IN THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

No. 97-9162

MARILYN BARTLETT, Plaintiff-Appellee

v.

NEW YORK STATE BOARD OF LAW EXAMINERS, et al., Defendants-Appellants

ON APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE

INTEREST OF THE UNITED STATES

This case involves the construction of the term "disability" in the Americans With Disabilities Act of 1990 (ADA), Pub. L. No. 101-336, 104 Stat. 327 (1990), codified at 42 U.S.C. 12101 et seq. It arises in the context of a request for reasonable accommodations against a public entity under Title II of the Act, 42 U.S.C. 12131 et seq. The Attorney General has primary responsibility for enforcing Title II of the ADA, which prohibits public entities from discriminating against qualified individuals by reason of disability. 42 U.S.C. 12132; see 28 C.F.R. 35.170-35.178. The Department of Justice has received, and continues to receive, numerous complaints from persons of college age or older who have been diagnosed with learning disabilities, and who allege that they have been denied reasonable testing or other accommodations by public and private testing entities. The decision of this Court in this appeal could have a significant impact upon the Department's ability to enforce Title II in these contexts.

QUESTION PRESENTED

Whether a law school graduate diagnosed with a learning disability is substantially limited in the major life activities of reading and learning, as well as working, within the meaning of the Americans With Disabilities Act (ADA), 42 U.S.C. 12102.

STATEMENT

A. Statutory Background

Title II of the ADA protects a "qualified individual with a disability" from discrimination by a public entity. 42 U.S.C. 12132. In relevant part, the statute defines a "disability" as "a physical or mental impairment that substantially limits one or more of the major life activities of such individual." 42 U.S.C. 12102(2)(A). "[S]pecific learning disabilities" are included within the definition of the phrase "physical or mental impairment." 28 C.F.R. 35.104. The definitions section of the regulation lists illustrative examples of "major life activities," including learning and working. Ibid.

The ADA does not define the concept "substantially limits," nor was that term defined in the Rehabilitation Act of 1973, from which it was derived. See 29 U.S.C.A. 706(8)(B) (West Supp. 1997). In the authoritative House report concerning the ADA, however, Congress included the following explanation:

A person is considered an individual with a
disability for purposes of the first prong of the
definition when the individual's important life
activities are restricted as to the conditions,
manner, or duration under which they can be
performed in comparison to most people.

H.R. Rep. No. 101-485 (II) at 52 (1990).(1) The Report also included a couple of illustrative examples indicating that neither the person with an infected finger nor the person who begins to experience pain after walking ten miles continuously is substantially limited in a major life activity. Ibid.

The preamble to the ADA Title II and Title III regulations promulgated by the Attorney General repeats the above language from the legislative history verbatim. See 28 C.F.R. Pt. 35, App. A § 35.104; 28 C.F.R. Pt. 36, App. B § 36.104.

The EEOC, which has the authority to promulgate regulations under Title I of the ADA, 42 U.S.C. 12116, treats the "substantially limits" standard somewhat differently. With regard to all major life activities other than working, the EEOC regulation defines the term "substantially limits" as follows:

The term substantially limits means:

(i) Unable to perform a major life activity that the
average person in the general population can perform;
or

(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.

29 C.F.R. 1630.2(j)(1)(i) & (ii) (emphasis added).

With respect to the major life activity of working, however, the EEOC regulation defines the term "substantially limits" by narrowing the pool of persons to whom the comparison should be made:

With respect to the major life activity of working --

(i)The term substantially limits means 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

.

29 C.F.R. 1630.2(j)(3)(i) (emphasis added).

The major life activity of working is treated with greater specificity because what is meant by "working" has been the subject of greater dispute than what is meant by the other major life activities such as hearing or seeing. See EEOC Compliance Manual, EEOC Order 915.002, Section 902 at 902-18. EEOC's interpretative guidelines state that courts should first assess whether a person qualifies as "substantially limited" under the more general standard, and only if the individual does not should the court assess whether that person is substantially limited in working. 29 C.F.R. Pt. 1630, App. A § 1630.2(j).

