<< CONTENTS >>

(Part I) LATE BREAKING NEWS: BARTLETT V. NYS BOARD OF LAW EXAMINERS -- Chalk One Up for Our Side

(Part II) BARTLETT V. NYS BOARD OF LAW EXAMINERS (cont)

(Part III) GUIDELINES FOR DOCUMENTATION OF PSYCHIATRIC DISABILITIES GRAB A R.O.P.E. FROM DAIS

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<< LATE BREAKING NEWS >>

THE BARTLETT DECISION IS IN... AGAIN!!!

As I was preparing this double issue of the DAIS Newsletter, the word came down that the District Court decision in the Bartlett case had been released. I chucked a great deal of what I had written (actually, I didn't throw it out -- you'll see it in an upcoming newsletter! GRIN), and have spent the better part of the last 2 weeks trying to read through the lengthy decision -- and figure out what it means to the field of DSS in higher education. You are about to read my take on the subject. Since the decision focuses specifically on issues of documentation of disability, I have also included a short piece on documentation of psych disabilities. I know that most of the readers are currently involved in the throes of a new school year. That means new students, reevaluation of the needs of continuing students, and a whole lot of review of disability documentation. As always, what you read here are MY views on the subject -- for what it is worth!

The newsletter ends with some (I think!) exciting news about a new opportunity in professional development, available from DAIS -- the DAIS RECORD OF PROFESSIONAL EDUCATION. Here is a chance to get formal recognition for you individual efforts to be up-to-date and informed about the job you've been hired to do. There is also a listing of classes from DAIS for the Fall, 2001 term. Some of these classes are due to begin within the next few weeks. I hope you will look over the list, seek out more information on the DAIS Academy website, and choose to take advantage of some quality professional development activities created to stretch your mind without unduly stretching your pocketbook or your time commitments!

As in the past, this extra long newsletter is broken down and will be sent as THREE pieces, to avoid transmission problems.

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<< BARTLETT V. NYS BOARD OF LAW EXAMINERS --

Chalk One Up for Our Side >>

On August 16, the District Court of New York released its findings in the remand trial of Bartlett V. NYS Board of Law Examiners. While there have been several notable cases to come through the courts in the last several months (including Garrett and Casey Martin), THIS one may have the potential to be the most influential in our DSS/higher education circles because it deals most directly with issues near and dear to our hearts -- documentation of disability, learning disabilities, and testing situations.

Quick Review:

• Marilyn Bartlett is a very bright, very capable, very dyslexic individual (a little editorializing there! GRIN) who has attained a Ph.D. and a law degree despite her significant problems with reading.
• Bartlett requested accommodations for the New York State Bar Exam and was refused, because the powers-that-be said she didn't match their "profile" of a person with a learning disability, entitled to extra time and other considerations (they were using specific cut-off scores on several formal measures to determine who got accommodations and who did not); the Bar Examiners also questioned the legitimacy of her claim to protection under the law, considering her obvious achievements (the "she CAN'T be disabled -- look at what she has done!" phenomenon).
• Bartlett successfully sued in federal District court and won the right to receive accommodations. The decision was appealed to the 2nd Circuit court who upheld the decision. THAT decision was appealed to the Supreme Court.
• The Supreme Court held the petition until it made its decision in the Sutton case(s) and then sent the case BACK to the 2nd Circuit, to be reviewed in light of their findings in Sutton. The Circuit Court reviewed their decision and decided that the issue of whether or not Bartlett was "substantially limited" under the new guidelines established in Sutton was a finding of fact, not a finding of law, and sent the case BACK to the District Court (the "finding of fact, not finding of law" is legal jargon that indicates that the decision as to whether something fits the strictures of the law must be made by someone who is intimately familiar with the individual facts and circumstances of the case -- in this case, the original trial judge -- rather than being something that is open to legal interpretation, which is the purview of the Circuit Court).
• The information you are about to read refers to the decision by the District Court judge in the remand trial of the Bartlett case.
• THE GOOD GUYS WON!!!

At issue in THIS round of court proceedings was whether Marilyn Bartlett DOES have a reading disability (and, by extension, a disability in the major life activity of work), whether that reading disability is substantially limiting, and whether the NY Board of Law Examiners should have known that at the time she first applied for, and was refused, accommodations. The judge's answer to all three questions was "yes," but what is important for US is how she arrived at that answer.

When all is said and done, a large portion of this decision revolved around questions of tests/testing for reading disabilities and how to read and interpret documentation. Before I present my own conclusions, I thought it might be helpful to quote some actual passages from the Court's decision. It isn't easy reading -- but I think it is insructive!

