US Department of Justice Civil Rights Division - Letter - lofc028

8/14/2019 US Department of Justice Civil Rights Division - Letter - lofc028

http://slidepdf.com/reader/full/us-department-of-justice-civil-rights-division-letter-lofc028 1/40

JAN 13 1994

XXXXXXXXXXXXXXXX

Mr. James T. FullerExecutive SecretaryNew York State Board of Law Examiners

7 Executive Center DriveAlbany, New York 12203-5148

Dear Mr. Fuller:

This letter constitutes the Department of Justice's (theDepartment) Letter of Findings with respect to the allegationsreceived by this office concerning violations of title II of the Americans with Disabilities Act of 1990 (ADA) by the New YorkState Board of Law Examiners (the Board). Title II prohibitsdiscrimination against qualified individuals with disabilities

on the basis of disability by State and local governments.The allegations concern denial of accommodations requested byindividuals with disabilities for the New York State BarExaminations administered in February and July, 1992 andFebruary 1993.

Title II of the ADA, 42 U.S.C. 12131-12134, prohibitsdiscrimination on the basis of disability against qualifiedindividuals with disabilities by public entities. TheCoordination and Review Section of the Civil Rights Division is

responsible for investigation and resolution of administrativecomplaints alleging violations of title II by components of Stateand local governments in the area of the administration of justice, including courts. 28 C.F.R. 35.190(b)(6). TheDepartment of Justice has authority to conduct investigationswhen it receives a complaint or when it has reason to believethat a public entity subject to its jurisdiction is violatingtitle 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 barexamination that is equal to the opportunity afforded to others.Specifically, the Board has refused to provide qualifiedindividuals with disabilities the accommodations necessary, basedon the nature and severity of their disabilities, to afford theman opportunity to demonstrate the legal knowledge and legal

cc: Records CRS Chrono Friedlander Esbrook KaltenbornKaltenborn.nyb.lof.94

01-00128-2-

reasoning ability that the examination purports to measure thatis equal to the opportunity afforded to others. The Board hasprovided accommodations in some circumstances only afterqualified individuals with disabilities protested the Board'sactions or filed complaints in court or with the Department of Justice. In addition, the Board has failed to cooperate in goodfaith in the Department's investigation.

Although the Department has not had the opportunity toreview the records of all applicants who may have been affectedand, therefore, has not completed its investigation of all of theBoard's policies and practices relevant to this matter,1 theDepartment has determined that the Board has engaged in, andcontinues to engage in, a number of practices that violate titleII and the Department's regulation implementing title II, 28C.F.R. pt. 35. In addition, the Department has determined, basedon the Board's continued refusal to allow the Department accessto its records and its continued resistance to inquiries that arenot directly related to the complaint originally received by thisoffice in June 1992, that the Department is unable to resolvethis matter informally. Accordingly, the Department is issuingthis Letter of Findings as provided in 28 C.F.R. § 35.172.

Pursuant to 28 C.F.R. 35.172(a)(3), the Department ishereby informing the Board that the Department is prepared toenter into negotiations with the Board in order to securecompliance 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 thenegotiations are unsuccessful, we will refer the matter to theappropriate office of the Department with a recommendation thatit promptly initiate litigation as provided in 28 C.F.R.§ 35.174.

APPLICABLE LAW

The Americans with Disabilities Act (ADA), enacted onJuly 26, 1990, provides comprehensive civil rights protections toindividuals with disabilities in the areas of employment, publicaccommodations, State and local government services, andtelecommunications. Subtitle A of title II of the ADA applies toall programs, services, and activities of State and local

governments.

1/In addition to the discriminatory policies and practicesalready identified, the Department may want to review the Board'spolicies and practices for the scoring of examinations andcertification of individuals with disabilities who pass theexamination.

01-00129

-3-Section 202 of the ADA (42 U.S.C. § 12132) provides that --

Subject to the provisions of this title, no qualifiedindividual with a disability shall, by reason of suchdisability, be excluded from participation in or be deniedthe benefits of the services, programs, or activities of apublic entity, or be subjected to discrimination by any suchentity.

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

an individual with a disability who, with or withoutreasonable modifications to rules, policies, or practices,



the removal of architectural, communication, ortransportation barriers, or the provision of auxiliary aidsand services, meets the essential eligibility requirementsfor the receipt of services or the participation in programsor activities provided by a public entity.

