Bartlett v. New York State Bd. of Law Examiners, 93 Civ. 4986(SS).

• Decision Date: 03 July 1997
• Docket Number: No. 93 Civ. 4986(SS).,93 Civ. 4986(SS).
• Citation: 970 F.Supp. 1094
• Parties: Marilyn J. BARTLETT, Plaintiff, v. NEW YORK STATE BOARD OF LAW EXAMINERS; James T. Fuller, Individually and as Executive Secretary, New York State Board of Law Examiners; John E. Holt-Harris, Jr., Individually and as Chairman, New York State Board of Law Examiners; Richard J. Bartlett, Individually and as Member, New York State Board of Law Examiners, Laura Taylor Swain, Individually and as Member, New York State Board of Law Examiners, Charles T. Beeching, Jr., Individually and as Member, New York State Board of Law Examiners and Ira P. Sloane, Individually and as Member, New York State Board of Law Examiners, Defendants.
• Court: U.S. District Court — Southern District of New York

Page 1094

970 F.Supp. 1094

Marilyn J. BARTLETT, Plaintiff, v. NEW YORK STATE BOARD OF LAW EXAMINERS; James T. Fuller, Individually and as Executive Secretary, New York State Board of Law Examiners; John E. Holt-Harris, Jr., Individually and as Chairman, New York State Board of Law Examiners; Richard J. Bartlett, Individually and as Member, New York State Board of Law Examiners, Laura Taylor Swain, Individually and as Member, New York State Board of Law Examiners, Charles T. Beeching, Jr., Individually and as Member, New York State Board of Law Examiners and Ira P. Sloane, Individually and as Member, New York State Board of Law Examiners, Defendants.

No. 93 Civ. 4986(SS).

United States District Court, S.D. New York.

July 3, 1997.

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Jo Anne Simon, Patricia Ballner, Brooklyn, NY, for plaintiff.

Dennis Vacco, Attorney General of State of New York, New York City, Judith T. Kramer, Rebecca Ann Durden, Assistant Attorneys General, for defendants.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

OPINION

SOTOMAYOR, District Judge.

INTRODUCTION

This case, tried to the bench in 21 days of testimony accompanied by exhibits and briefs aggregating to more than 5000 pages, principally devolves to the meaning of a single wordi — substantially — as used in the Americans with Disabilities Act (the "ADA"), 42 U.S.C. §§ 12101-12213 (1995) and the Rehabilitation Act, 29 U.S.C. §§ 701-796 (1985) ("Section 504" or the "Rehabilitation Act"). Both Acts define a disability as "a physical or mental impairment that substantially limits one or more of" an individual's "major life activities." 42 U.S.C. § 12102(2)(A) (1995 Supp.); 29 U.S.C. § 706(8)(B) (1996 Supp.) (emphasis added).

Plaintiff claims she suffers from a learning disability that impairs her reading and her ability to be able to work as a lawyer. At issue in this case is whether plaintiff suffers from an impairment, and if so, whether it rises to the level of a substantial limitation cognizable under the ADA, thus entitling her to accommodations in taking New York State's Bar Examination. She sues for injunctive and other relief under Titles II and III of the ADA, Section 504 of the Rehabilitation Act, the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and 42 U.S.C. § 1983.

The evidence at trial has convinced me that Marilyn Bartlett suffers from a learning deficit that evinces itself as a difficulty in reading with the speed, fluency and automaticity of an individual with her background and level of intellectual ability. Despite this impairment, plaintiff obtained a Ph.D. in Educational Administration and a law degree. By virtue of superior effort and not a small amount of courage, Marilyn Bartlett has been able to succeed academically and professionally despite the limitations her impairment has placed upon her.

But this case asks whether, in light of the confined language of the law, plaintiff is not merely impaired, but disabled.

The term "substantially limited" is defined in 29 C.F.R. § 1630.2(j)(1)(ii) as:

(ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.