B. Statement of the Case

1. The New York State Bar Examination is administered twice each year, in February and July. The examination is intended to measure legal knowledge and legal reasoning ability. It is given in two parts over two days. The first day is devoted to the New York portion of the examination, which consists of six essay questions and 50 multiple-choice questions. The second day is the Multistate Bar Examination, consisting of 200 multiple choice questions provided by the National Conference of Bar Examiners. Bartlett v. New York State Bd. of Law Exam'rs, 970 F. Supp. 1094, 1099-1100 (S.D.N.Y. 1997); 13 Tr. 1659-1660 (Testimony of Laura Swain).(2)

Under the standard procedures, the New York portion of the exam is given over a period of six and a half hours on the first day, and the multistate is given over a period of six hours on the second day. 13 Tr. 1659-1662 (Laura Swain). The Rules of the Board state that it will "provide accommodations in testing conditions to candidates with disabilities during the administration of the examination, to the extent such accommodations are reasonable, consistent with the nature and purpose of the examination, and necessitated by the candidate's disability." 22 NYCRR § 6000.4. The hours of testing have been extended by the Board for individuals with disabilities, but the Board generally does not extend the additional hours over additional days. See 13 Tr. 1668-1670 (Swain); 7 Tr. 886 (James Fuller).

2. Marilyn Bartlett, a 1991 law school graduate, first sought to take the New York Bar Examination administered by the Board in July 1991.(3) Her request for test accommodations was denied, and she failed to pass the bar exam. She subsequently took the February 1992, July 1992, and February 1993 administrations of the bar exam, without accommodations, and failed each time. On July 20, 1993, after Bartlett's request to take the July 1993 examination with accommodations was rejected by the Board, she filed suit alleging that, by denying her reasonable accommodations, the Board had violated Titles II and III of the ADA; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794a; the Due Process and Equal Protection Clauses of the Fourteenth Amendment; and 42 U.S.C. 1983. 970 F. Supp. at 1098-1103.

Bartlett requested accommodations on the grounds that she has a learning disability. 970 F. Supp. at 1103. In May 1993, she requested extra time, the use of a word processor or permission to dictate essay responses, and permission to circle answers on the multiple choice exam sheet.(4) Ibid. In accordance with a stipulation between the parties, Bartlett was permitted to take the July 1993 examination with accommodations, pending the outcome of the litigation. She was given the following accommodations: time-and-a-half (nine hours) for the New York portion of the exam; the use of an amanuensis to read test questions to her and to record her responses; and permission to circle her answers on the multiple choice exam sheet. Id. at 1103-1104. Bartlett did not pass the July 1993 exam. Id. at 1104.(5)

The Board rejected Bartlett's request for test accommodations for the July 1993 bar examination because it did not believe that she was a person with a reading disability. In a letter dated June 29, 1993, the Board advised Bartlett that the documentation she had submitted in support of her request to take the July 1993 bar exam did not support a diagnosis of dyslexia.(6) 970 F. Supp. at 1103. The Board reaffirmed its decision in a letter to Bartlett dated July 19, 1993. Ibid.

The Board's rejection of Bartlett's request for accommodations on the July 1993 examination was based on the assessment of Dr. Frank R. Vellutino, who reviews requests to the Board for accommodations from persons claiming to have learning disabilities. Although the Board has not expressly required that applicants seeking accommodations provide any particular set of psychoeducational tests, Vellutino prefers to assess scores from two subtests of the Woodcock Reading Mastery Test (WRMT), namely the Word Attack and Word Identification subtests, and he has generally relied primarily on the results of those tests as the basis for his recommendation to the Board. 970 F. Supp. at 1111; 14 Tr. 1807-1810 (Dr. Frank R. Vellutino).(7)

At trial, plaintiff's experts challenged the Board's exclusive reliance on such test scores. They testified that the inquiry should include clinical observations and history of reading difficulties, in addition to standardized test scores. 2 Tr. 200 (Dr. Phillip M. Massad); 4 Tr. 489-491, 495-496 (Dr. Richard F. Heath); 5 Tr. 559-561 (Dr. Rosa Hagin). Specifically, it should address four areas of inquiry: personal and educational history, intelligence testing and cognitive functioning, achievement testing, and neuropsychological testing. 4 Tr. 440, 495-496 (Heath); 5 Tr. 559-560, 567-569 (Hagin). Among other things, plaintiff's experts stressed the evidence of Bartlett's "stark lack of automaticity," defined as "the phenomenon by which a person recognizes a printed word and is able to read it accurately, and immediately; in other words, automatically and without thinking." 970 F. Supp. at 1107, 1113. Automaticity is not directly measured by any standardized test. Id. at 1113.(8)

C. The Decision of the District Court

1. Initial Decision

The district court agreed with plaintiff's experts that plaintiff's reading disability cannot be measured solely by psychometric testing. 970 F. Supp. at 1113. Rather, the court found that "diagnosing a learning disability requires clinical judgment." Id. at 1114. This is especially true because no test measures automaticity directly. Id. at 1113. Moreover, "a learning disability in reading has to be identified in the context of an individual's total processing difficulties." Id. at 1099.