42 U.S.C. § 12131 (2).

With respect to licensing, a "qualified" individual with adisability is one who meets the "essential eligibilityrequirements for the receipt of services or the participation inprograms or activities provided by a public entity." 28 C.F.R.§ 35.104. The Board does not dispute that individuals who haverequested accommodations are "qualified" to take the bar

examination. While a licensing Board may establish requirementsin addition to its requirements for a written examination, itmust establish that any such requirements that exclude otherwisequalified individuals with disabilities are "essential." It maynot, however, use an examination to exclude individuals withdisabilities by administering the examination in a manner thatdenies those individuals an equal opportunity to demonstrate theknowledge and abilities that the test purports to measure inindividuals without disabilities.

Section 35.130(a) of the Department of Justice's regulationimplementing title II (28 C.F.R. pt. 35) restates the generalrequirement of section 202 of the statute. The specificrequirements of the regulation apply this general principle toparticular situations. Section 35.130(b)(6) provides that apublic entity may not administer a licensing or certificationprogram in a manner that subjects qualified individuals withdisabilities to discrimination on the basis of disability. Thus,the nondiscrimination obligations are specifically applied to theBoard's function of licensing attorneys.

Section 35.130(b)(1)(ii) provides that a public entity maynot provide a qualified individual with a disability anopportunity to participate that is not equal to that afforded



01-00130-4-

others. Denial of necessary accommodations violates thisrequirement. Compelling an applicant with a disability to takeor threaten legal action in order to obtain a necessaryaccommodation also violates this requirement.

Section 35.130(b)(1)(iii) requires a public entity toprovide qualified individuals with disabilities an "equalopportunity to obtain the same result" from its programs andactivities as the opportunity provided to individuals withoutdisabilities. With respect to administration of the barexamination, an "equal opportunity to obtain the same result" is

an equal opportunity to demonstrate the skills, knowledge, andachievement that the bar examination is intended to measure.

Section 35.130(b)(1)(vii) provides that a public entity maynot otherwise limit a qualified individual with a disability inthe enjoyment of any right, privilege, advantage, or opportunityprovided to others. Refusing to provide an accommodationrequired by the statute unless an applicant with a disabilitytakes or threatens to take legal action also violates thisrequirement.

Section 35.130(b)(7) requires a public entity to makereasonable modifications in policies, practices, or procedures,when the modifications are necessary to avoid discrimination onthe basis of disability, i.e., to provide a qualified individualwith a disability (as defined in 28 C.F.R. § 35.104) an equalopportunity to demonstrate the skills, knowledge, and achievementthat the bar examination is intended to measure. Modificationsmust be provided unless the public entity can demonstrate thatthe requested modification, or an equally effective alternativemodification, would fundamentally alter the service, program, oractivity.

The regulation also requires a public entity to takeappropriate steps to ensure that communications with individualswith disabilities are as effective as communications with others,unless the steps would result in a fundamental alteration or inundue financial and administrative burdens. 28 C.F.R. § 35.164.28 C.F.R. § 35.160(a). When an auxiliary aid or service isnecessary to afford an individual with a disability an equalopportunity to participate in, and enjoy the benefits of, a



service, program, or activity conducted by a public entity, thepublic 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 determiningwhat type of auxiliary aid or service is necessary, a publicentity must give primary consideration to the requests of theindividual with a disability. 28 C.F.R. 35.160(b)(2).

Also, section 204(b) of the ADA requires that theDepartment's regulation implementing subtitle A of title II be

01-00131

-5-

consistent with the ADA. Thus, interpretation of the title IIregulation must be consistent with title III of the ADA,including section 309, which provides that --

Any person that offers examinations or courses related toapplications, licensing, certification, or credentialing for

secondary or postsecondary education, professional, or tradepurposes shall offer such examinations or courses in a placeand manner accessible to persons with disabilities or offeralternative accessible arrangements for such individuals.

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

In addition, because title II of the ADA essentially extendsthe nondiscrimination mandate of section 504 of theRehabilitation Act of 1973, as amended (29 U.S.C. § 794) (section504)2 to the programs of those State and local governments thatdo not receive Federal financial assistance, the interpretationsof section 504 may be referred to in interpreting title II. TheDepartment of Education's regulation implementing section 504 forits federally assisted programs and activities, which includesspecific 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 IIIregulation provide that tests and examinations must beadministered to individuals with disabilities in a manner thatensures that

the examination results accurately reflect the individualsaptitude or achievement level or whatever other factor theexamination purports to measure, rather than reflecting theindividuals impaired sensory, manual, or speaking skills(except where those skills are the factors that theexamination 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 theBoard's obligations in administering its examination to qualifiedindividuals with disabilities. The Board must inform applicants

2 Programs and activities of State and local governmentsthat are recipients of Federal financial assistance from one ormore Federal funding agencies are also covered by section 504,which prohibits discrimination on the basis of disability in

federally assisted programs and activities.

