Americans with Disabilities Act Core Letter

# 119

II - 3.6000

II - 7.1000

III - 4.6100

January 13, 1994

Mr. James T. Fuller

Executive Secretary

New York State Board of

Law Examiners

7 Executive Center Drive

Albany, New York 12203-5148

Dear Mr. Fuller:

This letter constitutes the Department of Justice's (the Department) Letter of Findings with respect to the allegations received by this office concerning violations of title II of the Americans with Disabilities Act of 1990 (ADA) by the New York State Board of Law Examiners (the Board). Title II prohibits discrimination against qualified individuals with disabilities on the basis of disability by State and local governments.

The allegations concern denial of accommodations requested by individuals with disabilities for the New York State Bar Examinations administered in February and July, 1992 and February 1993.

Title II of the ADA, 42 U.S.C. §§ 12131-12134, prohibits discrimination on the basis of disability against qualified individuals with disabilities by public entities. The Coordination and Review Section of the Civil Rights Division is responsible for investigation and resolution of administrative complaints alleging violations of title II by components of State and local governments in the area of the administration of justice, including courts. 28 C.F.R. § 35.190(b)(6). The Department of Justice has authority to conduct investigations when it receives a complaint or when it has reason to believe that a public entity subject to its jurisdiction is violating title II.

As discussed in detail below, the Department finds that the Board has denied qualified individuals with disabilities an opportunity to participate in and benefit from the bar examination that is equal to the opportunity afforded to others. Specifically, the Board has refused to provide qualified individuals with disabilities the accommodations necessary, based on the nature and severity of their disabilities, to afford them an opportunity to demonstrate the legal knowledge and legal reasoning ability that the examination purports to measure that is equal to the opportunity afforded to others. The Board has provided accommodations in some circumstances only after qualified individuals with disabilities protested the Board's actions or filed complaints in court or with the Department of Justice. In addition, the Board has failed to cooperate in good faith in the Department's investigation.

Although the Department has not had the opportunity to review the records of all applicants who may have been affected and, therefore, has not completed its investigation of all of the Board's policies and practices relevant to this matter,(1) the Department has determined that the Board has engaged in, and continues to engage in, a number of practices that violate title II and the Department's regulation implementing title II, 28 C.F.R. pt. 35. In addition, the Department has determined, based on the Board's continued refusal to allow the Department access to its records and its continued resistance to inquiries that are not directly related to the complaint originally received by this office in June1992, that the Department is unable to resolve this matter informally. Accordingly, the Department is issuing this Letter of Findings as provided in 28 C.F.R. § 35.172.

Pursuant to 28 C.F.R. § 35.172(a)(3), the Department is hereby informing the Board that the Department is prepared to enter into negotiations with the Board in order to secure compliance by voluntary means, as provided in 28 C.F.R. § 35.173. If the Board declines to enter into voluntary compliance negotiations or if the Department determines that the negotiations are unsuccessful, we will refer the matter to the appropriate office of the Department with a recommendation that it promptly initiate litigation as provided in 28 C.F.R. § 35.174.

APPLICABLE LAW

The Americans with Disabilities Act (ADA), enacted on July 26, 1990, provides comprehensive civil rights protections to individuals with disabilities in the areas of employment, public accommodations, State and local government services, and telecommunications. Subtitle A of title II of the ADA applies to all programs, services, and activities of State and local governments.

Section 202 of the ADA (42 U.S.C. § 12132) provides that --

Subject to the provisions of this title, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

Section 201 defines a "qualified individual with a disability" as --

an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity. 42 U.S.C. § 12131 (2).

With respect to licensing, a "qualified" individual with a disability is one who meets the "essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity." 28 C.F.R. § 35.104. The Board does not dispute that individuals who have requested accommodations are "qualified" to take the bar examination. While a licensing Board may establish requirements in addition to its requirements for a written examination, it must establish that any such requirements that exclude otherwise qualified individuals with disabilities are "essential." It may not, however, use an examination to exclude individuals with disabilities by administering the examination in a manner that denies those individuals an equal opportunity to demonstrate the knowledge and abilities that the test purports to measure in individuals without disabilities.

Section 35.130(a) of the Department of Justice's regulation implementing title II (28 C.F.R. pt. 35) restates the general requirement of section 202 of the statute. The specific requirements of the regulation apply this general principle to particular situations. Section 35.130(b)(6) provides that a public entity may not administer a licensing or certification program in a manner that subjects qualified individuals with disabilities to discrimination on the basis of disability. Thus, the nondiscrimination obligations are specifically applied to the Board's function of licensing attorneys.

Section 35.130(b)(1)(ii) provides that a public entity may not provide a qualified individual with a disability an opportunity to participate that is not equal to that afforded others. Denial of necessary accommodations violates this requirement. Compelling an applicant with a disability to take or threaten legal action in order to obtain a necessary accommodation also violates this requirement.

Section 35.130(b)(1)(iii) requires a public entity to provide qualified individuals with disabilities an "equal opportunity to obtain the same result" from its programs and activities as the opportunity provided to individuals without disabilities. With respect to administration of the bar examination, an "equal opportunity to obtain the same result" is an equal opportunity to demonstrate the skills, knowledge, and achievement that the bar examination is intended to measure.

Section 35.130(b)(1)(vii) provides that a public entity may not otherwise limit a qualified individual with a disability in the enjoyment of any right, privilege, advantage, or opportunity provided to others. Refusing to provide an accommodation required by the statute unless an applicant with a disability takes or threatens to take legal action also violates this requirement.

Section 35.130(b)(7) requires a public entity to make reasonable modifications in policies, practices, or procedures, when the modifications are necessary to avoid discrimination on the basis of disability, i.e., to provide a qualified individual with a disability (as defined in 28 C.F.R. § 35.104) an equal opportunity to demonstrate the skills, knowledge, and achievement that the bar examination is intended to measure. Modifications must be provided unless the public entity can demonstrate that the requested modification, or an equally effective alternative modification, would fundamentally alter the service, program, or activity.

The regulation also requires a public entity to take appropriate steps to ensure that communications with individuals with disabilities are as effective as communications with others, unless the steps would result in a fundamental alteration or in undue financial and administrative burdens. 28 C.F.R. § 35.164. 28 C.F.R. § 35.160(a). When an auxiliary aid or service is necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity, the public entity must provide the aid or service (28 C.F.R. § 35.160(b)(1)) and may not charge the individual for the cost of the aid or service. 28 C.F.R. § 35.130(f). Also, in determining what type of auxiliary aid or service is necessary, a public entity must give primary consideration to the requests of the individual with a disability. 28 C.F.R. § 35.160(b)(2).