The court also relied upon test data showing that Bartlett's slow reading rate is comparable to the 4th percentile of college freshmen when timed. Id. at 1113. The court rejected Vellutino's methodology, particularly his opinion that a score above the 30th percentile on the Word Attack and Word Identification subtests of the Woodcock Reading Mastery Test automatically shows the absence of a reading disability, because one-third of adults with dyslexia scored above that percentile on a similar test. Id. at 1114.(9)

The court began its legal analysis by noting that under both Section 504 and the ADA, plaintiff must demonstrate that she has a disability, a term that is defined in nearly identical terms under both statutes. 970 F. Supp. at 1116. Bartlett claimed that she is substantially limited in the major life activities of learning, reading, writing, studying, test-taking, and alternatively, working. Id. at 1117. The court concluded that all of those areas come within the definition of "major life activities" as defined by the ADA regulations, but that they can be "collapse[d] into an inability to read like the average person on tests like the bar examination, for that is the skill that plaintiff claims constricts her ability to engage in all the other relevant major life activities." Ibid.

The court noted that for all of the relevant major life activities other than working, the ADA regulations require it to decide whether an individual is substantially limited when compared to the average person in the general population or "most" people. 970 F. Supp. at 1120; see 29 C.F.R. 1630.2(j)(1) (the EEOC Title I regulation); 28 C.F.R. Pt. 35, App. A § 35.104 (the Department of Justice Title II regulation). For the major life activity of working, however, the court noted that, in the EEOC Title I regulation, the relevant comparison group is the "average person having comparable training, skills and abilities." 970 F. Supp. at 1120; 29 C.F.R. 1630.2(j)(3)(i).

The court concluded that Bartlett is not substantially limited in the major life activity of reading when compared to the "average person in the general population," Bartlett v. New York State Bd. of Law Exam'rs, No. 93 Civ. 4986, 1997 WL 471032, at *4 (S.D.N.Y. Aug. 18, 1997) (opinion on post-judgment motion). It found that Bartlett's reading skills, when compared to the general population, were "barely average" or "roughly average reading skills (on some measures) when compared to the general population" and concluded that Bartlett is not substantially limited in reading within the meaning of 29 C.F.R. 1630.2(j)(1)(ii). 970 F. Supp. at 1120-1121; Bartlett, 1997 WL 471032, at *4.

The court concluded, however, that Bartlett is substantially limited in the major life activity of working when compared to the "average person having comparable training, skills and abilities," citing 29 C.F.R. 1630.2(j)(3)(i). Bartlett, 1997 WL 471032, at *4; 970 F. Supp. at 1126. The court found that the proper measure for determining whether a person taking the bar exam is substantially limited in a major life activity is to compare her to people with educational achievement comparable to her own, i.e., using the average scores of college graduates as the appropriate proxy because that is the highest educational level against which certain standardized tests are normed. 970 F. Supp. at 1126. Using that measure, the court concluded that Bartlett

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).

Id. at 1099. When compared to that population group, the court found that Bartlett's reading skills were well below "normal." Id. at 1121. Therefore, the court concluded as a matter of law that Bartlett is "substantially impaired in the major life activity of working" and is a disabled individual under the ADA and Section 504. Id. at 1126.

2. Ruling on Post-judgment Motion

In its post-judgment motion, the Board argued that the district court erred in reaching the question whether Bartlett is substantially limited in the major life activity of working, when it failed to find that Bartlett was substantially limited in the major life activity of learning. Accordingly, it argued that the court erred as a matter of law by applying the more narrow standard applicable to the major life activity of working (29 C.F.R. 1630.2(j)(3)(i)), rather than the more general standard applicable to other major life activities in the EEOC Title I regulation (see 29 C.F.R. 1630.2(g)(1); 29 C.F.R. 1630.2(h)(2); 29 C.F.R. 1630.2(i); and 29 C.F.R. 1630.2(j)(1)).

In fact, however, the EEOC regulation cautions against determining whether someone is substantially limited in the major life activity of working, unless it has been determined that the person is not substantially limited in any other of the major life activities. See 29 C.F.R. Pt. 1630, App. § 1630.2(j). Therefore, in denying the Board's motion to amend the judgment, the court stated that because it had found that plaintiff was not substantially limited in the major life activities other than working that plaintiff raised, it was appropriate to consider whether she was substantially limited in the major life activity of working. Bartlett, 1997 WL 471032, at *3.