01-00132

-6-of its obligation to provide appropriate accommodations and mustgive them an opportunity to provide advance notice of their needfor accommodations. The Board 'may require applicants to submitappropriate documentation, at the applicants' expense, of theirdisabilities and of any modifications or aids that would berequired, provided that the requests for documentation arereasonable and limited to the need for the modification or aidrequested. Appropriate documentation might include a letter froma physician or other professional, or evidence of a priordiagnosis or accommodation, such as eligibility for a specialeducation program. The applicant may be required to bear thecost of providing such documentation, but the entity



administering the examination cannot charge the applicant for thecost of any modifications or auxiliary aids, such as amanuenses,provided for the examination.

When an applicant requests accommodations and submitssupporting documentation, the Board may review the documentationto determine whether the applicant is a qualified individual witha disability (as defined in 28 C.F.R. § 35.104). If theapplicant is a qualified individual with a disability, the Boardmust determine what accommodations are necessary to ensure thatthe applicant has an equal opportunity to demonstrate the skills,knowledge, and achievement that the bar examination is intendedto measure. The applicant has the burden of proving that he orshe is an individual with a disability, but, if the applicant

produces documentation from a qualified expert as to theexistence of the disability and the need for accommodationsbecause of the disability, the Board must provide competentevidence from a qualified expert to refute the applicant'sdocumentation. As explained by the court in D'Amico v. New YorkState Board of Law Examiners, 813 F. Supp. 217 at 223 (1993),

the Board must understand that they may not always bein the best position to determine what is a reasonableaccommodation for an applicant who has a disability

that can only be diagnosed and treated by a physicianwith significant experience and expertise. The Board'sopinion as to what is "reasonable" for a particularapplicant can be given very little weight when theBoard has no knowledge of the disability or disease, noexpertise in its treatment, and no ability to makedeterminations about the physical capabilities of oneafflicted with the disability or disease.

Where there are factual questions about the nature andextent of the accommodation required, the Board must determine,on a case-by-case basis, what accommodations will result in anequal opportunity for the particular individual with a

3 28 C.F.R. § 35.106.

01-00133



-7-

disability. This determination must also be based on competentexpert evidence where the Board and the applicant cannot agree onthe 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, andsection 505, in turn, incorporates by reference the remedies,procedures, and rights set forth in title VI of the Civil RightsAct of 1964 (42 U.S.C. 2000d to 2000d-4a). Title VI regulations

provide for access to records necessary for investigations. See28 C.F.R. § 42.406. Therefore, title II regulations incorporatethese title VI procedures.

FINDINGS OF FACT

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

CONCLUSIONS OF LAW

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

2. The New York State bar examination is a program oractivity 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 requiringapplicants to submit requests for accommodations 90 days beforethe date of the examinations, while permitting applicants who didnot request accommodations to file up to 30 days before theexamination, 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 whorequested accommodations for the February 1992 examination filetheir requests earlier than the filing deadline for otherapplicants, 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 XXX , XXX , XXX , XXX , XXX , XXX , XXX , and XXX ,documentation of the need for extra time was provided by theapplicant, but the Board refused the requests without justification based on medical or professional judgment. TheBoard'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 withdisabilities an opportunity to demonstrate the legal knowledgeand legal reasoning skills that the examination purports to

01-00134

-8-measure that was equal to the opportunity provided to individualswithout disabilities, was a violation of 28 C.F.R. §§ 35.130(a)and 35.130(b) (6) and (7).

6. In the cases of XXX , XXX , XXX , XXX , XXX , XXX , XXX , XXX , and

XXX , by refusing to extend the testing period beyond the tworegularly scheduled days, the Board has provided alternativetesting conditions for individuals with disabilities that are notcomparable to the conditions provided for individuals withoutdisabilities. The conditions provided for individuals withdisabilities are substantially inferior to the conditionsprovided for individuals without disabilities and do not provideindividuals with disabilities an opportunity to demonstrate thelegal knowledge and legal reasoning skills that the examinationpurports to measure that is equal to the opportunity provided toindividuals without disabilities. These actions violate 28C.F.R. § 35.130(a); (b)(1)(ii); (iii); and (vii); and (b)(6) and(7).

7. In the cases of XXX , XXX , XXX , and XXX ,the Board providedthe requested accommodation only after individuals withdisabilities undertook or threatened legal action in order toobtain the accommodations that the individuals' documentationestablished were necessary to provide such individuals withdisabilities an opportunity to demonstrate the legal knowledgeand legal reasoning skills that the examination purports to



measure that is equal to the opportunity provided to individualswithout disabilities. These actions violate 28 C.F.R.§ 35.130(b)(1)(Vii).

