Judge Sotomayor Knows About Learning Disabilities - “She Got It!”

07/14/09
by Wrightslaw
 

As we watched the confirmation hearings on Judge Sonia Sotomayor’s nomination to the Supreme Court, Pete said: “In the Bartlett case, Judge Sotomayor wrote the best description of  learning disabilities that I’ve ever read in a legal decision. She got it!”

What is the Bartlett case? Who educated Judge Sotomayor about learning disabilities?

How do Judge Sotomayor’s decisions help those who must make informed decisions about accommodations for people with learning disabilities today?

Marilyn Bartlett had a Ph.D. in Educational Administration and a law degree from Vermont Law College. Ms. Bartlett was also diagnosed with dyslexia, a reading disability that affects reading speed, fluency and automaticity.

After completing law school, Ms. Bartlett worked as an associate in a law firm where she received excellent reviews. When she  took the New York Bar Exam, she requested accommodations for her dyslexia, including extra time, permission to record her essays on tape, permission to circle answers in the test booklet.

The Bar claimed that she didn’t have a disability and denied her applications for accommodations.

Ms. Bartlett took the bar exam five times after the Bar denied her requests for accommodations. She was unable to pass the exam and had to leave her law firm job because she was unable to pass the bar exam.

In 1993, Marilyn Bartlett sued the New York State Bar for discrimination.

21-Day Trial in U. S. District Court

In 1997, a 21-day trial was held in the Southern District of New York. Judge Sonia Sotomayor presided.

Marilyn Bartlett was represented by Joanne Simon, Esq. of New York City. Her lead expert witness was Dr. Rosa A. Hagin, Research Professor of Psychology at New York University School of Medicine and Professor Emerita at Fordham University.

In the District Court decision, Judge Sotomayor described Ms. Bartlett’s learning disability as follows:

“For those of us for whom words sing, sentences paint pictures, and paragraphs create panoramic views of the world, the inability to identify and process words with ease would be crippling. Plaintiff, an obviously intelligent, highly articulate individual, reads slowly, haltingly and laboriously. She simply does not read in the manner of an average person …

“Having witnessed all of the trial testimony and having studied the thousands of pages of exhibits, affidavits and depositions, I conclude that plaintiff is not able to read in the same condition, manner or duration as an average reader when measured against ‘the average person having comparable training, skills and abilities.’ 29 C.F.R. § 1630.2(j)(3)(i). For this reason, I find that plaintiff is substantially impaired under the law, and she is therefore entitled to receive reasonable accommodations in taking the New York State Bar Examination.

Bartlett v. New York State Bd. of Law Examiners, 970 F.Supp. 1094 (S.D.N.Y. 1997)

Judge Sotomayor found Dr. Hagin’s testimony persuasive:

“She [Hagin} placed 'considerable emphasis' on Bartlett's performance on the Diagnostic Reading Test (DRT), which 'demonstrat[ed] plaintiff’s slow rate of reading’ … On the DRT, when compared to college freshmen, Bartlett’s reading rate of 195 words per minute, timed, placed her in the 4th percentile, while her reading rate of 156 words per minute, untimed, placed her below the 1st percentile … Dr. Hagin concluded that ‘plaintiff does not read in the same condition, manner or duration of the average adult reader in that plaintiff does not read with the automaticity or speed of an average reader.”

The State Bar appealed to the U. S. Court of Appeals for the Second Circuit.

Appeal to Second Circuit
 

On appeal, the Second Circuit affirmed in part and vacated in part. In their 1998 decision, the appeals court held that the State Bar’s decision was based on an “arbitrary standard” of disability:

“Dr. Bartlett, who has fought an uphill battle with a reading disorder throughout her education … is among those for whom Congress provided protection under the Americans With Disabilities Act and the Rehabilitation Act.

“Dr. Bartlett’s cognitive impairment—her difficulties in automatically decoding and processing the printed word—limits her major life activities of learning and reading to a substantial degree.

“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.

Bartlett v. New York State Bd. of Law Examiners, 156 F.3d 321 (2d Cir. 1998)

Relevance of Decisions in Bartlett

The decisions in Bartlett provide guidance to those who must  determine if a child or adult has a learning disability and needs accommodations. The Court held that:

“A single test cannot be used as the sole predictor of ability and professionals should not generalize reading competence based on a single measure.

“Learning disabilities cannot be captured by psychometric measures alone and clinical observations are essential to the diagnosis of learning disabilities.

“Research shows that while students with learning disabilities perform significantly better with extra time; extra time does not have a significant impact on the performance of normally achieving students.

“A person’s ability to get good grades is not the bottom line. If it were, then an extremely bright and hardworking student, who uses alternative routes to achieve academic success, could never be found to have a learning disability.

“This is not what the ADA intended.”

You can read this decision at http://www.wrightslaw.com/law/caselaw/case_Bartlett_Bar_2d_9809.htm

The State Bar appealed to the U.S. Supreme Court.

To learn what happened next, read Judge Sotomayor Wrote Best Description of Learning Disabilities in Bartlett v. NY Board of Law Examiners at http://www.wrightslaw.com/news/09/bartlett.sotomayor.htm