Bar exam boards wrestle with learning disabilities questions.

Professional licensing boards, such as bar examiners, are facing increased pressure to devise nondiscriminatory policies to accommodate the learning disabilities of license applicants.

Recent cases--including one decided by the U.S. Court of Appeals for the Second Circuit last fall and another under way in California--have focused on granting accommodations to law school graduates with learning disabilities who take the bar exam--the proverbial gateway to the legal profession.

In New York, the Second Circuit forced the state examining board to disregard the conclusions of an outside consultant who had determined that bar applicant Marilyn Bartlett did not have a diagnosable learning disability that required accommodations under the Americans with Disabilities Act (ADA).

"The board has no expertise in assessing learning disabilities," wrote Thomas Meskill, chief judge of the influential Second Circuit. "Rather, the board's expertise is in defining the minimum qualifications necessary to practice law in New York." (Bartlett v. New York State Board of Law Examiners, No. 97-9162, 1998 WL 611730 (2d Cir. Sept. 14, 1998).)

Bartlett, a 50-year-old law school graduate, failed the bar exam five times after receiving no accommodations, such as extra time, for her reading disorder. She failed it a sixth time after she was granted a few requested accommodations.

In bringing suit against the New York State Board of Law Examiners in the early 1990s, Bartlett contended that her disorder constituted a disability under the ADA and that she should receive adequate accommodations that would allow her to compete on a level playing field with her fellow bar applicants who have no learning disabilities.

She sought extended time on the exam, permission to tape-record her essays, and the opportunity to circle multiple-choice answers in the test booklet rather than using the computerized answer sheet. The board denied her requests.

At the trial level, the U.S. District Court for Southern New York refused to defer to the board's expert consultant, who used diagnostic tests to find that Bartlett's disorder was not severe enough for it to be deemed a disability.

The Second Circuit affirmed the lower court, finding that Bartlett is disabled within the meaning of the ADA.

"Reasonable accommodation of this disability will enable her to compete fairly with others in taking the examination, so that it will be her mastery of the legal skills and knowledge that the exam is designed to test--and not her disability--that determines whether or not she achieves a passing score," Meskill wrote.

Sid Wolinsky, director of litigation for Disability Rights Advocates in Oakland, California, said the Bartlett decision will help all bar exam applicants who have learning disabilities. He said he was especially troubled by the examining board's policy of consulting an outside expert in order to give Bartlett a thumbs up or thumbs down on her request for accommodations under the ADA.

"There was no interactive process as required under the ADA," Wolinsky said. "It was `I'm sorry, you haven't proven your case." They set up the standard such that they can always turn down an applicant.

"This has to be an interactive process," he said. "The [examining board] cannot just sit back and say `You tell me what you need and I'll say yes or no.'"

John McAlary, deputy executive secretary for the New York State Board of Law Examiners, said the board has not yet decided whether to appeal the Second Circuit's decision.

"It was the Board of Law Examiners' opinion and just about everyone in the testing field's opinion that an outside expert's opinion should have been obtained," he said. "And the federal and state courts said we should retain someone to review [the applications for accommodations]. It's like we're damned if we do and damned if we don't."

McAlary said the number of exam applicants who request ADA accommodations has risen rapidly in recent years. Of the 8,791 applicants who took the New York exam last July, 402 requested special accommodations and 332 were granted.

"That's a significant amount," McAlary said. "In 1993, at the time of Ms. Bartlett's complaint, there were 181 requests and 155 were granted."

Erica Moeser, president of the National Conference of Bar Examiners, was circumspect about the potential impact of the Bartlett decision.

"Some of the basic concepts of the ADA that were foreign in the early 1990s are not foreign now," Moeser said. "The ADA was truly a new thing in the early 1990s, and I think now we are seeing changes in the way candidates are presenting their documentation [of diagnosed learning disabilities] and in the way bar examiners are reviewing the candidates' requests [for accommodations].

"I have watched this evolution of the [ADA]--which I think most people would say has been rapid--and we are moving rapidly away from the kind of fact pattern that was present in Bartlett."

Moeser said she believes the Bartlett decision forces the question of how to determine the "appropriate role of [the examining board] in assessing [an exam applicant's] documentation."

Wolinsky said that more cases like Bartlett's are likely to find a place in courthouses around the country. His group is leading a class-action fight on behalf of similarly learning disabled bar applicants in California. (Mueller v. Committee of Bar Examiners of the State Bar of California, No. C-97-033009-FMS (N.D. Cal. filed Sept. 28, 1998).)

"All of these cases have in common that the entities thought they could compensate for their ignorance by merely substituting a consultant," Wolinsky said. "They pick somebody who is medically oriented when, in fact, people who have this physical science orientation seem to take the view that if they can't see the disability, it isn't there.

"The depth of ignorance about learning disabilities is quite astonishing," Wolinsky said. "Any hidden disability seems to provoke suspicion. This suspicion then turns into hostility."