8. In the cases of XXX , XXX , XXX , XXX , XXX , XXX , XXX , XXX , andXXX, the Board did not conduct individualized assessments todetermine the modifications required to ensure that theexamination accurately reflected the legal knowledge and legalreasoning skills of each particular individual with a disabilityrequesting accommodations.

With respect to individuals with physical disabilities,including vision impairments ( XXX and XXX ) , multiple sclerosis( XXX ) , and quadriplegia ( XXX ), the Board rejected requests based

on documentation from competent medical experts, without requestingor obtaining even informal medical opinions concerning theapplicant's condition or the effect of the condition on theapplicant's testing requirements.

With respect to mental impairments ( XXX ) and learningdisabilities ( XXX , XXX , and XXX ), the Board relied on informalunwritten opinions from consultants who had not examined theapplicant and who nay not be experts on the applicant'sparticular condition. In the case of XXX , the Board denied all

accommodations requested even though the request was supported bythe Board's own expert, and even though the Board provided

01-00135-9-

accommodation to individuals who were similarly situated but didnot have a disability.

In each of these cases, the applicant provided supportingdocumentation to establish that he or she had a disability andrequired accommodations, and the Board denied the accommodationsrequested without an adequate factual basis for determining thatthe accommodations were not required. These actions violated 28C.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 requiredthat applicants with disabilities who needed amanuenses or otheraides or assistants to take the examination to provide andcompensate the amanuensis, aide, or assistant. This actionviolated 28 C.F.R. § 35.130(f).

REMEDIES

In order to resolve this case, it will be necessary to enterinto a formal written voluntary compliance agreement that willprovide appropriate remedies for the victims of pastdiscrimination and will ensure that the types of violations thatoccurred in the past will not be repeated. Accordingly, theDepartment 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 foraccommodation, including standards and procedures fordetermining whether the applicant is a qualifiedindividual with a disability, and standards andprocedures for making an individualized determinationof the accommodations necessary to provide eachqualified individual with a disability an opportunity

to participate in and benefit from the bar examinationthat is equal to the opportunity afforded to others.

2. Compensation for victims of discrimination forexaminations administered since January 26, 1992,including those identified above and all otherssimilarly situated. This will require the provision of the files for all applicants who requestedaccommodations for examinations administered afterJanuary 26, 1992.

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

The Department remains open to discussing these issues andexploring any remedies that could lead to a satisfactory



01-00136-10-

resolution. In that regard, Thomas Esbrook, the investigatorassigned to the case, (202) 307-2940, will be in contact with youin the near future to ascertain whether the Board is interestedin entering into voluntary compliance negotiations. If the Boarddoes not wish to negotiate, or if negotiations are unsuccessful,we are required by 28 C.F.R. 35.174 to refer this matter to thelitigating unit, the Public Access Section, for appropriateaction.

The Department would appreciate your prompt attention to

this letter.

Sincerely,

James P. TurnerActing Assistant Attorney General

Civil Rights Division

cc: Ellen J. FriedAssistant Attorney GeneralAttachment ANew York Board of Law Examiners

FINDINGS OF FACT

1. ACCESS TO RECORDS

As set out in our letter of May 25, 1993, in June 1992, theDepartment received two complaints alleging violations of titleII of the ADA (42 U.S.C. §§ 12131-12134) by the New York Board of Law Examiners. The complainants, Robert Pipia and Scott Rippa,alleged that they were denied certain accommodations that theyrequested for the New York State Bar Examination, scheduled forJuly 26 and 29, 1992. Both complainants alleged that theaccommodations they requested were necessary, based on the natureand severity of their disabilities, and that they had provided



sufficient medical and other justification to support theirrequests.

The Department expedited its investigation of thesecomplaints because of the imminence of the bar examination. Oneof the complainants ( XXX ) filed a private suit againstthe Board, and settled out of court when the Board agreed toprovide the accommodation he had requested. The Departmentcontacted the Board by telephone on July 15, 1992, and the Boardagreed to provide the accommodation requested by the othercomplainant for the July 1992 examination and to cooperate in ouradministrative investigation. On August 21, we sent the Board awritten data request that included, inter alia, a request for anon-site review of records in order to obtain the information

covered by the following two items:

1. Identify all applicants who identified adisability and applied for special testing accommodationsfor the February and July 1992 administrations of theNew York State Bar Examination.

2. Either submit copies, or make available for reviewand copying onsite, all relevant case files for theindividuals identified in item 5, above.