Further, in explaining why it was appropriate to invoke the major life activity of working in this case, the court distinguished the decision of the district court in Price v. National Board of Medical Examiners, 966 F. Supp. 419 (S.D. W. Va. 1997). The court in Price analyzed the claims of medical students seeking additional time and other accommodations on a medical licensing examination solely on the basis of whether they were substantially limited in the major life activity of learning, i.e., comparing them to the average person in the general population. Initially, the court in Bartlett noted that the exam at issue in Price was a step in the educational process of medical students rather than an examination given after a law student has completed all of her schooling and presenting the "only obstacle remaining between her and the practice [of law]." 1997 WL 471032, at *4.

The court also found that Price involved claims that one of the disabilities involved there, Attention Deficit Hyperactivity Disorder (ADHD), impaired the medical students' ability to learn, whereas Bartlett's disability, a difficulty in reading words, did not affect her learning, per se, but rather her ability to "read with the automaticity and speed of the average person with comparable training, skills and abilities," 1997 WL 471032, at *5 & n.4. The court stated that measuring Bartlett's disability against a reference population, the average person in the general population, "that would otherwise be totally unprepared and unqualified to take [the bar] examination," would be contrary to the ADA's "highly context-specific" scheme. Id. at *6. Moreover, the result would be contrary to "Congress' unequivocal desire to employ disabled individuals up to their full potential." Id. at *7.INTRODUCTION AND SUMMARY OF ARGUMENT

Congress intended individuals with learning disabilities to be protected by the ADA. H.R. Rep. No. 101-485 (II) at 51 (1990). "[S]pecific learning disabilities" are included within the list of "mental impairment[s]" that qualify as disabilities under Section 3(2) of the Act, 42 U.S.C. 12102(2). 28 C.F.R. 35.104. To decide whether an individual has a disability within the meaning of the ADA, it is necessary to determine whether the impairment "substantially limits one or more of the [individual's] major life activities." 42 U.S.C. 12102(2)(A). An individual is substantially limited if the relevant major life activities are "restricted as to the conditions, manner, or duration under which they can be performed in comparison to most people." 28 C.F.R. Pt. 35, App. A § 35.104.

In part A of this brief, we argue that the district court properly recognized that the determination whether Bartlett's major life activities are substantially limited by her learning disability depends upon a review of the process by which she reads and learns. Thus, the district court correctly held that it was not enough for the Board to determine that she was able to read, but that the Board should have considered clinical observations of the condition, manner and duration of Bartlett's reading, as reported by the qualified experts who examined her. The Board erred in relying on tests that do not properly measure important elements of Bartlett's learning disability, such as the lack of automaticity of her responses and the length of time it took her to formulate those responses.

In Part B, we argue that the record demonstrates that Bartlett is substantially limited in learning and reading, as well as in working. The district court correctly found that Bartlett is substantially limited in the major life activity of working because her learning disability substantially limited her performance on the bar exam. In other words, while she could read and process the information on the bar examination, she was significantly limited as to the conditions, manner and duration of her reading and processing compared with most people of her age, aptitude and educational background. The same reasoning should have led the district court to conclude that Bartlett was substantially limited in the major life activities of reading and learning.

The concept of disability should have a uniform meaning under the ADA regardless of which title is at issue in a given case. Thus, the Title I and Title II regulations are consistent with each other. While the Title I regulation regarding the major life activity of working explicitly recognizes the need for comparison to those of similar training, skills, and abilities, such a comparison is equally appropriate in evaluating reading and learning. Learning disabilities, by their very nature, are diagnosed by comparing individuals to a relevant subgroup of the population. The diagnosis of learning disabilities involves an assessment that by necessity compares an individual's performance to a norm based on age, aptitude, and educational background. The major life activities of reading and learning are similarly measured by reference to the norms of relevant subgroups rather than in comparison to the general population.

Since the exam in this case was a prerequisite for the practice of law in the State of New York, the district court was correct in finding a substantial limitation on working. However, because many examinations for which adults with learning disabilities request accommodations are not as directly linked to working as the bar examination at issue here, this Court should make clear that an adult with a learning disability such as Bartlett is substantially limited in reading and learning as well. Accordingly, this Court should affirm the district court's decision on the basis that Bartlett is substantially limited in the major life activity of working, as well as the activities of reading and learning, and is thus entitled under Title II of the ADA to a reasonable accommodation for taking the New York bar examination.

