Bartlett v. New York State Bd. of Law Examiners

Decision Date14 September 1998
Docket NumberNo. 97-9162,97-9162
Citation156 F.3d 321
Parties8 A.D. Cases 1004, 8 A.D. Cases 996, 13 NDLR P 164 Marilyn J. BARTLETT, Plaintiff-Appellee, 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-Appellants.
CourtU.S. Court of Appeals — Second Circuit

John W. McConnell, Deputy Solicitor General, State of New York, New York City (Dennis C. Vacco, Attorney General of the State of New York, Thomas D. Hughes, Assistant Solicitor General, Judith T. Kramer, Rebecca Ann Durden, Assistant Attorneys General, State of New York, New York City, of counsel), for Appellants.

Jo Anne Simon, Brooklyn, NY (Dorothy A. Wendel, Law Office of Jo Anne Simon, Brooklyn, NY, Ruth Lowenkron, Karen Fisher Gutheil, New York Lawyers for the Public Interest, Inc., New York City, of counsel), for Appellee.

Bill Lann Lee, Acting Assistant Attorney General, Jessica Dunsay Silver, Marie K. McElderry, Department of Justice, Washington, DC, for Amicus Curiae United States.

John S. Willems, White & Case, New York City, Kleo J. King, Mary Lu Bilek, Association of the Bar of the City of New York, New York City, for Amicus Curiae Association of the Bar of the City of New York.

Robert A. Burgoyne, Fulbright & Jaworski, Washington, DC, Erica Moeser, National Conference of Bar Examiners, Chicago, IL, for Amicus Curiae National Conference of Bar Examiners.

Janet D. Carson, National Board of Medical Examiners, Philadelphia, PA, Pamela C. Deem, Carey, Hill & Scott, Charleston, WV, for Amici Curiae National Board of Medical Examiners and Federation of State Medical Boards of the United States, Inc.

David McMillin, Linda R. Blumkin, Elise C. Boddie, Sherab Posel, Fried, Frank, Harris, Shriver & Jacobson, New York City, for Amici Curiae The Ass'n on Higher Education and Disability, Disability Rights Advocates, Disability Rights Education and Defense Fund, Inc., The Int'l Dyslexia Ass'n, The Learning Disabilities Ass'n of America, The Nat'l Ass'n of Protection and Advocacy Systems, The Nat'l Center of Higher Education for Learning Problems Program, The New York Branch of the Orton Dyslexia Society, The New York State Commission on the Quality of Care for the Mentally Disabled, The Society of American Law Teachers, and United Cerebral Palsy Associations of New York State, Inc.

Before: MESKILL and CABRANES, Circuit Judges, and NICKERSON, * District Judge.

MESKILL, Circuit Judge:

This is an appeal from a July 14, 1997 judgment of the United States District Court for the Southern District of New York, Sotomayor, J., after a 21 day bench trial, finding appellee, Dr. Marilyn Bartlett, disabled within the meaning of the Americans with Disabilities Act of 1990(ADA), 42 U.S.C. § 12101, et seq., and the Rehabilitation Act of 1973 (Rehabilitation Act), 29 U.S.C. § 701, et seq., and entering an injunction against the appellant, New York State Board of Law Examiners (Board) requiring it to provide Dr. Bartlett with reasonable accommodations in taking the New York State Bar Examination. The district court also awarded $12,500 in damages to compensate her for fees paid in connection with past attempts to pass that examination. See Bartlett v. New York State Bd. of Law Examiners, 970 F.Supp. 1094 (S.D.N.Y.1997). The district court granted qualified immunity to the individual defendants. That decision has not been appealed.

We affirm in part, vacate in part and remand for further proceedings. We agree Specifically, this appeal presents the legal issues of (1) whether the district court erred in refusing to defer to the Board's determination that Dr. Bartlett is not disabled; (2) whether the district court erred in concluding that Dr. Bartlett is disabled under the ADA and the Rehabilitation Act in her ability to work and thus entitled to accommodations in taking the New York State Bar Examination; (3) whether the district court erred in concluding that the Board is subject to the strictures of the Rehabilitation Act; and (4) whether the district court erred in awarding Dr. Bartlett compensatory damages in the amount of $12,500 from the Board for fees paid in connection with the five bar examinations that she failed.

albeit for different reasons, with the district court's ultimate conclusion that 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 ADA and the Rehabilitation Act. As a result, she is entitled to reasonable accommodations in sitting for the New York bar examination. The ADA and the Rehabilitation Act do not guarantee Dr. Bartlett examination conditions that will enable her to pass the bar examination--that she must achieve on her own. What Congress did provide for, and what the Board has previously denied her, is the opportunity to take the examination on a level playing field with other applicants.