Also, section 204(b) of the ADA requires that the Department's regulation implementing subtitle A of title II be consistent with the ADA. Thus, interpretation of the title II regulation must be consistent with title III of the ADA, including section 309, which provides that --

Any person that offers examinations or courses related to applications, licensing, certification, or credentialing for secondary or postsecondary education, professional, or trade purposes shall offer such examinations or courses in a place and manner accessible to persons with disabilities or offer alternative accessible arrangements for such individuals.

42 U.S.C. § 12189. The requirements for examinations under the Department of Justice's regulation implementing title III at 28 C.F.R. § 36.309, therefore, would also apply to this case.

In addition, because title II of the ADA essentially extends the nondiscrimination mandate of section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794) (section 504)(2) to the programs of those State and local governments that do not receive Federal financial assistance, the interpretations of section 504 may be referred to in interpreting title II. The Department of Education's regulation implementing section 504 for its federally assisted programs and activities, which includes specific requirements for nondiscriminatory testing of individuals with disabilities (34 C.F.R. § 104.42(b)(3)), therefore, provides additional guidance on the requirements of title II in this case. Both the Department of Education's section 504 regulation and the Department of Justice's title III regulation provide that tests and examinations must be administered to individuals with disabilities in a manner that ensures that --

the examination results accurately reflect the individual's aptitude or achievement level or whatever other factor the examination purports to measure, rather than reflecting the individual's impaired sensory, manual, or speaking skills (except where those skills are the factors that the examination purports to measure).

28 C.F.R. § 36.309 (b)(1)(i); see also 34 C.F.R. § 104.42 (b)(3)(i).

Considered together, these requirements establish the Board's obligations in administering its examination to qualified individuals with disabilities. The Board must inform applicants of its obligation to provide appropriate accommodations(3) and must give them an opportunity to provide advance notice of their need for accommodations. The Board may require applicants to submit appropriate documentation, at the applicants' expense, of their disabilities and of any modifications or aids that would be required, provided that the requests for documentation are reasonable and limited to the need for the modification or aid requested. Appropriate documentation might include a letter from a physician or other professional, or evidence of a prior diagnosis or accommodation, such as eligibility for a special education program. The applicant may be required to bear the cost of providing such documentation, but the entity administering the examination cannot charge the applicant for the cost of any modifications or auxiliary aids, such as amanuenses, provided for the examination.

When an applicant requests accommodations and submits supporting documentation, the Board may review the documentation to determine whether the applicant is a qualified individual with a disability (as defined in 28 C.F.R. § 35.104). If the applicant is a qualified individual with a disability, the Board must determine what accommodations are necessary to ensure that the applicant has an equal opportunity to demonstrate the skills, knowledge, and achievement that the bar examination is intended to measure. The applicant has the burden of proving that he or she is an individual with a disability, but, if the applicant produces documentation from a qualified expert as to the existence of the disability and the need for accommodations because of the disability, the Board must provide competent evidence from a qualified expert to refute the applicant's documentation. As explained by the court in D'Amico v. New York State Board of Law Examiners, 813 F. Supp. 217 at 223 (1993),

the Board must understand that they may not always be in the best position to determine what is a reasonable accommodation for an applicant who has a disability that can only be diagnosed and treated by a physician with significant experience and expertise. The Board's opinion as to what is "reasonable" for a particular applicant can be given very little weight when the Board has no knowledge of the disability or disease, no expertise in its treatment, and no ability to make determinations about the physical capabilities of one afflicted with the disability or disease.

Where there are factual questions about the nature and extent of the accommodation required, the Board must determine, on a case-by-case basis, what accommodations will result in an equal opportunity for the particular individual with a disability. This determination must also be based on competent expert evidence where the Board and the applicant cannot agree on the necessary accommodation.

Section 203 of the ADA adopts the "remedies, procedures,

and rights" provided in section 505 of the Rehabilitation Act,

29 U.S.C. 794a, as the enforcement procedures for title II, and section 505, in turn, incorporates by reference the remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d to 2000d-4a). Title VI regulations provide for access to records necessary for investigations. See 28 C.F.R. § 42.406. Therefore, title II regulations incorporate these title VI procedures.

FINDINGS OF FACT

The Department's findings of fact are set out in Attachment A to this letter.

CONCLUSIONS OF LAW

1. As an agency of the New York State Court of Appeals, the New York State Board of Law Examiners is a public entity providing a program or service in its administration of the New York State bar examination.

2. The New York State bar examination is a program or activity conducted by a public entity, and all administrations of the examination after January 26, 1992, are covered by title II.

3. The Board's policy, prior to November 1992, of requiring applicants to submit requests for accommodations 90 days before the date of the examinations, while permitting applicants who did not request accommodations to file up to 30 days before the examination, was a violation of 28 C.F.R. § 35.130(a); (b)(1)(ii); (iii); and (vii); and (b)(6) and (7).

4. The requirement that applicants with disabilities who requested accommodations for the February 1992 examination file their requests earlier than the filing deadline for other applicants, January 27, 1992, was a violation of 28 C.F.R.

§ 35.130(a); (b)(1)(ii); (iii); and (vii); and (b)(6) and (7).

5. In the cases of XX, XX, XX, XX, XX, XXXX, XX, and XX, documentation of the need for extra time was provided by the applicant, but the Board refused the requests without justification based on medical or professional judgment. The Board's refusal to make reasonable modifications in the length of time permitted for completion of the examination where such modifications were necessary to provide those individuals with disabilities an opportunity to demonstrate the legal knowledge and legal reasoning skills that the examination purports to measure that was equal to the opportunity provided to individuals without disabilities, was a violation of 28 C.F.R. §§ 35.130(a) and 35.130(b)(6) and (7).

6. In the cases of XX, XX, XX, XX, XX, XX, XXXX, XX, and XX, by refusing to extend the testing period beyond the two regularly scheduled days, the Board has provided alternative testing conditions for individuals with disabilities that are not comparable to the conditions provided for individuals without disabilities. The conditions provided for individuals with disabilities are substantially inferior to the conditions provided for individuals without disabilities and do not provide individuals with disabilities an opportunity to demonstrate the legal knowledge and legal reasoning skills that the examination purports to measure that is equal to the opportunity provided to individuals without disabilities. These actions violate 28 C.F.R. §§ 35.130(a); (b)(1)(ii); (iii); and (vii); and (b)(6) and (7).

7. In the cases of XX, XX, XX, and XXXX, the Board provided the requested accommodation only after individuals with disabilities undertook or threatened legal action in order to obtain the accommodations that the individuals' documentation established were necessary to provide such individuals with disabilities an opportunity to demonstrate the legal knowledge and legal reasoning skills that the examination purports to measure that is equal to the opportunity provided to individuals without disabilities. These actions violate 28 C.F.R.