ARGUMENT

THE DISTRICT COURT CORRECTLY FOUND THAT BARTLETT IS
A QUALIFIED INDIVIDUAL WITH A DISABILITY WITHIN THE MEANING
OF THE ADA

The Record Demonstrates That Bartlett Has A Disability
That Substantially Limits The Major Life Activities Of
Reading And Learning

A. Whether an individual has a disability within the
meaning of the ADA should be determined by examining
the conditions, manner, or duration under which she
can perform the relevant major life activities

The ADA contemplates that a determination whether someone is an individual with a disability should be made by examining whether his or her "important life activities are restricted as to the conditions, manner, or duration under which they can be performed in comparison to most people." H.R. Rep. No. 101-485 (II) at 52 (1990). The district court correctly rejected the defendants' contention that Bartlett did not have a learning disability because her scores on particular standardized tests were above an arbitrary cutoff score chosen by defendants' expert.(10) Because the ADA definition of disability is concerned with the process by which an individual performs important life activities, the court correctly accepted "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." Bartlett v. New York State Bd. of Law Exam'rs, 970 F. Supp. 1094, 1099 (S.D.N.Y. 1997). The record amply demonstrates that Bartlett "is not able to read in the same condition, manner or duration as an average reader * * * having comparable training, skills and abilities." Ibid., internal quotation marks omitted.(11)

As the district court noted, all three of the expert witnesses who examined Bartlett identified ways in which the process by which she read and comprehended language was significantly different from that of most readers. Dr. Massad, who diagnosed her dyslexia in 1989, stated that, in his professional opinion, Bartlett "has learning disabilities characterized by difficulties with automaticity, phonological processing, organizing and processing visual-spacial information, short term memory and sequential processing." Massad Aff. ¶ 79, quoted at 970 F. Supp. at 1106. Dr. Heath, who confirmed Massad's diagnosis after administering the test requested by the Board, i.e., the Woodcock Reading Mastery Test - Revised, stated in the evaluation he submitted to the Board that Bartlett "decoded words slowly and without automaticity," made frequent "self-corrections," read slowly, and "typically read the more complex passages two or three times in order to ascertain their meaning." 970 F. Supp. at 1107. In addition, Heath's clinical observations of Bartlett's manner of reading, described in his trial affidavit (quoted at 970 F. Supp. at 1107-1108), provide powerful evidence of why she would need accommodations in order to take the bar examination. Finally, Dr. Hagin, who examined Bartlett for purposes of providing expert testimony, noted that, although Bartlett's scores on the Woodcock subtests and other tests "fall roughly within the average range," her reading skills are not automatic. 18 Tr. 2494-2495 (Dr. Rosa Hagin). She reads and writes slowly and "worries about her spelling as she writes so that she is constantly working at the two levels of decoding and understanding." 18 Tr. 2494. Hagin stated that, in her professional opinion, Bartlett neither decoded, read, wrote, spelled or learned in the same condition, manner or duration as the average adult reader. 18 Tr. 2545-2546.(12)

In contrast, the criteria used by the Board's expert, Dr. Vellutino, were inappropriate for determining whether Bartlett had a disability for purposes of taking the bar examination. The subtests relied upon by Vellutino were untimed,(13) and they provided no information on the manner in which she read. They measured what she was able to read, but not the length of time it took Bartlett to get the correct answer or the number of incorrect responses she gave before arriving at the correct answer, or, more importantly, the manner in which she read -- she "had to sound out the words repeatedly before coming to an answer." 970 F. Supp. at 1113-1114.(14) In effect, in terms of accuracy, those subtests provided Bartlett with sufficient time to compensate for her disability. Thus, her scores gave a false appearance of average performance.

The district court was therefore correct in finding that Bartlett's reading disability was not measurable in the manner in which defendants sought to measure it. A diagnosis of learning disability by a qualified professional is a clinical judgment. It is not dependent on a particular score or set of scores on standardized tests. Rather, a diagnosis of a learning disability should be based on a clinical assessment, made on the basis of several factors, including clinical observations arising from an interview of the individual, the individual's academic and learning history, a history of the individual's accommodations in academic and standardized testing situations, and an evaluation of psychoeducational test results that reflect both intra-individual differences and an assessment of how the individual performs in relation to others of comparable age and aptitude/educational experience.