(emphasis added).¹ Similarly, with respect to the major life activity of working, "substantially limited" is defined by 29 C.F.R. § 1630.2(j)(3)(i) to mean "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" (emphasis added). Regulations such as the foregoing must be accorded substantial deference because they reflect and incorporate active Congressional intervention in their fashioning. See School Bd. of Nassau County v. Arline, 480 U.S. 273, 279, 107 S.Ct. 1123, 1126-27, 94 L.Ed.2d 307 (1987) (citing Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 634-35, 104 S.Ct. 1248, 1254-55, 79 L.Ed.2d 568, & nn. 14-16 (1984)) (construing regulations adopted pursuant to the Rehabilitation Act).

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. I reject the basic premise of defendants' experts that a learning disability in reading can be identified solely by a person's inability to decode, i.e., identify words, as measured by standardized tests, and I accept instead the basic premise of plaintiff's experts that a learning disability in reading has to be identified in the context of an individual's total processing difficulties.

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.

For the reasons to be discussed, I deny plaintiffs equal protection, due process, and § 1983 claims.

I award her injunctive relief, and compensatory, but not punitive, damages.

BACKGROUND

I. UNDISPUTED FACTS

The following consists substantially of undisputed facts taken from the joint pretrial order submitted by the parties. The Court has added, where indicated, some additional facts to this section in order to clarify or complete the presentation set forth in the undisputed facts agreed to by the parties.

A. Parties

Plaintiff is a law school graduate who has met all the qualifications necessary to take the New York State Bar Examination. Defendants John Holt-Harris, Jr., Richard J. Bartlett, Laura Taylor Swain, Charles T. Beeching, Jr., Ira P. Sloane, and James T. Fuller, as Executive Secretary, are the members of the New York State Board of Law Examiners (the "Board"), and as such are responsible for the administration of the New York State Bar Examination.

B. The Bar Examination

The Board is authorized to conduct a written bar examination, twice a year, consisting of legal problems in both "adjective and substantive law." (N.Y.Comp.Codes R. & Regs. tit. 22, § 520.7 ("22 NYCRR")).

The Bar Examination is given over two days and tests the candidates' knowledge of legal principles and concepts that are relevant and important to the practice of law. The Board's mandate is to test for minimal competence to practice law. One day is devoted to answering the New York portion of the test, created by the Board and consisting of 50 multiple-choice questions and six essay questions. Unless an accommodation of extra time is granted for a disability, the New York portion of the test must be completed within six hours: a three-hour session in the morning and a three-hour session in the afternoon. The second day, which may be taken in another state, is devoted to the 200 multiple-choice questions of the Multistate Bar Examination ("MBE"), created by the National Conference of Bar Examiners. The MBE normally takes six and one-half hours. If the candidate elects to take the MBE in New York, it is administered by the Board as part of the New York State Bar Examination. A combined score of 660 on the MBE and the New York portion of the test is needed to pass the Bar Examination. According to trial testimony, spelling errors in responding to questions are not penalized on the Bar Examination. The Court accepts plaintiff's contention, however, that difficulties in spelling affects the clarity of the presentation and detracts from the expression of concepts.

Title 22 NYCRR § 220.13 authorizes the Board to adopt, amend or rescind rules it deems necessary and proper to enable it to discharge its duties. Title 22 NYCRR § 6000.4(a) permits applicants to apply for accommodations for the Bar Examination based upon a disability. It is the policy of the Board to provide accommodations in testing conditions to candidates with disabilities to the extent such accommodations are reasonable, consistent with the nature and purpose of the examination, and necessitated by the candidate's disability.

The Board has provided, inter alia, the following accommodations to applicants with disabilities: granted access to food and drink, provided a private room in which to take the examination and large print examinations, permitted up to double the amount of time over two days to take the examination, and approved use of a computer or amanuensis to record answers. If the MBE is taken in New York by a candidate to whom the Board has granted accommodations, the same accommodations apply to the MBE portion of the test.

To request accommodations, an applicant completes a form enclosed with the application and returns it with supporting documentation to the Board. See 22 NYCRR § 6000.4(b). The supporting documentation must state the nature of the candidate's disability, the requested accommodation, the causal relationship between the disability and the applicant's ability to take the Bar Examination without the requested accommodations, and the reason the specific accommodation requested by the candidate is required. See 22 NYCRR § 6000.4(c).

The Board's rules also require applicants to provide documentation of the three most recent testing accommodations, if any, granted to the candidate by academic institutions, licensure authorities, or other test administrators. See 22 NYCRR § 6000.4(c).

The...