On September 25, the Board responded to the data requestwith a letter raising concerns about our jurisdiction to conductan investigation and about the confidentiality of recordsconcerning applicants. On November 10, 1992, we responded tothese confidentiality concerns by proposing the followingstipulation:

All papers, records, and documents concerning theapplication or examination of any person for admission. as anattorney and counsellor at law in the State of New Yorkreleased to the Department of Justice in the course of ourinvestigation shall be treated as private and confidential

01-00138-2-

by the Department of Justice and all of its agents and



employees. All such papers, records, and documents, and anyother information provided by the Board shall be usedexclusively for law enforcement purposes and shall not bedisclosed except where necessary in formal enforcementproceedings or where otherwise required by law. If aFreedom of Information Ac-E or Privacy Act request is filedfor information obtained from the Board, the Department of Justice will react or otherwise obscure the name or namesOf individuals, personally identifying information, medicalinformation, and any other information of which disclosurewould constitute a clearly unwarranted invasion of personalprivacy.

On December 22, 1992, the Board responded that it was not

satisfied with the stipulation, and suggested that the Departmentapply to the Presiding Justice of the Appellate Division inAlbany for release of the records in accordance with Section90.10 of the New York Judiciary Law. on December 31, we advisedthe Board that we considered the stipulation offered in ourNovember 10 letter to be adequate to meet the Board's concernsabout privacy, and that any procedures the Board considerednecessary under State law requirements to enable it to respond toour data request were the responsibility of the Board. Wefurther requested a response to those items in our original data

request that did not involve review of individual applicantfiles.

In the Board's letter of April 30, 1993, the BoardConfirmed that it had applied to the State Appellate Division for therelease of confidential files, that the Administrative Board of the Unified Court System had recently determined that the Boardcould release the information to the Department "so long as theconsent of the individual applicants (is) first obtained," andthat it was in the process of contacting those individuals "in asexpeditious a manner as possible."

On May 25, 1993, the Department advised the Board that, inview of the fact that the Board was scheduled to administeranother bar examination in July 1993, the Department haddetermined that further delay in concluding our investigationwould be unacceptable. Our letter stated that, unless the Boardagreed to schedule an on-site investigation, to include allrelevant case files for individuals who have sought, or areseeking, special testing accommodations for examinationsadministered after January 26, 1992, and to begin no later than



ten days after its receipt of the letter, ie., by June 4, 1993,the Department would have no choice but to issue a "Letter of Findings" determining that the Board is in noncompliance withtitle II of the ADA.

01-00139-3-

On June 2, the Board responded by agreeing to allow the

Department to review the files of the applicants who had returnedtheir release forms. The Board refused, however, to allow accessto the files of individuals who denied consent to the release of their files or whose responses had not been received. TheDepartment accepted the offer of partial access, but advised theBoard that our position concerning our authority to review all of the documents the Department requested remained unchanged. onJune 4, the Board provided the files of 34 applicants forinspection and copying, approximately 10% of the 322 applicantswho requested accommodations for the February and July 1992 and

the February 1993 examinations.

On June 25, the Board made available an additional 26 filesof individuals who consented to release their records to theDepartment for this investigation. At that time, James T.Fuller, Executive Secretary of the Board, stated that 76 peoplehad given consent for release of their records. Mr. Fuller alsostated that the Board would not provide the files of anadditional 17 individuals, who had consented to their release,for the following reasons: the Board has taken the position thatit is not liable for any actions prior to the effective date of title II, January 26, 1992. The files of fourteen individualswho requested testing accommodations prior to 1/26/92, and whoprovided their consent for release of their files, were thereforenot provided. The Board also contested DOJ's authority toinclude the July 1993 exam as part of the investigation butindicated that a letter would be forthcoming fromMs. Ellen Fried, Board attorney, explaining its position.

Ms. Fried's letter of July 21, 1993, stated that anadditional 16 files were then available and that the reason these



files were not provided earlier is that they "were either beingused by the Board in connection with the July 1993 exam or thestaff had not had sufficient time to prepare the file." Theletter does not mention the other 246 files, and the Departmentunderstands the Board's position to be that those files will notbe made available for the Department's review.

The remainder of the July 21 letter discusses the Board'sproposed mailing to applicants who requested accommodation forthe 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 thisletter to the applicants. In response to that invitation, theDepartment's letter of June 3, 1993, proposed inclusion of a

statement of the Department's position with respect to theconfidentiality of the records. Ms. Fried's response on June 23stated that, rather than including the statement in its own .letter, the Board was requesting that the Department provide acopy of the statement on Department of Justice letterhead forinclusion in the mailing. Ms. Fried's letter also stated that

01-00140-4-

the Board intended to state in its letter that "it expresses noopinion as to the efficacy or the enforceability of theDepartment's commitments as to the confidentiality of theinformation contained in the files provided to the Department inconnection with post-investigation Freedom of Information Act(`FOIA') requests."