§ 35.130(b)(1)(vii).

8. In the cases of XX, XX, XX, XX, XX, XX, XXXX, XX, and XX, the Board did not conduct individualized assessments to determine the modifications required to ensure that the examination accurately reflected the legal knowledge and legal reasoning skills of each particular individual with a disability requesting accommodations.

With respect to individuals with physical disabilities, including vision impairments (XX and XXXX), multiple sclerosis (XX), and quadriplegia (XX), the Board rejected requests based on documentation from competent medical experts, without requesting or obtaining even informal medical opinions concerning the applicant's condition or the effect of the condition on the applicant's testing requirements.

With respect to mental impairments (XX) and learning disabilities (XX, XX, and XX), the Board relied on informal, unwritten opinions from consultants who had not examined the applicant and who may not be experts on the applicant's particular condition. In the case of XX, the Board denied all accommodations requested even though the request was supported by the Board's own expert, and even though the Board provided accommodation to individuals who were similarly situated but did not have a disability.

In each of these cases, the applicant provided supporting documentation to establish that he or she had a disability and required accommodations, and the Board denied the accommodations requested without an adequate factual basis for determining that the accommodations were not required. These actions violated 28 C.F.R. §§ 35.130(a); (b)(1)(ii); (iii); and (vii); and (b)(6) and (7).

9. Prior to the July 1992 examination, the Board required that applicants with disabilities who needed amanuenses or other aides or assistants to take the examination to provide and compensate the amanuensis, aide, or assistant. This action violated 28 C.F.R. § 35.130(f).

REMEDIES

In order to resolve this case, it will be necessary to enter into a formal written voluntary compliance agreement that will provide appropriate remedies for the victims of past discrimination and will ensure that the types of violations that occurred in the past will not be repeated. Accordingly, the Department hereby offers the Board an opportunity to negotiate a voluntary compliance agreement, as provided in 28 C.F.R.

§ 35.173. The compliance agreement must include --

1. Standards and procedures for processing requests for accommodation, including standards and procedures for determining whether the applicant is a qualified individual with a disability, and standards and procedures for making an individualized determination of the accommodations necessary to provide each qualified individual with a disability an opportunity to participate in and benefit from the bar examination that is equal to the opportunity afforded to others.

2. Compensation for victims of discrimination for examinations administered since January 26, 1992, including those identified above and all others similarly situated. This will require the provision of the files for all applicants who requested accommodations for examinations administered after January 26, 1992.

3. Specific record-keeping and reporting requirements to enable the Department of Justice to monitor the Board's compliance with the standards and procedures adopted.

The Department remains open to discussing these issues and exploring any remedies that could lead to a satisfactory resolution. In that regard, Thomas Esbrook, the investigator assigned to the case, (202) 307-2940, will be in contact with you in the near future to ascertain whether the Board is interested in entering into voluntary compliance negotiations. If the Board does not wish to negotiate, or if negotiations are unsuccessful, we are required by 28 C.F.R. § 35.174 to refer this matter to the litigating unit, the Public Access Section, for appropriate action.

The Department would appreciate your prompt attention to this letter.

Sincerely, James P. Turner Acting Assistant Attorney General Civil Rights Division

cc: Ellen J. Fried

Assistant Attorney General

Attachment A New York Board of Law Examiners FINDINGS OF FACT

I. ACCESS TO RECORDS

As set out in our letter of May 25, 1993, in June 1992, the Department received two complaints alleging violations of title II of the ADA (42 U.S.C. §§ 12131-12134) by the New York Board of Law Examiners. The complainants, XXXXXX XXXXX and XXXXX XXXXX, alleged that they were denied certain accommodations that they requested for the New York State Bar Examination, scheduled for July 28 and 29, 1992. Both complainants alleged that the accommodations they requested were necessary, based on the nature and severity of their disabilities, and that they had provided sufficient medical and other justification to support their requests.

The Department expedited its investigation of these complaints because of the imminence of the bar examination. One of the complainants (Robert Pipia) filed a private suit against the Board, and settled out of court when the Board agreed to provide the accommodation he had requested. The Department contacted the Board by telephone on July 15, 1992, and the Board agreed to provide the accommodation requested by the other complainant for the July 1992 examination and to cooperate in our administrative investigation. On August 21, we sent the Board a written data request that included, inter alia, a request for an on-site review of records in order to obtain the information covered by the following two items:

1. Identify all applicants who identified a disability and applied for special testing accommodations for the February and July 1992 administrations of the

New York State Bar Examination.

2. Either submit copies, or make available for review and copying onsite, all relevant case files for the individuals identified in item 5, above.

On September 25, the Board responded to the data request with a letter raising concerns about our jurisdiction to conduct an investigation and about the confidentiality of records concerning applicants. On November 10, 1992, we responded to these confidentiality concerns by proposing the following stipulation:

All papers, records, and documents concerning the application or examination of any person for admission as an attorney and counsellor at law in the State of New York released to the Department of Justice in the course of our investigation shall be treated as private and confidential by the Department of Justice and all of its agents and employees. All such papers, records, and documents, and any other information provided by the Board shall be used exclusively for law enforcement purposes and shall not be disclosed except where necessary in formal enforcement proceedings or where otherwise required by law. If a Freedom of Information Act or Privacy Act request is filed for information obtained from the Board, the Department of Justice will react or otherwise obscure the name or names of individuals, personally identifying information, medical information, and any other information of which disclosure would constitute a clearly unwarranted invasion of personal privacy.

On December 22, 1992, the Board responded that it was not satisfied with the stipulation, and suggested that the Department apply to the Presiding Justice of the Appellate Division in Albany for release of the records in accordance with Section 90.10 of the New York Judiciary Law. On December 31, we advised the Board that we considered the stipulation offered in our November 10 letter to be adequate to meet the Board's concerns about privacy, and that any procedures the Board considered necessary under State law requirements to enable it to respond to our data request were the responsibility of the Board. We further requested a response to those items in our original data request that did not involve review of individual applicant files.

In the Board's letter of April 30, 1993, the Board confirmed that it had applied to the State Appellate Division for the release of confidential files, that the Administrative Board of the Unified Court System had recently determined that the Board could release the information to the Department "so long as the consent of the individual applicants [is] first obtained," and that it was in the process of contacting those individuals "in as expeditious a manner as possible."

On May 25, 1993, the Department advised the Board that, in view of the fact that the Board was scheduled to administer another bar examination in July 1993, the Department had determined that further delay in concluding our investigation would be unacceptable. Our letter stated that, unless the Board agreed to schedule an on-site investigation, to include all relevant case files for individuals who have sought, or are seeking, special testing accommodations for examinations administered after January 26, 1992, and to begin no later than ten days after its receipt of the letter, i.e., by June 4, 1993, the Department would have no choice but to issue a "Letter of Findings" determining that the Board is in noncompliance with title II of the ADA.