" Thus, in this opinion and order, I will first address 'whether Bartlett is substantially limited in the major life activity of reading by her slow reading rate, or by any other 'conditions, manner, or duration' that limits her reading 'in comparison to most people.' "

(NOTE: The DRT is the Diagnostic Reading Test. Dr. Hagin is Rosa Hagin, Ph.D., of Fordham University. "Plaintiff" refers to Bartlett, "defendant" refers to the NY State Board of Law Examiners.)

" In the context of explaining why the DRT does not directly measure automaticity, Dr. Hagin described the difference between automaticity and reading rate as follows: There are two systems involved in reading: a decoding system and a comprehension system. An individual like plaintiff who has problems decoding uses the majority of his or her mental energy figuring out what the words say, and therefore has difficulty understanding the ideas. She explained that reading rate is merely a superficial observation of reading and that the rate tells an evaluator nothing about whether the person understood. Dr. Hagin distinguished plaintiff's reading problems from those of a "garden variety" poor reader, stating that a poor reader would not have the word attack problems that plaintiff consistently demonstrated. She stated that someone who is merely a poor reader -- who may be lacking in the intelligence, background, or education necessary for reading -- would be able to decode fairly well but would not understand the ideas. (Id.) She also testified that a "garden variety" poor reader would not have the significant intra-ability discrepancies that plaintiff exhibited."

(NOTE: Dr. Gregg is Noel Gregg, Ph.D., Director of the Center for Learning Disabilities at the University of Georgia.)

"Dr. Gregg discussed how to assess an individual's reading ability. Reading involves two elements -- a comprehension factor and a decoding factor; an accurate assessment requires measures aimed at both of these elements. Based on statistical research that Dr. Gregg has recently completed, adequate performance on one measure of reading comprehension on portions of the Woodcock or Nelson-Denny will not predict the same behavior on other measures of comprehension. For example, a fill-in-the-blank task is processed at the sentence level and uses different cognitive and linguistic abilities than tasks processed at the word level. The result of this research confirms Dr. Gregg's opinion that a single test cannot be used as the sole predictor of ability and that professionals should not generalize reading competence based on a single measure. Rather, patterns of scores are the most reliable means to identify performance levels. Dr. Gregg opined that average adults will not show the significant intra-ability discrepancies that plaintiff exhibits. Additionally, particularly when diagnosing adults, background information and clinical observations are very important to an assessment. For example, because the Woodcock is untimed, the scores do not reflect plaintiff's fluency and rate problems; rather the clinicians' observation of time is vital to diagnosing those problems.

(NOTE: Dr. Mather is Nancy Mather, Ph.D., of the University of Arizona and one of the co-authors of the Woodcock-Johnson III.)

" Dr. Mather opined that one cannot rely solely on Woodcock scores for diagnosing learning disabilities and stated that the conclusions that Dr. Vellutino draws from an individual's Woodcock scores are incorrect and "based on fundamental misperceptions of the purposes and properties of the tests." The manual Dr. Mather wrote for the Woodcock-Johnson III recommends that the evaluator look at four levels in interpreting the scores: (1) qualitative data, including behavioral observations and error analysis; (2) age and grade equivalent scores; (3) the tasks the individual mastered; and (4) standard score percentile rank. In order to perform an appropriate evaluation, a clinician must look at all four types of information. "

" Defendants and their experts argue that I should give little or no weight to clinical observations of plaintiff's reading problems because they are "subjective" and biased; they claim that clinicians are predisposed to seeing patterns in data that support a finding of disability and to minimizing data that are counter to those findings. Plaintiff's experts have convinced me, however, that learning disabilities cannot be captured by psychometric measures alone and that clinical observations are essential to a diagnosis of learning disabilities."

" Defendants and their experts argue that I should give little or no weight to clinical observations of plaintiff's reading problems because they are "subjective" and biased; they claim that clinicians are predisposed to seeing patterns in data that support a finding of disability and to minimizing data that are counter to those findings. Plaintiff's experts have convinced me, however, that learning disabilities cannot be captured by psychometric measures alone and that clinical observations are essential to a diagnosis of learning disabilities.

" While I discuss in more detail below the limitations of the specific psychometric measures administered to plaintiff, the following are observations about the limitations of using psychometric measures to diagnose learning disabilities generally, particularly with adults. First, all of the experts, including defendants' experts, agree that no psychometric test directly measures automaticity. For example, the Woodcock tests decoding accuracy, not decoding fluency or automaticity. Thus, no matter how low plaintiff scored on any psychometric measure, that score could not reflect what plaintiff's experts diagnose as a significant aspect of her disability-- lack of automaticity...Second, the psychometric measures are similarly limited with respect to diagnosing reading rate problems, another significant aspect of plaintiff's disability according to her experts. Reading rate tests like the DRT and Nelson-Denny merely give a snapshot of where in a paragraph of text an individual is after a short period of time (three minutes for the DRT and one minute for the Nelson-Denny). The reading rate score does not take into account, for example, whether the individual read each word or skipped words or whether he or she reread that text before later answering the comprehension questions. There is no direct correlation between reading rate and comprehension on these tests. While there was some testimony at trial regarding the new Woodcock-Johnson III Reading Fluency test, which plaintiff has never taken, the co-author of that test noted that it too has limitations -- it measures an individual's ability to read very easy sentences and does not measure how fast an individual can read material with heavy comprehension demands...Third, most psychometric measures are extremely limited in their application to adults..."