The Department determined that providing a copy of theproposed statement on Department of Justice letterhead, withoutadditional explanation, could be construed as implying agreementwith the Board's position that the applicants' releases could berequired or as condoning the Board's disclaimer. Thisdetermination was based, in part, on the assertion, inMs. Fried's letter of June 2, that the Department's suggestedinclusion of the names and telephone numbers of Departmentcontacts in the Board's earlier mailing was inconsistent with the



Department's position that consent of the applicants was notrequired. The Department therefore responded on July 1 with aproposed letter to the applicants on Department letterhead forinclusion in the mailing. Ms. Fried's letter of July 21 objectedto the Department's proposed letter, on the grounds that it"solicits complaints and advises the applicants of their right tosue."1 Ms. Fried's letter did not address the Department'sexplanation for its rejection of the Board's previous offer.While the Department understood the Board's objection tonotifying applicants of their rights under the statute, it didnot concur with the Board's position. The Department did notattempt to dictate the contents of the Board's letter to itsapplicants and declined the Board's offer to assist theDepartment in preparing a letter acceptable to the Board. The

Board subsequently decided to include the Department's letter inits mailing to applicants who took the July 1993 examination.

II. THE EXAMINATION

The New York State Bar Examination is administered twiceeach year, in February and July. It is given in two parts overtwo days. The first day (Tuesday of the week the test is given)is devoted to the Few 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 providedby the National Conference of Bar Examiners. Under the standardprocedures, the New York portion of the examination is given from9:00 AM to 12:15 PM and 1:30 to 4:45 PM on Tuesday and themultistate is given from 9:00 AM to 12 noon and 1:30 to 4:30 PM

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

1-00141-5-

on Wednesday of the week the test is scheduled. These hours areextended for individuals with disabilities who are granted



additional time as an accommodation, but the Board generally doesnot extend the additional hours over additional days.

According to a study commissioned by the New York StateCourt of Appeals,2 the examination is intended to measure legalknowledge and legal reasoning ability.3 The informationavailable did not permit a conclusion on whether the examinationalso measures speed,4 but the panel of experts assembled toassess the content validity of the examination agreed that speedshould not be a major component of the examinations. 5

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 toapplicant records. As described in the Board's response to thatrequest, provision of accommodations for individuals withdisabilities is governed by 6000.4 of the Rules of the Board,which was revised on November 11, 1992. As revised, 6000.4states that the Board will provide accommodations in testingconditions to candidates with disabilities during theadministration of the examination, to the extent suchaccommodations are reasonable, consistent with the nature andpurpose 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 policylimiting the time allowed for individuals with disabilities to amaximum of time and one-half6 and requiring that all

2/Millman, Mehrens, and Sackett, and Evaluation of theNew York State Bar Examination, a' study commissioned by theNew York State Court of Appeals, Court of Appeals Hall,20 Eagle St., Albany, NY 12207, May, 1993.

3/Id. at ES-3.

4/Id. at 9-6 to 9-9.

5/Id. at 9-8.

6/Actually, the Board provides an additional one and one-



half hours for each session of the examination. The Multistateexamination is given in two, three-hour sessions, but the .New York portion consists of two, three-hour and fifteen minutesessions, so the additional one and one-half hours are actuallyless than "time and one half" for the New York portion.

01-00142-6-

examinations be completed within the two regularly scheduledexamination days. Apparently, however, this policy merelyconfirmed the Board's practice that was in effect for theFebruary 1992 examination.

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

expects, in view of considerations such as examinationvalidity and security, that most candidates will sit for the

examination within the standard two-day time frame, theBoard will consider an their merits requests for timeallowances in excess of that time frame and make everyeffort to provide accommodations that are reasonable inlight of the nature and purposes of the examination.

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

B. Application Procedures

Prior to November 1992, according to the Board's writtenresponse to the Department's data request, applicants requestingaccommodations were required to inform the Board of the need foraccommodation and provide documentation of the disability claimedand the relationship of the disability to the requestedaccommodations.

Pursuant to the "new" rule adopted in November 1992, the



examination application packet includes a form for candidates torequest accommodations. The form requires a specific descriptionof the accommodation requested and documentation from thediagnosing professional stating the nature of the disability andthe relationship between the disability and the accommodationrequested. Candidates are also required to submit documentationof the three most recent testing accommodations, if any, providedby schools or other testing authorities. In addition, the Board"may, in its discretion, require the candidate to provideadditional information relating to the disability and/or prioraccommodations, and may also require that the applicant submit toexamination by an expert designated by the Board in connectionwith 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 examinationwill be borne by the applicant unless the Board waives thisrequirement "for good cause."

