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D A I S
A newsletter from Disability Access Information & Support
Providing information and technical assistance regarding
issues of disability in higher education
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December, 2002 Volume VI, No. 12
Jane E. Jarrow, Ph.D.
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<< TABLE OF CONTENTS >>
- A REMINDER TO SUBSCRIBERS
- SETTLEMENT REACHED IN BARTLETT DECISION
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<< A REMINDER TO SUBSCRIBERS >>
I chose to hold this twelfth issue of the newsletter until after the
winter holiday when I knew folks would be back at their desks refreshed and
renewed (you are, right?). As it happens, I am glad I did, since the newsletter
ended up being about something that hadn't happened at the point where everyone
turned off their computers and headed home for their break. The truth is,
however, that I had ulterior motives in waiting. It gives me a chance to give
you a not-so-subtle reminder about renewing your subscription to the DAIS
Newsletter for 2003 (if you haven't already done so!).
This is the last issue being sent out on the 2002 subscriber list. The
January edition (Volume VII, No. 1) is already completed and will be sent out
on Thursday. Please make a note to yourself to look for it then. If you
receive the January edition on Thursday, the paperwork on your subscription has
been received here in my office -- you need do nothing more. If you DON'T find
Volume VII, No. 1 waiting for you when you open your email on Thursday
morning, it means I DON'T have your renewal paperwork in hand. Feel free to use the
renewal form sent out on December 6 to correct that little oversight! GRIN (If
you can't find your copy of the renewal form, just drop me a note and I'll
send another.)
OH! BEFORE I LET YOU GET AWAY... please take a moment to check out the
upcoming courses from the DAIS Academy for Spring semester, 2003. There are some
repeat offerings ("Confidentiality, Disability, and Higher Education,"
"Understanding the Legal Mandates Without Becoming a Lawyer," "Use and Abuse of
Guidelines in DSS," "The Final Frontier? Study Abroad Programs and Students with
Disabilities") and one new class that I am very excited about -- "Residence
Life Issues for/with Students with Disabilities." You can check out all the
details at the DAIS Academy website, http://www.daisacademy.com
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<< SETTLEMENT REACHED IN BARTLETT DECISION >>
Once again, this is NOT the newsletter I thought to be sending you. I
had planned something very different, but current events intervened.
Ironically, last Friday night I watched the Fiesta Bowl and watched Ohio State beat
Miami. Although I am not a huge Ohio State fan, you cannot live in the city of
Columbus, Ohio, without having SOME allegiance in these circumstances -- local
ordinances require it! Ohio State beat the odds, presented a tenacious
defense, and hung on to the bitter end in a win that is being touted as the greatest
college football championship game ever played. Today I am sending you a
newsletter that includes a play-by-play description, a run-down on some of the key
players, and a thrilling review of the FINALLY resolved Bartlett case
(Bartlett v NYS Board of Bar Examiners). I attest to being an AVID fan of Marilyn
Bartlett and her most able (noble? ;-)) attorney Jo Anne Simon, who beat the
odds, presented a tenacious offense, and hung on to the bitter end in a win that
WILL be touted in higher education circles as THE MOST IMPORTANT high-profile
case to be played out in a long, LONG time!
Many of you may have missed the notice, during Christmas week, of the
settlement. The actual (District Court) decision was released more than a year
ago, but there was an appeal made on that decision (which has now been
withdrawn) and there was a question of settlement costs and fees to be assessed. It
is now a "done deal."
In Fall of 2001, I did a detailed rundown and summary of the decision
(DAIS Newsletter, Volume V, No. 7-8). If you want to go back and take a look at
the full text of what I wrote then, you can reach it from the "Hot Button"
link on my website (http://www.janejarrow.com). It also remains available
through the Locked Files, in the Newsletter's Volume V archive. For THIS go round,
I have pulled out some critical background information and "revamped" my
conclusions from that time, added a little perspective from the intervening year,
and here are the results!