As the district court found, Bartlett, like many adults with dyslexia, has developed "self-accommodations" to compensate for her disability. 970 F. Supp. at 1109, 1120-1121. Dr. Hagin noted, for instance, that Bartlett "used several kinds of cues to assist her in responding to the tasks presented: slowing down the rate of response, verbal rehearsal of rote sequencing items, pointing cues to assist in keeping her place on visual text." 970 F. Supp. at 1109, quoting Pl.'s Exh. 93 at 2. These self-accommodations "account for her ability to spell better and to perform better on word identity and word attack tests than would be expected of a reading disabled person." Ibid. In addition, adults with dyslexia who have learned how to read well enough to pursue higher education typically have drawn on their higher level cognitive abilities to compensate for their deficit in the lower level process of decoding. As the district court noted in Guckenberger v. Boston University, 974 F. Supp. 106, 130-131 (D. Mass. 1997):

A dyslexic's ability to break down written words into their basic linguistic units is impaired. However, * * * higher-level cognitive comprehension abilities -- vocabulary, reasoning, concept formation, and general intelligence -- may remain intact despite the deficit in phonological processing. * * * If an individual has a learning disability that makes phonological processing difficult, that individual will have a difficulty with any aspect of learning that involves language * * *.

Thus, although the higher level language processes of comprehension and meaning are intact for many individuals with dyslexia, they cannot bring them into play in the same manner as those who do not have dyslexia because of their decoding difficulties. By learning basic decoding techniques or skills, they learn how to read, although their decoding effort "remains laborious, tiring and slow." Guckenberger, 974 F. Supp. at 139; see Doane v. City of Omaha, 115 F.3d 624, 627 (8th Cir. 1997) (individual whose brain has made subconscious adjustments in depth perception to blindness in one eye caused by glaucoma and who has learned to compensate for loss of peripheral vision is individual with disability within meaning of ADA because the manner in which he must sense and use peripheral vision is significantly different from the manner in which the average binocular person performs the same activity), cert. denied, 1998 WL 6485 (1998).

Defendants' emphasis on Bartlett's scores on the Word Attack and Word Identification subtests of the Woodcock Reading Mastery Test thus penalized Bartlett for her use of self-accommodations in concluding that she did not have a disability within the meaning of the ADA.

B. Based upon the record, the district court should
have found that Bartlett was substantially limited
in reading and learning as well as working

Despite its findings concerning the conditions, manner and duration under which Bartlett performed the major life activities of reading and learning, the district court found that Bartlett was not substantially limited in those activities. It did so because it believed that, as to reading and learning, the ADA regulations required it to compare Bartlett's condition, manner or duration of performing those activities to the average person in the general population, rather than to a subgroup of the population of similar age, aptitude, and educational background. See 970 F. Supp. at 1120. Because the EEOC Title I regulation specifically permits a comparison to such a subgroup when dealing with the major life activity of working, the court reached out to analyze Bartlett's claim on that basis.

Since the EEOC Title I regulation cautions that an analysis of whether an individual has a disability that substantially limits the major life activity of working should only be reached if the court has already determined that the individual does not have substantial limitations in any other major life activity, 29 C.F.R. Pt. 1630, App. § 1630.2(j), the district court was faced with a Hobson's choice. In order to reach the major life activity of working, the court thought it had to find that Bartlett was not substantially limited in the major life activities of reading and learning. See Bartlett v. New York State Bd. of Law Exam'rs, No. 93 Civ. 4986, 1997 WL 471032, at *3 (S.D.N.Y. Aug. 18, 1997). We submit, however, that adult learning disabilities should generally be analyzed in terms of the substantial limitations they place on the major life activities of reading and learning.(15)

First, in invoking the major life activity of working, the court fell into the same error as the defendants. The court stated (id. at *4):

Finding that plaintiff's history of self accommodation enabled her to perform marginally as well as the average person in the general population, the Court concluded that plaintiff was not substantially limited when compared to this population. (See Opinion [970 F. Supp. at 1121] (stating that when plaintiff's reading skills are compared to the average person in the general population, she would be considered "barely average."))

In so ruling, the court erroneously considered Bartlett's self-accommodations in determining whether her disability is substantially limiting. See Doane, supra.