On June 2, the Board responded by agreeing to allow the Department to review the files of the applicants who had returned their release forms. The Board refused, however, to allow access to the files of individuals who denied consent to the release of their files or whose responses had not been received. The Department accepted the offer of partial access, but advised the Board that our position concerning our authority to review all of the documents the Department requested remained unchanged. On June 4, the Board provided the files of 34 applicants for inspection and copying, approximately 10% of the 322 applicants who requested accommodations for the February and July 1992 and the February 1993 examinations.

On June 25, the Board made available an additional 26 files of individuals who consented to release their records to the Department for this investigation. At that time, James T. Fuller, Executive Secretary of the Board, stated that 76 people had given consent for release of their records. Mr. Fuller also stated that the Board would not provide the files of an additional 17 individuals, who had consented to their release, for the following reasons: the Board has taken the position that it is not liable for any actions prior to the effective date of title II, January 26, 1992. The files of fourteen individuals who requested testing accommodations prior to 1/26/92, and who provided their consent for release of their files, were therefore not provided. The Board also contested DOJ's authority to include the July 1993 exam as part of the investigation but indicated that a letter would be forthcoming from

Ms. Ellen Fried, Board attorney, explaining its position.

Ms. Fried's letter of July 21, 1993, stated that an additional 16 files were then available and that the reason these files were not provided earlier is that they "were either being used by the Board in connection with the July 1993 exam or the staff had not had sufficient time to prepare the file." The letter does not mention the other 246 files, and the Department understands the Board's position to be that those files will not be made available for the Department's review.

The remainder of the July 21 letter discusses the Board's proposed mailing to applicants who requested accommodation for the July 1993 examination. However, in her letter of June 2, 1993, Ms. Fried had stated that the Board would "gladly consider" suggestions from the Department concerning the contents of this letter to the applicants. In response to that invitation, the Department's letter of June 3, 1993, proposed inclusion of a statement of the Department's position with respect to the confidentiality of the records. Ms. Fried's response on June 23 stated that, rather than including the statement in its own letter, the Board was requesting that the Department provide a copy of the statement on Department of Justice letterhead for inclusion in the mailing. Ms. Fried's letter also stated that the Board intended to state in its letter that "it expresses no opinion as to the efficacy or the enforceability of the Department's commitments as to the confidentiality of the information contained in the files provided to the Department in connection with post-investigation Freedom of Information Act ('FOIA') requests."

The Department determined that providing a copy of the proposed statement on Department of Justice letterhead, without additional explanation, could be construed as implying agreement with the Board's position that the applicants' releases could be required or as condoning the Board's disclaimer. This determination was based, in part, on the assertion, in

Ms. Fried's letter of June 2, that the Department's suggested inclusion of the names and telephone numbers of Department contacts in the Board's earlier mailing was inconsistent with the Department's position that consent of the applicants was not required. The Department therefore responded on July 1 with a proposed letter to the applicants on Department letterhead for inclusion in the mailing. Ms. Fried's letter of July 21 objected to the Department's proposed letter, on the grounds that it "solicits complaints and advises the applicants of their right to sue."(4) Ms. Fried's letter did not address the Department's explanation for its rejection of the Board's previous offer. While the Department understood the Board's objection to notifying applicants of their rights under the statute, it did not concur with the Board's position. The Department did not attempt to dictate the contents of the Board's letter to its applicants and declined the Board's offer to assist the Department in preparing a letter acceptable to the Board. The Board subsequently decided to include the Department's letter in its mailing to applicants who took the July 1993 examination.

II. THE EXAMINATION

The New York State Bar Examination is administered twice each year, in February and July. It is given in two parts over two days. The first day (Tuesday of the week the test is given) is devoted to the New York portion of the examination, which consists of six essay questions and 50 multiple-choice questions. The second day (Wednesday) is the Multistate Bar Examination (MBE), which consists of 200 multiple choice questions provided by the National Conference of Bar Examiners. Under the standard procedures, the New York portion of the examination is given from 9:00 AM to 12:15 PM and 1:30 to 4:45 PM on Tuesday and the multistate is given from 9:00 AM to 12 noon and 1:30 to 4:30 PM on Wednesday of the week the test is scheduled. These hours are extended for individuals with disabilities who are granted additional time as an accommodation, but the Board generally does not extend the additional hours over additional days.

According to a study commissioned by the New York State Court of Appeals,(5) the examination is intended to measure legal knowledge and legal reasoning ability.(6) The information available did not permit a conclusion on whether the examination also measures speed,(7) but the panel of experts assembled to assess the content validity of the examination agreed that speed should not be a major component of the examination.(8)

III. BOARD POLICIES

On January 20, 1993, the Board responded to those items of our August 21, 1992 data request that did not require access to applicant records. As described in the Board's response to that request, provision of accommodations for individuals with disabilities is governed by § 6000.4 of the Rules of the Board, which was revised on November 11, 1992. As revised, § 6000.4 states that the Board 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."

A. Extended Time and Additional Testing Days

On June 7, 1992, the Board formally adopted a policy limiting the time allowed for individuals with disabilities to a maximum of time and one-half(9) and requiring that all examinations be completed within the two regularly scheduled examination days. Apparently, however, this policy merely confirmed the Board's practice that was in effect for the February 1992 examination.

Under the rule as revised in November 1992, the Board states that, although it

expects, in view of considerations such as examination validity and security, that most candidates will sit for the examination within the standard two-day time frame, the Board will consider on their merits requests for time allowances in excess of that time frame and make every effort to provide accommodations that are reasonable in light of the nature and purposes of the examination.

The Executive Secretary of the Board, Mr. James T. Fuller, has authority to grant accommodations that do not exceed time and one-half within the standard two days. Requests for additional time or testing days must be referred to the Board.

B. Application Procedures

Prior to November 1992, according to the Board's written response to the Department's data request, applicants requesting accommodations were required to inform the Board of the need for accommodation and provide documentation of the disability claimed and the relationship of the disability to the requested accommodations.

Pursuant to the "new" rule adopted in November 1992, the examination application packet includes a form for candidates to request accommodations. The form requires a specific description of the accommodation requested and documentation from the diagnosing professional stating the nature of the disability and the relationship between the disability and the accommodation requested. Candidates are also required to submit documentation of the three most recent testing accommodations, if any, provided by schools or other testing authorities. In addition, the Board "may, in its discretion, require the candidate to provide additional information relating to the disability and/or prior accommodations, and may also require that the applicant submit to examination by an expert designated by the Board in connection with the candidate's request for testing accommodations."