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 recently settled decision was the one made by the District Court judge
(Judge Sotomayor) in the remand trial of the case.
- THE GOOD GUYS WON!!! (a little MORE editorializing!)
At issue in this round of court proceedings was whether Marilyn Bartlett
really did have a reading disability (and, by extension, a disability in the
major life activity of work), whether that reading disability was
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. Perhaps the most important thing that comes
through in reading the decision is that this is a judge who gets it. She REALLY
gets it. She immersed herself in understanding the complex issues of LD/reading
diagnosis so that she could come to logical and appropriate conclusions of fact
and of law in the case before her. The best part is that she is an articulate
spokesperson for these issues, and one who (literally) speaks with the force
of law behind her.
After reading the press release about the settlement, a colleague wrote
and asked how binding this decision would be. What would be the impact on the
legal landscape as a result? "Binding" is hard to say. To a large extent,
it will likely be considered binding in THAT circuit (2nd circuit) because
while the final decision came from the District Court level, it had been through
the circuit court twice, both times agreeing with the judge. It isn't legally
binding on anyone else. More importantly, though, the decision and ALL the
testimony that led up to it was SO extensive, and the decision is so expertly
written that I think it will certainly serve as a precedent for pretty much
everyone from here on out. In legal parlance, this well-written decision will be
"persuasive" for any judge asked to rule on these same issues in the future,
because few judges will have the opportunity or the inclination to delve into
these issues as thoroughly as did Judge Sotomayor. The decision says, in no
uncertain terms, that it is possible to be very smart and still be substantially
limited by a learning disability. It blows the heck out of the current
thinking that suggests that unless the student is getting bad grades, he/she should
not be entitled to accommodations because he/she is not substantially
limited. More importantly, it says, in no uncertain terms, that you CANNOT judge a
learning disability solely on the basis of test scores. Since that is the way
the VAST MAJORITY of DSS providers are currently making decisions (not to
mention the testing agencies), it should make for some interesting re-assessments.
SHOULD... no saying that it will. But the precedent is there.
In no particular order, then, here are MY thoughts as to how the
Bartlett decision can, and should, be considered by the DSS community, and presented
throughout the higher education community (not to mention the legal types out
there, who should find it instructive!!!)"
(1) TEST SCORES DON'T TELL IT ALL
When looking at documentation re: learning disabilities, you MUST look
beyond the scores alone, because the scores alone do not necessarily give you
the full picture. The Supreme Court has not tampered with the EEOC guidance
that suggests that in determining whether a disability is substantially limiting,
one must consider the "condition, manner, and duration" of the individuals
performance of the major life activity under consideration. You cannot get a
feel for that by looking ONLY at test scores.
How often do we see posts come across on the listserv that say (in
effect), "The diagnostician says the student has a learning disability, but the
test scores don't support that. What do I do?" Of course (?), someone is certain
to come back and ask, "what about the clinical observations? Has the
clinician given you any information about 'condition, manner, or duration' that would
suggest a learning disability, regardless of the scores?" NOT! Instead, the
knee-jerk reaction MANY of us have in response to seeing a diagnosis of LD
without the typical test profile is to suspect that the diagnostician was (1) not
very competent or (2) being paid to find that there WAS a problem.
In many cases, that MAY be the answer. I am not suggesting that we throw
caution to the wind and start accepting mediocre documentation at face value,
or that we abdicate the right/obligation to look carefully at the information
presented. I am not suggesting that the diagnostician always HAS. or is wise
enough to provide, the kind of anecdotal observations and detail regarding HOW
the student responded to testing that may give the kind of picture presented
in Bartlett. I am simply wondering about how often we look beyond the test
scores to that observational data, and how quick we are sometimes to dismiss the
observations of someone who was there and watched it happen by substituting
our own interpretations of the information presented.