In addition, and more fundamentally, the court failed to consider the overriding principle that the definition of disability is the same throughout the ADA. As applicable to all the substantive titles of the statute that follow it, a disability is defined in the statute as "a physical or mental impairment that substantially limits one or more of the major life activities of such individual." 42 U.S.C. 12102(2)(A). The Title I regulation relied upon by the district court is EEOC's attempt to give more specific guidance in determining whether an individual is substantially limited in the major life activity of working, because that concept was somewhat unclear under preexisting Section 504 case law. The district court turned to the Title I "working" regulation because it permitted the court to compare the limitations caused by Bartlett's learning disability to a relevant subgroup of the population. The fact that the regulations are not similarly specific with regard to other major life activities, however, does not mean that the courts must assume that a determination of whether an individual has a disability under the Act must always be made based upon a comparison with the general population, regardless of the type of disability at issue. Just as it is proper for the EEOC to narrow the comparison group in its Title I regulation for purposes of the major life activity of working, it is equally proper for the court to construe the Title II regulation as permitting a comparison to a subgroup of the population where the nature of the disability at issue so warrants. Such is the case with learning disabilities, particularly as they relate to adults.

Learning disabilities, by their very nature, are diagnosed by comparing individuals to a relevant subgroup of the population. The diagnosis of learning disabilities involves an assessment that by necessity compares an individual's performance to a norm based on age, aptitude, and grade level. The major life activities in which Bartlett alleged she was substantially limited, i.e., learning and reading, are similarly measured by reference to the norms of relevant subgroups rather than in comparison to the general population. An adult with advanced educational degrees would not be considered to be an average reader if he or she can only read as well as individuals at a substantially lower age or with less education. The appropriate comparison is how well an adult reads compared to his/her peers of comparable age and educational accomplishment. It is by measuring the individual against the relevant subgroup that it becomes apparent whether the individual has a substantial limitation in the way she reads or learns.

Accordingly, the district court quite properly noted that it is essential to assess an individual's learning disability in the context of the individual's situation and the level of reading difficulty one would expect to find in a person who is sitting for a professional examination. See Bartlett, 1997 WL 471032, at *6. That analysis could have been done, however, within the context of the Title II regulation, rather than by resort to the EEOC Title I regulation applicable to whether someone is substantially limited in the major life activity of working. The factual findings made by the district court amply support a conclusion that Bartlett is substantially limited in the major life activities of reading and learning because her ability to read and, thus, to learn is significantly restricted as to the conditions, manner, or duration under which they can be performed in comparison to "most" people of her age, aptitude and educational background.

CONCLUSION

For the foregoing reasons, the judgment of the district court should be affirmed. This Court should make clear that Bartlett has a disability that substantially limits the major life activities of reading and learning as well as working.

Respectfully submitted,

BILL LANN LEE
Acting Assistant Attorney
General

JESSICA DUNSAY SILVER
MARIE K. McELDERRY
Attorneys
Department of Justice
P.O. Box 66078
Washington, D.C. 20035-6078
(202) 514-3068

1. There are three "prongs" to the definition of disability:

(A) a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment.

42 U.S.C. 12102(2). Only the first "prong" is relevant to this case.

2. " Tr. " refers to volume and page numbers of the transcript of trial before the district court from September 5, 1995 to December 20, 1995.

3. Prior to entering law school in 1988, Bartlett received a B.S.Ed. in Early Childhood Teacher Education in 1970, a M.Ed. in Special Education in 1976, and a Ph.D. in Educational Administration in 1981. 970 F. Supp. at 1101.

4. Bartlett did not receive any testing accommodations during her educational experience until she entered New York University's Ph.D. program in Educational Administration. She received testing accommodations at NYU, including unlimited time on final examinations, at the recommendation of a faculty advisor, and before she was officially diagnosed as having dyslexia in 1989. Bartlett initially requested and received the accommodation of time-and-a-half to take law school examinations in 1989, after her first year in law school. See Bartlett, 970 F. Supp. at 1101-1102.

5. Bartlett elected to take the multistate portion of the exam in Pennsylvania. 970 F. Supp. at 1104. She did not pass that portion, despite being given accommodations. Ibid.

6. Bartlett's request for testing accommodations on the July 1993 examination was based, in part, on the results of psychoeducational tests administered on two separate occasions. 970 F. Supp. at 1102-1103. The first battery of tests was administered in 1989 by Dr. Philip M. Massad, who diagnosed her as having dyslexia. Id. at 1102. The second battery was administered by Dr. Richard F. Heath in May 1993 following the Board's request that she provide more current scores from the Woodcock Reading Mastery Test. 970 F. Supp. at 1106-1107; 5 Tr. 667-669 (Marilyn Bartlett); 4 Tr. 502-503 (Dr. Richard F. Heath). Heath confirmed Dr. Massad's diagnosis. Heath described Bartlett as a dyslexic adult and noted that she "decoded words slowly and without automaticity." 970 F. Supp. at 1107.

