforded other citizens,(fn18) is broad. The congressional mandate is to eliminate discrimination(fn19) in all areas of life(fn20) by placing the disabled on equal footing by making allowances for their circumstances. The ultimate goal is greater inclusion. The ADA was not intended, at least facially, to confer an advantage.(fn21) The assumption is, of course, that inclusion can be accomplished without discriminating against the non-disabled and unduly burdening...