Longtime readers know that I am NOT a big fan of the AHEAD guidelines
for diagnosis of LD. Even those guidelines, however, acknowledge that
evaluation is a PROCESS and suggest that professional judgment be utilized in
development of the clinical summary. My concern is that there is not nearly as obvious
a call for others to RESPECT that professional judgement. The judge in
Bartlett reminds us that we should, perhaps, do so more often!
(2) YOU CAN BE *REALLY* SMART AND STILL BE DISABLED
Needless to say, the Court said that in a much more dignified manner
than I just did. But the effect is the same. This gets back to the very meaning
of the term "substantially limits" in our 504/ADA definition of who is
disabled, and it speaks to a critical issue for those of us working in higher
education. One cannot/should not assume that because a student is academically
successful, he she is NOT substantially limited in the "condition, manner, or
duration" in which he/she performs -- and thus entitled to protection under the law.
Not everyone is in the position that Bartlett is in, and I am NOT suggesting
that a label of LD should automatically qualify one for a host of
accommodations. If the problem is not directly reflected in test scores, then there must be
evidence that the "condition, manner, and duration" of performance IS
significantly impacted before we begin to consider accommodations to provide equal
access. But it is NOT appropriate to rule out that possibility based upon the
fact that the student is successful. The question that must be asked in viewing
that success in the context of the disability is, "at what cost?"
(3) THERE MAY BE NO TESTS TO FIT THE SITUATION
This is a point primarily for diagnosticians and the LD-types out there
reading this newsletter. I learned a great deal about testing adults with
learning disabilities from reading this discussion. What I learned, more than
anything else, is that despite the strides we have made in diagnosis in the last
two decades, the diagnostic instruments commonly used (and included as
preferred in most diagnostic guidelines I have seen) are not particularly sensitive to
(and in some cases, not appropriate to) diagnosing a learning disability in
older adults. For this population, the reliance on clinical judgment
appropriately may have to be significantly increased. If you are a diagnostician, you
would do well to get a copy of the text of the decision and read it for
yourself. There are some quotes that I considered to be significant included in the
earlier write-up (the Volume V Newsletter), but I would imagine MOST readers,
regardless of their background, would learn something from reading the whole
thing!
(4) MITIGATING MEASURES ARE THOSE THINGS THAT EFFECT THE DISABILITY, NOT WAYS
*AROUND* THE DISABILITY
If Point #3 (above) was primarily for diagnosticians, then this one is
primarily for the legal thinkers in the audience. In the Sutton decision, the
Supreme Court ordered that when determining if someone was "substantially
limited" by his/her impairment, one must take into account the effect of mitigating
measures in use. In the specific instances involved, the court was talking
about the use of eyeglasses, blood pressure medication, and the body's innate
ability to have a working part take over some or all of the function of a
non-working part (monocular v. binocular vision). In all these cases, the Supreme
Court found that given these "mitigating measures," the individuals were NOT
substantially limited in their performance of major life activities and thus not
eligible for protection under the law. In EACH of these instances, the
mitigating measure employed significantly impacted on the disability itself (that
is, the glasses meant vision was "corrected to normal," the blood pressure
medication maintained the blood pressure within normal limits, and the effective
use of one eye largely replaced the typical binocular functioning). But...
In Bartlett, the judge reiterated a distinction drawn by several other
courts that suggests that there is a difference between mitigating measures
that impact on the disability and measures that allow the individual to somehow
alleviate/avoid the functional limitations imposed by the disability. Simply
put, ACCOMMODATIONS WE PROVIDE ARE NOT MITIGATING MEASURES. Eyeglasses are a
mitigating measure; screen readers are not. Corrective surgery may be a
mitigating measure; use of a wheelchair is not. A hearing aid is a mitigating measure;
an assistive listening device is not.