§ 6000.4(d). The Board's Handbook for Applicants specifies that the cost of providing the additional documentation or examination will be borne by the applicant unless the Board waives this requirement "for good cause."

C. Auxiliary Aids and Services

The Board has changed its policy with respect to provision of auxiliary services. Prior to July 14, 1992, the Board required applicants to retain and pay for readers, writers, and amanuenses to assist in taking the examination. This policy was changed before the July examination. The Board will now provide an assistant or will permit the applicant to select the assistant, subject to reasonable restrictions. In either case, the Board now recognizes its responsibility to pay for the assistance needed.

D. Appeals

The November 1992 revision to the Board's rules established procedures for appealing the denial of a request for an accommodation. The letters sent to applicants denying their requests, however, do not contain an explanation of the reasons for the denial or notice of the right to appeal.

E. Application Deadlines

Prior to the revision in the Board's rules in November 1992, the Board required applicants to submit requests for accommodations 90 days before the date of the examination. Applicants who did not request accommodations were permitted to file up to 30 days before the examination. This difference in deadlines was eliminated by the November policy revision. Now, the filing deadline for all applicants is 60 days before the examination. For the February 1992 examination, however, the Board's filing deadline for applicants not requesting accommodations was January 27, 1992, one day after the effective date of title II.

F. Other Policies

Although we do not have sufficient information to make a finding with respect to the Board's provision of an accessible testing location, large print copies of the examination, or similar accommodations for individuals with physical disabilities, our investigation generally did not reveal evidence that the Board discriminates in those areas.

IV. VICTIMS OF DISCRIMINATION

A. Litigation and administrative complaints

The following qualified individuals with disabilities received accommodations only after they filed complaints in court or with the Department of Justice.(10) The Department finds that, based on the evidence available to the Board at the time it made its determination, it is more likely than not that the Board's decision, prior to the filing of the complaint, denied these applicants accommodations that were necessary to provide them an opportunity to demonstrate the legal knowledge and legal reasoning skills that the examination purports to measure that was equal to the opportunity provided to individuals without disabilities. Denial of such accommodations without provision of competent evidence from a qualified expert to refute the evidence provided by the applicant violates both the substantive and procedural requirements of title II. (See D'Amico, 813 F. Supp. at 223.)

XX(11)

The Board denied a request from XX for special arrangements to take the February 1992 bar examination. XX provided extensive documentation to establish that she had a learning disability and that the accommodations were necessary to afford her an equal opportunity to successfully complete the examination. The Board chose not to credit this documentation and determined that XX was not an individual with a disability and, therefore, was not entitled to accommodation. RR then filed a private suit against the Board (Rosenthal v. New York Board of Law Examiners, 92 Civ. 1100 (JSM)), which was settled when the Board agreed to provide the accommodations requested.

XX and XX

Two individuals with disabilities, XX and XX, filed administrative complaints with the Department of Justice prior to the administration of the examination on July 28 - 29, 1992. The Board did not dispute that complainants XX and XX were qualified individuals with disabilities (as defined in 28 C.F.R. § 35.104)

who were eligible to take the bar examination, and agreed to provide each complainant with some of the accommodations requested.

XX

XX is an individual with a neuromuscular disorder rendering him functionally quadriplegic with a resulting low threshold for fatigue. In applying to take the examination, XX requested double time for taking the examination, rest periods, and additional exam days to allow for the additional testing time and rest periods.

On June 19, 1992, the Board advised XX that he would be given time and one-half to complete the test on the two regularly-scheduled testing days. The Board explained that any rest breaks XX required must be taken within the time frame granted for each test session. XX subsequently filed suit against the Board, and the Board settled the lawsuit by agreeing to provide the additional testing days and rest periods.

XX

The other complainant, XX, has a learning disability. XX requested additional time, but not less than an additional two hours for each three hour session of the test (i.e., one and two-thirds of the standard time) and services of an amanuensis.

XX provided the Board with extensive documentation of his disability, including an expert opinion concerning the specific accommodations that would be necessary and documents showing that these accommodations were previously provided in his undergraduate and law school education. This documentation suggests that a minimum adjustment for his disability is one and three-quarters additional time.

The Board required XX to take the Woodcock Reading Mastery Test at his own expense ($500.00) to supplement the documentation submitted with his application.

The Board offered XX an additional one and one-half hours extension per test session.

After the Board settled the suit filed by XX, the Department advised the Board that it was prepared to find the Board in noncompliance with title II and to recommend that suit be filed against the Board pursuant to 28 C.F.R. § 35.174. The Board subsequently agreed to provide the full additional time requested by XX (one and two-thirds of the standard time, rather than the one and one-half time it had previously agreed to) and to cooperate with the Department in the administrative investigation of the Board's policies that was initiated on the complaints.

Although the Board agreed to grant additional time to XX for the July 1992 examination, it refused to extend the examination to additional testing days. As a result, XX was required to take the examination in four, five-hour sessions on the two regularly scheduled examination days. XX failed the July 1992 examination.

XXXX

XXXX is an individual with a severe visual disability, even with corrective lenses, that makes reading extremely difficult, and the condition is exacerbated when she reads for extended periods of time. She requested and received accommodations for the July 1992 examination, including a large print exam, a separate testing room, and permission to bring her own lamp and straight edge and to write her answers on the test booklets, rather than on the computer answer sheets. She was also permitted additional time to complete the examination (nine hours on the first day and nine and one-half hours on the second day), but she did not request or receive permission to extend the test over more than two days. XXXX failed the July 1992 examination.

XXXX applied for the February 1993 examination, requesting similar accommodations to those provided in July. In addition, on the advice of her physician, she asked to take the exam over a four day period instead of two. The Board granted all accommodations except the four-day testing period, and XXXX filed suit under titles II and III(12) of the ADA seeking a preliminary injunction to compel the Board to provide the additional testing days. D'Amico, supra, 813 F. Supp. at 223.

The Board did not dispute that the plaintiff was a qualified individual with a disability and was entitled to accommodations under the ADA, but argued that allowing her unlimited time to take the examination within the two regularly scheduled days was sufficient to meet its obligation. The Board agreed that any security issues raised by extending the examination over additional days could be resolved. In making this decision, the Board rejected the medical opinion of plaintiff's treating physician, but did not consider or produce any medical opinion or evidence to contradict the recommendation submitted by the plaintiff. The court found that "[w]ithout addressing

Dr. Lerner's medical opinions, the Board, by fiat, determined that plaintiff's request was unreasonable and not required." 813 F. Supp. at 222. The court granted the injunction, finding that the Board's decision to disregard the opinion of the plaintiff's treating physician was "unwarranted and ill-advised and [could not] withstand scrutiny under the ADA."