7. The Woodcock Reading Mastery Test is a series of tests that are normed up to grade 16.9, i.e., college graduates. The Woodcock Word Attack subtest requires a subject to sound out nonsense words. It is a test of a person's ability correctly to associate letter combinations with their sounds, a task referred to as phonological decoding ability. The Woodcock Word Identification test requires the subject to identify real words in isolation that range from simple to more complex. Both tests are untimed, and the scores do not reflect incorrect tries that precede a correct answer. 970 F. Supp. at 1106 n.*, 1111.

8. In his affidavit of direct testimony describing Bartlett as a "dyslexic adult," Heath noted some of the things that are classic indicators of an intelligent adult who has significant difficulty in reading. See Bartlett, 970 F. Supp. at 1107. For example, he described her attempts at sounding out "words which should have been second nature to her," reading "full of hesitations, and self corrections," the "use [of] her finger to keep her place," and the practice of reading more complex passages over several times as a means of obtaining "contextual cues to facilitate her decoding." Ibid., internal quotation marks omitted. These difficulties would not be identified by a standardized test, only by clinical observation. See, e.g., 4 Tr. 447-448, 474-475 (Heath); 6 Tr. 748-750 (Hagin); 10 Tr. 1377-1379 (Hagin).

9. Bartlett's expert, Dr. Rosa Hagin, testified that Bartlett's "self-accommodations" accounted for her ability to perform better on these tests "than would be expected of a reading disabled person." 970 F. Supp. at 1109.

10. Defendants' contention (Br. 31-35) that the court should have given deference to the Board's finding that Bartlett did not have a disability is misplaced. This Court's statement in Doe v. New York University, 666 F.2d 761 (1981), that deference is due to an educational institution's evaluation of whether an individual is otherwise qualified academically is inapposite to the issue whether the individual has a disability. The reason given by this Court for granting deference to the University in Doe was that courts are "particularly ill-equipped to evaluate academic performance," id. at 776, quoting Board of Curators of University of Missouri v. Horowitz, 435 U.S. 78, 92 (1978). In contrast, determining whether an individual has a disability is not within the special expertise of the Board of Law Examiners. Moreover, as we demonstrate above, contrary to the Board's assertion (Br. 34) that its standards are consistent with the Department of Justice's Title II regulation, the criteria used by the Board were ill-suited to measuring whether the "condition, manner and duration" under which Bartlett read and learned was substantially restricted in comparison to most people.

11. Although reading is not in the list of major life activities enumerated in the regulations, that list is illustrative only. The district court correctly found (970 F. Supp. at 1117) as have other courts (see, e.g., Pridemore v. Rural Legal Aid Soc'y, 625 F. Supp. 1180, 1183-1184 (S.D. Ohio 1985)) that reading is a major life activity.

12. Indeed, the district court directly observed the condition and manner used by Bartlett to read and write, including using her fingers to keep her place in the text, spelling errors, and mirror writing. She read aloud, "haltingly and laboriously," at 40 words per minute and took approximately 10 minutes to write a 48-word passage that was dictated to her. 970 F. Supp. at 1110; 6 Tr. 744-758.

13. In addition to being untimed, the Woodcock is inappropriate as the sole measure of Bartlett's learning disability for other reasons. First, it has too few items in the difficult range and is thus too easy for a highly educated adult. 970 F. Supp. at 1114. When Heath recalculated Bartlett's scores on the basis of the grade norm reflecting the closest educational level to hers that was sampled (grade 16.9 or end of college senior year), her score on Form G of the Word Attack subtest was 86 (18th percentile) and on Form H was 96 (39th percentile). That resulted in a combined score of 90 (26th percentile), below Vellutino's 30th percentile cutoff. Pl. Exh. 88; 4 Tr. 466-474 (Heath). In addition, the subtests, which use single words, may be an inadequate measure of an individual's ability to read the complex and connected text on the bar examination.

14. When Dr. Heath recalculated her scores using her first response rather than her final response (those she gave after taking "twice [as] much [time], if not more") (4 Tr. 477), "her scores dropped dramatically" (4 Tr. 475).

15. It was appropriate, however, for the court to look to the EEOC Title I regulation as guidance in determining the meaning of the term "substantially limits" even though this is a Title II case. See Bartlett, 1997 WL 471032, at *1-2.