(Just so that you don't get TOO complacent, this seemingly clear distinction
isn't always so clear. Ritalin is a mitigating measure; extended time for the
ADHD student is not. HOWEVER, if the Ritalin is having the desired impact, is
the individual still substantially limited enough to be eligible for the
extended time? Does the student have to go OFF the medication in order to get the
accommodation? That would be silly, foolish, and illogical -- but you KNOW the
question is going to get asked! Just remember, you are to consider WHETHER OR
NOT the individual is disabled in light of mitigating measures, not assuming
that if mitigating measures are in effect there will be no limitation.)
On the other hand, the Court said that both the positive AND negative
effects of mitigating measures should be considered. The Court determined that
Bartlett's "self-accommodations" (things she did that helped her in her
attempts to read such as using her finger to point to the words as she read or
skimming text and inferring answers from context) WERE mitigating measures in that
they directly impacted on her performance in the major life activity of
reading. However, in HER case, these mitigating measures increased her decoding
accuracy at the cost of her speed, cognitive energy, fatigue and efficiency, and
sometimes even her comprehension. Condition, manner, duration... keep saying
that to yourself!
(5) REAL LIFE EXAMPLES CAN BE COMPELLING
As you read the Bartlett decision, it becomes clear that the judge
believed what Bartlett had to say because she listened to Bartlett's testimony and
WATCHED her try to read. For years, my mother had a favorite poem that she kept
prominently displayed at our house:
The wise old owl sat in the oak.
The more he heard, the less he spoke.
The less he spoke, the more he heard.
Why can't WE be like that bird?
A point well taken? Meanwhile, those same real life examples are at the very
heart of case-by-case consideration that is required by the law -- and is too
often overlooked for reasons of expedience in our daily practice. Recently,
I got a request for advice from someone who said, "I am holding a request for
triple time in testing from a student with an unusual combination of
disabilities. She has presented ample documentation of the legitimacy of her request,
but our standard policy is that students are provided with time-and-a-half or
(with significant documentation) double time. What should I do? My response?
"Real life examples can be compelling. If she has shown you why she
legitimately needs the extra time, I can't think of any reason in the world for it
not to be provided."
(6) SOME OBJECTIIONS TO ACCOMMODATIONS ARE DRIVEN BY MISPERCEPTIONS AND
STEREOTYPES ABOUT LEARNING DISABILITIES.
The decision discusses, at some length, many of the same problems on the
part of the Board of Law Examiners conveyed by Jon Westling and his crowd in
the Boston University law suit. Having a bad attitude is not against the law,
but translating that bias into actions that limit the options and
opportunities of people with disabilities will not be tolerated. You might want to pass
THAT point along to others at your institution! GRIN
(7) GET A GOOD LAWYER!!!
Marilyn Bartlett got lucky when Judge Sotomayor was assigned to her
case. There is nothing to suggest that the judge was predisposed in her favor or
that she made her ruling in anything but an impartial manner. But she was
smart enough, patient enough, and interested enough to listen, to learn, and to
understand the implications of the issues she was asked to rule upon. All that
would have gone to naught, however, if Bartlett didn't have a good attorney.
Fortunately, she didn't have a "good" attorney -- she had the BEST! I
mean that sincerely. I do not believe there are more than a handful of
attorney's out there who could even come close to presenting this case as effectively
as did Jo Anne Simon. I admit to some bias, as Jo Anne is a long-standing
friend and colleague. Besides, she was a DSS provider *first* (before she
became an attorney), so she can't be all bad! ;-) But when you look at the raft of
similar cases (i.e., persons with disabilities requesting accommodations in
testing at the highest levels of their profession) that have received attention
in the past several years without the same outcome, you have to wonder what
the difference was. I think the difference was Jo Anne.
I recently heard a noted attorney in the field state that he believed
there are very few attorneys who could have won this case. Jo Anne did. That
achievement represents not only a vindication for Marilyn Bartlett, but a
victory for a whole lot of qualified, capable, disabled students who will benefit
from the convictions of the plaintiff and the skills of her attorney. My
sincere congratulations -- and thanks -- to them both!
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(End of newsletter)