B. Additional victims

In the following cases, we have determined that the Board denied accommodations to qualified individuals with disabilities despite the fact that the preponderance of the evidence (as provided by both the applicant and the Board) established that the accommodations were necessary to provide the individual with a disability an equal opportunity to demonstrate the skills, knowledge, and achievement that the bar examination is intended to measure. Denial of such accommodations without provision of competent evidence from a qualified expert to refute the evidence provided by the applicant violated both the substantive and procedural requirements of title II. In these cases, the Board followed the policy found to be unlawful in D'Amico; it "chose not to challenge the medical evidence offered to support plaintiff's request but relied instead on its own so-called 'expertise' in the field of 'testing' to dictate what they believe was 'right' for plaintiff." 813 F. Supp. at 223.

XX

XX originally requested accommodation for the July 1991 examination. She failed that examination and repeated it in February 1992, with the same accommodations that the Board had provided in 1991: an additional two hours per session (one and two-thirds time) over the standard two days, plus a separate room and permission to bring food into the examination room. She failed the February 1992 examination and requested additional accommodations for the July 1992 examination. In support of her request, she submitted the documentation provided with the 1991 request.

The documentation submitted in 1991 includes a letter from a neurosurgeon dated September 19, 1989, stating that XX had "an abnormal tangle of blood vessels" in "an extremely delicate part of her brain" and "is at great danger for further hemorrhages, which could possibly be fatal." Because the lesion was not surgically accessible, the neurosurgeon recommended that she undergo radiosurgery at the University of Pennsylvania or in Stockholm, Sweden, the only two places in the world that it was available at that time. The neurosurgeon stated that after the treatment, the "arteriovenous malformation then shrivels up over a period of about two years." Also included in the documentation was a letter from the Specialized Neurosurgical Center at the Presbyterian University Hospital of Pittsburgh stating that the treatment was administered on November 21, 1989.

The documentation also included reports from a neuropsychologist on the results of tests administered from November 7 through 30, 1990.(13) The neuropsychologist recommended that essay tests "should be given under untimed conditions" and expressed hope that XX would be provided with "a bar examination which can be administered under conditions which will not penalize her for her selective cognitive impairments."

XX's letter requesting accommodation for the July 1992 examination stated that the accommodations given on the previous examinations had not been adequate because "the length of time spent testing each day, 10.5 hrs., is causing me to become ill. I had seizures on each day of the February [1992] exam."(14) She therefore requested that the test be given over a four day period, with three additional hours per session (double time) and rest periods as needed. The letter also asked the Board to "let [her] know if additional information is needed."

In addition to the information provided by the applicant, the file includes a letter dated May 19, 1992 from (apparently - the letter is unsigned) the Board's Executive Secretary to its Chairman, "enclosing copies of a new request for more extensions ... and part of the documentation that was provided by the candidate in support of her previous request." The letter describes the accommodations previously provided and the request for additional time and testing days, and concludes, "Please give me a buzz when you have looked this over." A handwritten note on the letter says "Private Room -- 2 hours per session, food and drink." There is no indication of any other effort to evaluate the request, and no explanation given for the decision. A

June 25, 1992 letter to XX from Mr. Fuller offers the same accommodations that were provided for the February 1992 examination and states that "[t]he Board has considered your request and determined that we cannot exceed that which was previously provided to you." There is no other medical information in the file. XX did not take the July 1992 examination.

XX

XX submitted a letter from his physician confirming that he is blind in the left eye and that his vision in the right eye fluctuates from 20/200 to 20/400, with a visual field of less than 10 degrees. The letter also stated that on good days, XX may see well enough to read for half an hour to two to three hours. XX requested double time and rest periods "so that I lessen the likelihood of my vision collapsing during the time the examination is taken." The Board did not respond to his offer to provide additional information, if needed, and there is no other medical information in the file.

The Board initially agreed to allow him to use an amanuensis at his own expense(15) and to provide a private room and a large print copy of the examination. The Board subsequently agreed, following telephone negotiations between XX and Mr. Fuller, to provide additional time, but not to extend the examination beyond the two regularly scheduled days. XX took the July 1992 examination from 7:30 AM to 12:15 PM and 1:00 to 5:45 PM on Tuesday, July 28, 1992 and 7:30 AM to 12 noon and 1:00 to 5:30 PM on Wednesday, July 29, 1992. This amounted to 18½ hours of testing over a 34 hour period, with a 45 minute break the first day, a 13 hour and 45 minute overnight break, and a one-hour break the second day. XX failed the July 1992 examination.

XX

XX is an individual with chronic progressive multiple sclerosis who requested accommodations for the February 1993 examination. He submitted a letter from his physician which said that

He has visual, brainstem, pyramidal, cerebellar, gait, sensory, and sphincter disturbances. He has weakness of his upper and lower limbs. He is mentally and physically slow. He is easily fatigued and needs frequent rest.

He also provided a letter from his law school which said

While at XXXXXXX, XXXXXXX was granted a number of testing accommodations to aid him during exam periods. These accommodations included unlimited time on examinations; adjustments to his testing schedule (e.g. allowing him to take portions of long exams in two sittings scheduled on separate days); and the use of an assistant as a "writer." These accommodations were arranged to permit XXXXXXX the rest periods important to avoiding aggravation of his condition. In addition, because his condition results in loss of muscle control, the physical assistance we provided enabled him to actually write his exams. Without these accommodations I do not believe XXXXXXX would have been able to complete his studies at XXXXXXX.

XX requested a "table seated near a bathroom; a test in large print; extra time to complete my exam; a private room; someone to transcribe my dictated answers to the questions."

There is no record in XXXX file to indicate that Mr. Fuller contacted the Board for consideration of the request for additional testing days or time exceeding time and one-half. There is also no indication that Mr. Fuller or the Board consulted any medical authority concerning the effect of XXXX condition on his ability to take the examination. A handwritten note on his application in the file says "P. Room - Amanuensis - Large print - Offer time & ½." By letter of January 25, 1993, the Board offered to provide a private room, an amanuensis, a large print version of the examination, and an additional one and one-half hours per session for each day of the examination. The hours provided were 7:30 AM to 12:15 PM and 1:00 to 5:45 PM on Tuesday, February 23, and 7:30 AM to 12 noon and 1:00 to 5:30 PM on Wednesday, February 24. This amounted to 18½ hours of testing over a 34 hour period, with a 45 minute break the first day, a 13 hour and 45 minute overnight break, and a one-hour break the second day. XX failed the February examination.