01-00143

-7-C. Auxiliary Aids and services

The Board has changed its policy with respect to provisionof auxiliary services. Prior to July 14, 1992, the Boardrequired applicants to retain and pay for readers, writers, andamanuenses to assist in taking the examination. This policy waschanged before the July examination. The Board will now providean assistant or will permit the applicant to select theassistant, subject to reasonable restrictions. In either case,the Board now recognizes its responsibility to pay for theassistance needed.

D. Appeals

The November 1992 revision to the Board's rules established



procedures for appealing the denial of a request for anaccommodation. The letters sent to applicants denying theirrequests, however, do not contain an explanation of the reasonsfor 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 foraccommodations 90 days before the date of the examination.Applicants who did not request accommodations were permitted tofile up to 30 days before the examination. This difference indeadlines 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, theBoard's filing deadline for applicants not requestingaccommodations was January 27, 1992, one day after the effectivedate of title II.

F. Other Policies

Although we do not have sufficient information to make afinding with respect to the Board's provision of an accessible

testing location, large print copies of the examination, orsimilar accommodations for individuals with physicaldisabilities, our investigation generally did not reveal evidencethat the Board discriminates in those areas.IV. VICTIMS OF DISCRIMINATION

A. Litigation and administrative complaints

The following qualified individuals with disabilitiesreceived accommodations only after they filed complaints in court

01-00144-8-



or with the Department of Justice. 7 The Department finds that,based on the evidence available to the Board at the time it madeits determination, it is more likely than not that the Board'sdecision, prior to the filing of the complaint, denied theseapplicants accommodations that were necessary to provide them anopportunity to demonstrate the legal knowledge and legalreasoning skills that the examination purports to measure thatwas equal to the opportunity provided to individuals withoutdisabilities. Denial of such accommodations without provision of competent evidence from a Qualified expert to refute the evidenceprovided by the applicant violates both the substantive andprocedural requirements of title II. (See D'Amico, 813 F. Supp.at 223.)

XX8

The Board denied a request from for special arrangementsto take the February 1992 bar examination. provided extensivedocumentation to establish that she had a learning disability andthat the accommodations were necessary to afford her an equalopportunity to successfully complete the examination. The Boardchose not to credit this documentation and determined that wasnot an individual with a disability and, therefore, was not

entitled to accommodation. then filed a private suit againstthe Board ( v. New York Board of Law Examiners,), which was settled when the Board agreed to providethe accommodations requested.

XXXX and XXXX

Two individuals with disabilities, XXX and XXX , filedadministrative complaints with the Department of justice prior tothe administration of the examination on July 28 - 29, 1992. TheBoard did not dispute that complainants XXX and XXX were qualifiedindividuals with disabilities (as defined 28 C.F.R. § 35.104)who were eligible to take the bar examination, and agreed toprovide each complainant with some of the accommodationsrequested.

7/The Board's response to the Department's data requeststated that it had allowed more than time and one-half and/ormore than two days for certain candidates for the February and



July 1992 examinations "(i)n connection with litigation andthreatened litigation."

8/Applicants are identified herein by initials. A list of the full names is attached as Appendix B.

C01-00145-9-

XXX is an individual with a neuromuscular disorder renderinghim functionally quadriplegic with a resulting low threshold forfatigue. In applying to take the examination, XXX requesteddouble time for taking the examination, rest periods, andadditional exam days to allow for the additional testing time andrest periods.

On June 19, 1992, the Board advised XXX that he would begiven time and one-half to complete the test on the tworegularly-scheduled testing days. The Board explained that any

rest breaks XXX required must be Taken within the time framegranted for each test session. XXX subsequently filed suitagainst the Board, and the Board-settled the lawsuit by agreeingto provide the additional testing days and rest periods.

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

XXX provided the Board with extensive documentation of hisdisability, including an expert opinion concerning the specificaccommodations that would be necessary and documents showing thatthese accommodations were previously provided in hisundergraduate and law school education. This documentationsuggests that a minimum adjustment for his disability is one andthree-quarters additional time.

The Board required XXX to take the Woodcock Reading Mastery



Test at his own expense ($500.00) to supplement the documentationsubmitted with his application.

The Board offered XXX an additional one and one-half hoursextension per test session.

After the Board settled the suit filed by XXX the Departmentadvised the Board that it was prepared to find the Board innoncompliance with title II and to recommend that suit be filedagainst the Board pursuant to 28 C.F.R. § 35.174. The Boardsubsequently agreed to provide the full additional time requestedby XXX (one and two-thirds of the standard time, rather than theone and one-half time it had previously agreed to) and tocooperate 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 XXX orthe July 1992 examination, it refused to extend the examination

01-00146-10-

to additional testing days. As a result, XXX was required to takethe examination in four, five-hour sessions on the two regularlyscheduled examination days. XXX failed the July 1992 examination.