We conclude that the district court properly declined to defer to the Board's determination regarding Dr. Bartlett's disability. We also conclude that because the record demonstrates that Dr. Bartlett suffers from a disability that substantially limits her major life activities of reading and learning, it was error for the district court to reach the issue of whether Dr. Bartlett is disabled in her ability to work. However, because Dr. Bartlett nevertheless does suffer a learning or reading impairment that rises to the level of a substantial limitation cognizable under the ADA and the Rehabilitation Act, we find no error in the district court's ultimate conclusion that Dr. Bartlett is entitled to reasonable accommodations in taking the New York State Bar Examination. We also agree with the district court that the Board is subject to the strictures of the Rehabilitation Act and that Dr. Bartlett is entitled to compensation for at least some of the fees paid in connection with past attempts to pass the New York State Bar Examination without accommodations. Because we disagree with the district court on the proper amount of compensatory damages, we vacate and remand on that narrow ground only.

BACKGROUND

At trial, the district court found the following relevant facts. Plaintiff-appellee Dr. Marilyn Bartlett is a 49 year old woman with a cognitive disorder that impairs her ability to read. Despite her limitation, she has earned a Ph.D. in Educational Administration from New York University, a law degree from Vermont Law School, and has met all prerequisites to sit for the New York State Bar Examination (the bar examination). The defendant-appellant Board is a State entity charged with testing and licensing applicants seeking admission to the New York State Bar.

Since 1991, Dr. Bartlett has taken the bar examination five times. On at least three and possibly four separate occasions, she has applied as a reading disabled candidate to take the bar examination with accommodations. 1 Dr. Bartlett has sought unlimited or extended time to take the test, permission to tape record her essays and to circle her multiple choice answers in the test booklet. The Board has denied her request each time, contending that her application does not support a diagnosis of a reading disability or dyslexia. In total, Dr. Bartlett has taken the examination four times without accommodations and has yet to pass. On July 20, 1993, after the Board denied her most recent application for accommodations, she commenced On July 26, 1993, the parties entered into a stipulation. Under its terms, Dr. Bartlett received accommodations during the July 1993 bar examination that included time-and-a-half for the New York portion of the test and the use of an amanuensis to read the test questions and to record her responses. In addition, the Board allowed Dr. Bartlett to mark the answers to the multiple choice portion of the examination in a question book rather than on a computerized answer sheet. However, the parties agreed that if Dr. Bartlett passed the examination, the results would not be certified unless she prevailed in this lawsuit. Despite accommodations, Dr. Bartlett failed the examination.

this action in the district court alleging, among other things, violations of Title II of the ADA, 42 U.S.C. § 12131 et seq., and § 504 of the Rehabilitation Act, 29 U.S.C. § 794. In her complaint, she sought, among other things, injunctive relief in the form of reasonable testing accommodations and compensatory damages for fees paid in connection with past attempts to pass the examination.

The Board has denied Dr. Bartlett's requested accommodations because its expert on learning disabilities, Dr. Frank Vellutino (Dr. Vellutino), does not believe that she has dyslexia or a reading disability. Dr. Vellutino's opinion is grounded primarily on Dr. Bartlett's performance on two subtests of the Woodcock Reading Mastery Test-Revised (the Woodcock), a battery of tests commonly employed to assess learning disabilities. Because Dr. Bartlett achieved scores above the 30th percentile on two subtests of that battery, Dr. Vellutino concluded that she did not have a reading disability.

The two subtests at issue are the Woodcock "Word Attack" and "Word Identification." These tests are designed to measure a subject's " '[w]ord identification and phonetic decoding or word analysis skills (ability to "sound out" a word).' " Bartlett, 970 F.Supp. at 1112. Specifically, the "Word Attack" subtest requires the subject to sound out 45...

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