Problem : In re Application of Heart

B. Glesner Fines 2009

Instructions for role play - ATTORNEY

You are an attorney in the state of Central, which has adopted the current version of the ABA Model Rules of Professional Conduct. You have been contacted by a recent law school graduate, Pat Heart, regarding advice on an admissions issue. She has apparently been denied admission to the bar and would like your assistance.

Central’s rules for admission are the same as those of your state. Central uses the National Conference of Bar Examiners for its process of character and fitness screening.

You will be meeting Ms. Heart for an initial interview. The intake form outlining the information your paralegal gathered in the intake interview is attached as is a you’re your overly-ambitious law clerk prepared for you in anticipation of what she thought might be an issue that would arise in the interview. Your goals in this interview should be to determine:

What is Ms. Heart want?

Can you help her?

Would she like you to represent her?

Fees are not an issue – your senior partner has asked that you take on this representation pro bono. Time is an issue, however, as you don’t want to be wasting your time or your client’s pursuing goals that are unrealistic.

To prepare for this meeting, you should review the Supreme Court rules regarding admission to practice law and the corresponding regulation of the board of bar examiners for your state. You may also want to review the standard character and fitness form used by the National Counsel of Bar Examiners. You can see that form at

http://www.ncbex.org/character-and-fitness/services1/blank-forms/

Arrange to meet with your client for a 30-minute interview (we will do this in class)

Telephone Intake Form

Name: Pat Heart

Address: 500 East Main Street, Everycity, Central

Phone: (816) 235-2380 (home)

Email: pat.heart@yahoo.com

Employment: Midwestern Central University Law Library, clerk

Nature of problem: bar admission

Notes: Ms. Heart went to law school at MCU Law school in August three years ago and graduated this past May in the top 1/3 of class. Received disability accommodations on testing in law school due to test anxiety and non-specific cognitive disorders. Requested accommodation for July bar exam but was denied. Now has to appear for hearing regarding her application to take the February bar.

Other parties involved?

Midwestern Central University Law School

Board of Bar Examiners

Consulted with other Attorneys?

Yes

Special program officer for Board of Bar Examiners

Chairman of Board of Bar Examiners (Terry Garrison)

Prior representation in this or related matter?

No

Intake by Pauline Paralegal

□ Disclaimer of current representation statement

□ Confidentiality statement

□ Explanation of representation letter sent

□ Fee statement sent

Appointment date and time: [Next class period] 11:00 am

□ Calendared

Appendix : Research Memorandum

To: Attorney

From: Clerk

Re: ADA and Bar Accommodations

Reference: Heart

Issue: Has a state violated the Americans with Disabilities Act if it denies testing accommodations on the bar exam to an applicant who has been diagnosed with a nonspecific Central Processing Disorder and test anxiety and has been accommodated in law school on examinations?

Answer: Predicting outcomes in ADA cases is very difficult, given a variety of standards used to define “disability” in the context of learning disabilities. However, the trend has been to narrow those definitions, making proof of a disability based on learning disorders more difficult and success unlikely.

Analysis:

State bar examiners must comply with Title II of the Americans with Disabilities Act, 42 U.S.C. § 12101 (2006), which prohibits discrimination by a public entity on the basis of a disability. In particular, 42 U.S.C. § 12132 provides that "Subject to the provisions of this title, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.". Title III of the act requires entities that offer licensing examinations to provide reasonable accommodations to disabled individuals. 42 U.S.C. § 12182 ("Any person that offers examinations or courses related to applications, licensing, certification, or credentialing for secondary or post-secondary 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.").

To prevail in an ADA suit, Ms. Heart must prove: (1) that she has a disability; (2) that she is otherwise qualified for the benefit in question; and (3) that she was excluded from the benefit due to discrimination solely on the basis of the disability. For Ms. Heart, the most significant hurdle will be demonstrating that she has a disability under the terms of the act.

As an initial matter of proof, Ms. Heart must have sufficient documentation of a disability. The ADA gives three definitions of "disability": "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." Thus the threshold requirement is proof that one has (or has a record of or is regarded as having) an mental impairment.

Merely having been accommodated by the law school is not sufficient proof of a disability. Moreover, even a clinician’s report may not be sufficient if it does not result in a clear and unequivocal diagnosis of a recognized mental impairment. Dubois v. Alderson-Broaddus College, Inc., 950 F. Supp. 754, 758-59 (N.D. W. Va. 1997). Ms. Heart may have difficulty in establishing this requirement alone because her diagnosis has included “non specific” cognitive abnormalities. The diagnosis of “test anxiety” may not be considered a “mental impairment” at all, but a normal reaction to tests. The common method of diagnosing learning disabilities is to compare IQ with performance on certain tests. However, even this standard diagnostic technique may be called into question by the court. Consider the court’s analysis in Baer v. Nat'l Bd. of Med. Examiners, 392 F. Supp. 2d 42 (D. Mass. 2005), in which a student sued to be allowed additional time on the medical boards based on her ADHD.

There is also an apparent gap between the plaintiff's very high IQ scores and her actual performance on certain tasks that suggests an impairment of some kind and degree. It may be granted that evidence of a disparity between a person's overall intelligence, IQ, or ability and her actual performance on exams or in school generally might support a finding of a mental impairment. See Gonzales v. Nat'l Bd. of Med. Exam'rs, 225 F.3d 620, 629 (6th Cir. 2000), cert. denied, 532 U.S. 1038, 149 L. Ed. 2d 1002, 121 S. Ct. 1999 (2001). On the other hand, poor performance on exams might also be attributable to numerous other factors, such as anxiety, stress, nervousness, cautiousness, poor organization, poor time management, lack of motivation, lack of appropriate preparation, or weakness in a particular subject matter. Argen v. New York State Bd. of Law Exam'rs, 860 F. Supp. 84, 88 (W.D.N.Y. 1994); Pazer v. New York State Bd. of Law Exam'rs, 849 F. Supp. 284, 287 (S.D.N.Y. 1994).