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" Finally, although these psychometric measures are relevant diagnostic tools, they cannot alone answer the question of whether an individual is substantially limited in the major life activity of reading as compared to "most people." Because the purpose of these measures is to diagnose learning disabilities, not to determine whether an individual is disabled under the ADA or Rehabilitation Act, these test are not normed to "most people." While psychometric measures available to diagnose adults have improved since this case was instituted almost a decade ago, no measure has yet been developed that can completely test the complexity of the reading process and whose scores alone can show the way that a flaw in one or more component of reading can affect an individual. As I discuss in more detail below, even if tests results appear average, those average scores tell nothing about the processes an individual uses and the difficulties that individual experiences in achieving those results. In sum, I cannot determine whether plaintiff is "substantially limited" in the "manner, condition or duration" in which she reads compared to "most people" solely based on her scores from the psychometric measures that have been administered to her. Rather, clinical judgment remains an important part of my determination of whether plaintiff is disabled.

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(EDITORIAL NOTE: Go back and read that one again... it is REALLY important! JEJ)

" In short, I do not accept [defendants' experts'] conclusions that reading disabled individuals are incapable of having the test scores reflected by plaintiff. Plaintiff's experts have convinced me that a reading disability is not quantifiable merely in test scores. A learning disability is not measurable in the same way a blood disease can be measured in a serum test. By its very nature, diagnosing a learning disability requires clinical judgment.... Moreover, I accept the opinion of plaintiff's experts ... that tests like the Woodcock are "poor discriminators" for adults. Thus, as much as the Board would like to find an easy test discriminator for a reading disability in its applicants, such a test does not exist."

" Whatever "most people" means in the context of the DRT, it cannot mean that a highly educated, intelligent adult who reads slower than 78 percent of fourteen year-olds on a reading test written at an upper elementary school level has no reading rate disability."

" A number of courts have considered this issue post-Sutton and have concluded that a court should only take into account mitigating measures or corrective devices that affect the individual's ability to perform the major life activity the plaintiff alleges is substantially limited by his or her impairment. I agree... Plaintiff's attempts to compensate for her learning difficulties do not correct her disability in the same way that glasses or the body's internal systems can correct or compensate for impaired vision. In this regard, Dr. Gregg has opined that while "[m]ost remedial efforts can produce some benefits, they do not eliminate a learning disability, nor can they 'correct it.'"

" A definition of disability based on outcomes alone, particularly in the context of learning disabilities, would prevent a court from finding a disability in the case of any individual like Dr. Bartlett who is extremely bright and hardworking, and who uses alternative routes to achieve academic success. ... [A] person's ability to get good grades is not the bottom line. If it were, then a student's ability to achieve reasonably high marks (by whatever means) without formal accommodations would, as a practical matter, foreclose a finding that he has a reading disability -- a conclusion that I believe is incorrect. No one, for example, would argue that a blind student who is able to get good grades in college with the help of friends and an appropriately configured personal computer -- but without any formal accommodation from the school -- would not be considered "disabled" for purposes of the ADA. Similarly, if a student with severe reading difficulties can get reasonably high marks in school even though it takes him three times as long as the average person to read the required course materials, it would make little sense to say that he does not have a disability in reading. One might say that he is overcoming his disability as far as getting good grades is concerned, but his method or manner of reading would still be substantially limited as compared to the average person."

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"This Court is not unsympathetic to the Board's desire to have a clear standard by which to determine whether an applicant claiming to be learning disabled is entitled to accommodations on the bar exam under the ADA and Section 504. It is clear to me, however, that such a standard must take into consideration an applicant's evaluation report in toto, rather than focusing exclusively on psychometric test scores. Reading is a complex process composed of numerous cognitive functions. A deficit in one or more of these underlying processes can seriously affect an individual's ability to read. The Board (like many others in the public) wants the comfort of a test score to measure this complex process. While research about learning disabilities continues to advance and diagnostic tools are being improved, no test exists today whose scores alone can diagnose learning disabilities. Today, reliance on clinical judgments is necessary to diagnose learning disabilities (as it is with other types of disabilities, such as mental illness)."

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(EDITOR'S NOTE: Read THAT one again, too!!! JEJ)

Alright... where does that get us? You'll have to switch to Part II to find out!!!

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(End of Part I)