XX

XX sought double time and a separate testing room for the July 1992 examination as an accommodation for her learning disability. In support of her request, she submitted psycho-educational evaluations from April 1989 and April 1992. The 1989 evaluation was done by an educational consultant at the Reading and Learning Disorders Center in Rochester, New York, who administered a number of tests, including the Wide Range Achievement Test, subtest of word recognition; the Peabody Individual Achievement Test, subtest of word recognition; the Peabody Picture Vocabulary Test, Form L; and the Peabody reading comprehension test. Based on the results of these and other tests, the consultant recommended that XX should "have time constraints waived" on "tests that require reading speed and comprehension" and "should not be judged by timed reading tests or tests that require an individual to function within a specific time."

The 1992 evaluation was conducted by Dr. Dewey J. Bayer, a consulting psychologist at the Health Science Center in Buffalo, New York. Dr. Bayer administered the Woodcock Reading Mastery Tests-Revised (WRMT-R), because XX had been told that the Board required that test. He noted, however, that the Woodcock test

is not sensitive to XXXXXX particular disabilities in that it has only minimal timing demands. One might say that it is a test of power rather than speed. XXXXXX problems are more in the area of speed than in power.

Dr. Bayer concluded that XXXX scores on the Woodcock would "support a conclusion that [she] is a competent reader," but that her reading speed is well below average because of "weaknesses in short-term language processing for which she has compensated well, but only by focusing intently on what she reads and thereby sacrificing speed." These comprehension problems did not appear on the WRMT-R because it is not timed. Nevertheless, Dr. Bayer found that "the conclusion is inescapable that XXXX is reading disabled" and should be given special accommodations in timed testing situations.

Prior to the July 1992 examination, the Board requested an opinion from its expert, Dr. Frank Vellutino, Director of the Child Research and Study Center,(16) in Albany. The copy of the letter to Dr. Vellutino in the file has a hand-written note saying --

P/C Frank V. 5/13/92

She should not be considered disabled

The records relating to the July 1992 examination do not contain any other information concerning XXXX learning disability or its effect on her ability to take the examination. The Board denied XXXX request for accommodation for the July 1992 examination, and she did not take the examination at that time.

XX applied to take the February 1993 examination and sought the same accommodations (double time and a separate testing room) that she had previously requested. She submitted the same evaluations that she had submitted for the July examination. She also submitted a letter citing the ADA and the cases filed against the Board by other applicants. The letter did not explicitly threaten litigation, but did indicate that XX was aware of her rights under the statute and that she was willing to exercise them.

The Board again consulted Dr. Frank Vellutino, who had determined that XX "should not be considered disabled" prior to the July examination, and Dr. Vellutino provided a written opinion on January 26, 1993. In the written opinion, Dr. Vellutino referred to the 1989 evaluation, which, unlike the Woodcock Reading Mastery Tests required by the Board, included timed tests. (Because he had not prepared a written opinion prior to the July 1992 examination, there is no evidence on whether he had considered those tests in arriving at his previous conclusion.) For the February 1993 examination, Dr. Vellutino concluded that XX "does have marginal reading skills" and "would be encumbered under time conditions compared to those who have less marginal skills." He therefore recommended giving XX additional time on the examination. Thus, after a thorough examination of the documentation submitted by XX for the July 1992 examination, the Board's own expert concluded that she would not have an equal opportunity on the examination without accommodation.

In response to Dr. Vellutino's January 1993 opinion, the Board provided XX a private room and double time for the February examination (but noted that those accommodations would be provided for that examination only and did not "constitute a commitment" for future examinations). Also, the Board did not allow the double time to be used on additional testing days. XXXX testing times, therefore, were 7:00 AM to 1:30 PM and 2:30 to 9:00 PM on Tuesday, February 23, and 7:00 AM to 1:00 PM and 2:00 to 8:00 PM on Wednesday, February 24. The total testing time was 25 hours in a 37 hour period, allowing two, one-hour meal breaks and a ten hour overnight break. XX failed the February examination.

The Department consulted Dr. Bayer about his experiences with the Board. He volunteered that he had learned that XX was allowed double time on the February 1993 examination, but required to take the examination in two days. He stated that such extended hours of testing would inevitably have an adverse effect on the results and that, regardless of disability, taking a test for twelve hours in one day is not equivalent to taking the same test for six hours on two consecutive days. Thus, even after concluding that XX was an individual with a disability entitled to accommodation, the Board failed to provide testing conditions that gave XX an equal opportunity to demonstrate the legal knowledge and legal reasoning skills that the examination purports to measure.

XX

XX took and failed the examination in February 1985, July 1985, February 1986, July 1986, and July 1987 without requesting any accommodation. In February 1993, she reapplied, requesting, on the basis of her disability, "bipolar disorder (manic depression)," "relaxed time requirements, private or semi-private testing location, nearness to lighting and restrooms, proctors who do not talk during the Exam and who provide materials readily." In support of her request she submitted a one-page letter from her psychiatrist, Dr. Jacob Harris, of the Harris Psychiatric/Counseling Group, who confirmed the diagnosis and supported "the accommodations requested by" XX. The letter also said --

This condition in no way affects her intelligence. She is diligent about taking her medication and is alert to increasing or decreasing the medication as her condition warrants. ... She requires a relaxed time management as her thinking and writing processes slow down under stress.

I strongly support your consideration for her special needs in this testing (stress) situation.

The letter also said that the disorder "can be triggered by certain levels of stress" and that XXXXX takes Lithium plus Stelazine "as needed if disturbing thoughts arise. These thoughts, too, are kicked off by extra stress." The Board did not contact Dr. Harris or request additional documentation from the candidate.

Mr. Fuller sent the psychiatrist's letter to a psychologist at the Phobia and Anxiety Disorders Clinic at the University at Albany, State University of New York, and requested "an evaluation of the documentation provided as well as your opinion as to whether the requested accommodations are reasonably related to the claim of manic depressive disorder." The psychologist responded by telephone. On January 21, 1993, Mr. Fuller described his report in a letter to the members of the Board as follows:

In the case of XXXX, Dr. Brown indicates that Lithium is commonly prescribed for manic depressives and that the dosage that she takes is relatively high. The presence of the second drug, Stelazine, which is an anti-psychotic medication for the disturbing thoughts would seem to indicate that the Lithium is not doing the job. He further added that distractibility is often a factor in the case of manic depressives.

Mr. Fuller's letter concludes, "Where do we go from here?"(17)

The Department consulted another expert, Dr. Martin Allen, a clinical professor of psychiatry at Georgetown University Medical School, who stated that it is not appropriate to consult a psychologist for an opinion on an individual who is taking medication; an opinion from someone who is an expert in the field for which the medication is given, in this case, a psychiatrist, would be required. He also indicated that XXXXX would be vulnerable to stress because of her illness, and that some additional time should have been allowed. Dr. Harris, XXXX psychiatrist, agreed that a psychologist is not an appropriate expert for evaluating bipolar disorder.