Note that the Baer case involved a student who was requesting accommodations for a disability even more specific and widely accepted as a mental impairment than is Ms. Heart. Yet, the court held that the denial of testing accommodations did not violate the ADA because, in part, she had not proven that she had a disability.

Even with proof of a specific, generally-recognized mental impairment, to qualify as a disability, Ms. Heart must show that the impairment substantially limits her in a major life activity. Major life activities include basic activities "that the average person in the general population can perform" with little or no difficulty, including "manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." To determine the existence of a qualifying "disability" in claims involving learning disabled individuals, courts have focused on the major life activities of reading, learning, and working. In Sutton v United Air Lines, Inc., 527 U.S. 471 (1999), the United States Supreme Court held that the determination whether an individual has a disability under the ADA must be an individualized inquiry. In Toyota Motor Mfg., Ky., Inc. v Williams, 534 US 184 (2002), the Supreme Court held that, in determining whether an employee is substantially limited in major life activities, the critical inquiry is whether the worker's impairments prevented or restricted her from performing tasks that were of central importance to most people's daily lives, rather than tasks that are central to the particular job for which they are requesting accommodations. Finally, the Court has held that, in determining whether one is substantially limited, the court must consider limitations in light of mitigating measures. So, for example, in Sutton, the plaintiff’s severe myopia was correctable with glasses, so that the applicant for an airline pilot job was not considered “disabled” under the act.

The “average person” test, in particular, will make it difficult for Ms. Heart to demonstrate that she has a disability. Because Ms. Heart has performed above average through most of her academic career without any accommodations, she is not substantially limited (compared to the general population) in the life activity of learning. This analysis was the approach taken by the court in Price v. National Board of Medical Examiners, 966 F. Supp. 419 (S.D.W. Va. 1997)(Medical students with learning disabilities were not entitled to accomodations because, compared with the "average person in the general population" the students were superior learners.) Likewise, the court in Argen v. New York State Bd. of Law Exam'rs, 860 F. Supp. 84, 86 (W.D.N.Y. 1994) affirmed the denial of accommodations on the New York State Bar Exam because the applicant, who had been diagnosed with a learning disability, scored average to above-average on the reading tests of the defendant's expert. Thus, the court reasoned, his ability to read was not substantially limited in comparison to the average person.

Especially as to test anxiety, courts have been very reluctant to recognize this condition as a disability that substantially interferes with a major life function. The court in McGuinness v. University of New Mexico School of Medicine, 170 F. 3d 974 (10th Cir. 1998), for example, found that a medical student whose anxiety disorder interfered with his ability to take chemistry and mathematics tests was not substantially limited in the major life activity of "academic functioning" because he was able to mitigate the anxiety by changing his study habits and because "an impairment limited to specific stressful situations...is not a disability." Id. at 980.

The best authority supporting Ms. Heart’s request for accommodations under the ADA is the series of cases in the litigation between a bar applicant and New York State Board of Examiners. In this case a woman diagnosed with a form of dyslexia requested accommodations on the New York State Bar Exam. The district court found that the ADA required accommodations because Ms. Bartlett was "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities." Bartlett v. New York State Bd. of Law Exam'rs, 970 F. Supp. 1094 (S.D.N.Y. 1997). The court of appeals took a different approach, reasoning that it was the major life activity of reading that should have been the object of the district court’s analysis. The court held that the district court should not have taken into account Ms. Bartlett’s history of self-accommodations in finding that she was not substantially limited in reading.. Bartlett v. New York State Bd. of Law Exam'rs, 156 F.3d 321 (2d Cir. 1998) However, the Supreme Court of the United States granted certiorari and vacated and remanded in light of its decisions holding that consideration of self accommodation was proper. New York State Bd. of Law Exam'rs v. Bartlett, 527 U.S. 1031-32, 144 L. Ed. 2d 790, 119 S. Ct. 2388 (1999) (mem.).

In the final iteration of this litigation, the court of appeals once again held that the district court had applied the wrong legal standard when it found that Bartlett was not substantially limited with respect to reading because she has "roughly average reading skills (on some measures) when compared to the general population." The court commented that “It is not enough that Bartlett has average skills on "some" measures if her skills are below average on other measures to an extent that her ability to read is substantially limited. The court remanded for consideration of whether Bartlett was substantially limited in the major life activity of reading by her slow reading speed, or by any other "conditions, manner, or duration" that limits her reading "in comparison to most people." Bartlett v. New York State Bd. of Law Examiners, 226 F.3d 69 (2d Cir 2000). On remand, five years after the first district court decision in this case, the district court issued the injunction requiring accommodations. Bartlett v. N.Y. State Bd. of Law Exam'rs, 2001 U.S. Dist. LEXIS 11926 (S.D.N.Y. Aug. 15, 2001).

If Ms. Heart can convince the court that she has an impairment that substantially interferes with a major life activity as compared to the general public, she may be able to succeed in obtaining her requested accommodations; however, she should be prepared to undertake lengthy and expensive litigation.