On January 26, 1993, Mr. Fuller advised XX that

The Board has considered the documentation that you have provided, and has consulted with an expert in the field. Based on that documentation and expert advice, and after consideration of the nature and purpose of the examination, the Board has concluded that the accommodations you have requested are not reasonable. Your request for accommodations is, accordingly, denied.

The letter contains no mention of the right to appeal.

Although the Board's own expert confirmed that XX had a bipolar disorder, that the disorder might result in "distractibility," and that some accommodation for distractibility would be appropriate, the Board refused to provide any accommodation.

The refusal to provide any accommodation is particularly striking because some of the accommodations requested are the type that the Board has provided to other applicants without question in response to similar requests. For example, one of XXXX requests was "nearness to ... restrooms." The Board rejected this request without making any inquiry into the basis for the request or its relationship to the disability. According to Dr. Harris, no one connected with the Board ever contacted him for additional information, but, if asked, he would have said that the request for bathroom access was based on frequent urination, which is a side effect of XXXX medication.(18)

In contrast, the Board provided a special room "in close proximity to restrooms" and an additional one-half hour per session (one and one-sixth of the standard time) for XX, who took the examination in July 1992. XX had submitted a request(19) for access to a restroom and extra time to make up for time lost due to frequent urination because she was seven months pregnant at the time of the examination. The request was supported by a letter from her obstetrician. Because pregnancy is not a disability under the ADA, XX was an individual without a disability who was granted accommodations (special seating and extra time) that were denied to XX, who is an individual with a disability and was similarly situated to XX in her need for restroom access and extra time.

XX, who took the examination in February 1992 and February 1993, also requested restroom access and additional time because of a need to urinate frequently due to "urinary problems" (confirmed by a letter from a physician). He was also provided special seating and an additional one-half hour per session, although there is not sufficient information in the file to determine whether the "urinary problems" would be considered a disability under the ADA.

The Board also denied XXXX request for a private or semi-private testing room. In contrast, it granted a request for special seating for the July 1992 examination for XX, on the basis of a note from a physician stating that XX was wearing "a long leg cast due to a torn Achilles tendon." The Board also provided restroom access for XX, although it was not specifically requested. There is no information in the file to indicate that XX was an individual with a disability, as defined in the ADA. Temporary conditions, such as pregnancy or a torn Achilles tendon, are generally not considered disabilities, unless their duration is expected to be substantial. In the cases of XX and XX, although they may have been "impaired" at the time of the examination, they had the option of taking the examination at a later time, an option not available to XX because her disability has no similar time limitation.

XX failed the February 1993 examination.

Attachment B New York Board of Law Examiners VICTIMS OF DISCRIMINATION

1. In addition to the discriminatory policies and practices already identified, the Department may want to review the Board's policies and practices for the scoring of examinations and certification of individuals with disabilities who pass the examination.

2. Programs and activities of State and local governments that are recipients of Federal financial assistance from one or more Federal funding agencies are also covered by section 504, which prohibits discrimination on the basis of disability in federally assisted programs and activities.

3. 28 C.F.R. § 35.106.

4. Ms. Fried's letter of July 21 also objected to the references in the Department's proposed letter to section 309 of the ADA (42 U.S.C. § 12189) on the ground that title III of the ADA does not apply to the Board.

5. Millman, Mehrens, and Sackett, An Evaluation of the

New York State Bar Examination, a study commissioned by the

New York State Court of Appeals, Court of Appeals Hall,

20 Eagle St., Albany, NY 12207, May, 1993.

6. Id. at ES-3.

7. Id. at 9-6 to 9-9.

8. Id. at 9-8.

9. Actually, the Board provides an additional one and one-half hours for each session of the examination. The Multistate examination is given in two, three-hour sessions, but the

New York portion consists of two, three-hour and fifteen minute sessions, so the additional one and one-half hours are actually less than "time and one half" for the New York portion.

10. The Board's response to the Department's data request stated that it had allowed more than time and one-half and/or more than two days for certain candidates for the February and July 1992 examinations "[i]n connection with litigation and threatened litigation."

11. Applicants are identified herein by initials. A list of the full names is attached as Attachment B.

12. Section 309 of the ADA applies to "any person" that offers licensing examinations. 42 U.S.C. § 12189.

13. The tests administered were: Wechsler Adult Intelligence Scale - Revised; Halsted Neuropsychologic Battery for Adults; Reitan-Klove Examination of Sensory Imperception; Reitan-Harris Lateral Dominance Examination, Including Smedley Hand Dynamometer; Reitan-Heinneman Aphasia Screening Test; Wide Range Achievement Tests, Subtests: Reading, Spelling, Arithmetic; Boston Parietal Lobe Battery, Subtests: Right-Left Orientation, Map Orientation; Benton, et al., Judgment of Line Orientation; Benton, et al., Visual Form Discrimination; Benton, et al., Facial Recognition Test; Trail Making Test, Parts A and B; Luria's Sequential Praxis Task; Luria's Posture Praxis Task; Luria's Bimanual Praxis Task Luria's Competing Programs Task; Purdue Pegboard; Bender's Reverse Seriation Tasks; Boston Diagnostic Aphasia Examination Subtests: Verbal Fluency/Animal Naming, Reading Sentences and Paragraphs, Complex Ideation Material; Boston Naming Test; Raven's Progressive Matrices; Wechsier Memory Scale - Revised; Warrington Recognition Memory Test and Words and Faces; Benton's Revised Visual Retention Test.

14. Despite these difficulties, XXXX score on the February 1992 examination was 655, only five points below the passing score.

15. Mr. Fuller's letter of June 9, 1992, said that the applicant would be responsible for retaining and compensating the amanuensis. On July 14, Mr. Fuller sent a second letter agreeing to provide the amanuensis, or to pay for an amanuensis selected by the applicant.

16. Dr. Bayer, the psychologist who administered the Woodcock to XX, stated that the Woodcock is used to diagnose learning disabilities in children and is not appropriate for adults because adults with learning disabilities have learned to compensate for weaknesses in the areas measured by the Woodcock. He stated that psychologists who work exclusively with children may not be familiar with learning disabilities in adults and, therefore, may not be qualified to diagnose adults with learning disabilities.

17. According to the Board's response to our data request, Mr. Fuller does not need the Board's approval for requests that do not exceed time and one-half within the two standard days.

18. Because the Board's expert was a psychologist, not licensed to prescribe medication, he would not be required to be familiar with the side effects of psychoactive medication.

19. The request was submitted on July 14, two weeks before the examination, and, therefore, was untimely under the Board's rules. >

Updated August 6, 2015

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