XXX

XXX is an individual with a severe visual disability, evenwith corrective lenses, that 'makes reading extremely difficult,and the condition is exacerbated when she reads for extendedperiods of time. She requested and received accommodations forthe July 1992 examination, including a large print exam, aseparate testing room, and permission to bring her own lamp andstraight edge and to write her answers on the test booklets,



rather than on the computer answer sheets. She was alsopermitted additional time to complete the examination (nine hourson the first day and nine and one-half hours on the second day),but she did not request or receive permission to extend the testover more than two days. XXX failed the July 1992 examination.

XXX applied for the February 1993 examination, requestingsimilar accommodations to those provided in July. In addition,on the advice of her physician, she asked to take the exam over afour day period instead of two. The Board granted allaccommodations except the four-day testing period, and XXX filedsuit under titles II and III9 of the ADA seeking a preliminaryinjunction to compel the Board to provide the additional testingdays. XXX, supra, XXX F. Supp. at XXX .

The Board did not dispute that the plaintiff was a qualifiedindividual with a disability and was entitled to accommodationsunder the ADA, but argued that allowing her unlimited time totake the examination within the two regularly scheduled days wassufficient to meet its obligation. The Board agreed that anysecurity issues raised by extending the examination overadditional days could be resolved. in making this decision, theBoard rejected the medical opinion of plaintiff's treatingphysician, but did not consider or produce any medical opinion or

evidence to contradict the recommendation submitted by theplaintiff. The court found that "(w)ithout addressingDr. XXX medical opinions, the Board, by fiat, determinedthat plaintiff Is request was unreasonable and not required."F. Supp. at XXX . The court granted the injunction, finding thatthe Board's decision to disregard the opinion of the plaintiff'streating physician was "unwarranted and ill-advised and (couldnot) withstand scrutiny under the ADA."

9/Section 309 of the ADA applies to "any person" thatoffers licensing examinations. 42 U.S.C. § 12189.

01-00147

-11-



B. Additional victims

In the following cases, we have determined that the Boarddenied accommodations to qualified individuals with disabilitiesdespite the fact that the preponderance of the evidence (asprovided by both the applicant and the Board) established thatthe accommodations were necessary to provide the individual witha disability an equal opportunity to demonstrate the skills,knowledge, and achievement that the bar examination is intendedto measure. Denial of such accommodations without provision of competent evidence from a qualified expert to refute the evidenceprovided by the applicant violated both the substantive andprocedural requirements of title II. In these cases, the Boardfollowed the policy found to be unlawful in D'Amico; it "chose

not to challenge the medical evidence offered to supportplaintiff's request but relied instead on its own so-called'expertise' in the field of `testing' to dictate what theybelieve was 'right' for plaintiff." 813 F. Supp. at 223.

XXX

XXX originally requested accommodation for the July 1991examination. She failed that examination and repeated it in

February 1992, with the same accommodations that the Board hadprovided in 1991: an additional two hours per session (one andtwo-thirds time) over the standard two days, plus a separate roomand permission to bring food into the examination room. shefailed the February 1992 examination and requested additionalaccommodations for the July 1992 examination. in support of herrequest, she submitted the documentation provided with the 1991request.

The documentation submitted in 1991 includes a 1etter from aneurosurgeon dated September 19, 1989, stating that had "anabnormal tangle of blood vessels" in "an extremely delicate partof her brain" and "is at great danger for further hemorrhages,which could possibly be fatal." Because the lesion was notsurgically accessible, the neurosurgeon recommended that sheundergo radiosurgery at the University of Pennsylvania or inStockholm, Sweden, the only two places in the world that it wasavailable at that time. The neurosurgeon stated that after thetreatment, the "arteriovenous malformation then shrivels up overa period of about two years." Also included in the documentationwas a letter from the Specialized Neurosurgical Center at the



Presbyterian University Hospital of Pittsburgh stating that thetreatment was administered on November 21, 1989.

The documentation also included reports from aneuropsychologist on the results of tests administered from

01-00148

-12-November 7 through 30, 1990. 10 The neuropsychologistrecommended that essay tests "should be given under untimedconditions" and expressed hope that XXXX would be provided with"a bar examination which can be administered under conditions whichwill not penalize her for her selective cognitive impairments."

XXX letter requesting accommodation for the July 1992examination stated that the accommodations given on the previous

examinations had not been adequate because "the length of timespent testing each day, 10.5 hrs., is causing me to become ill.I had seizures on each day of the February (1992) exam." 11 Shetherefore requested that the test be given over a four dayperiod, with three additional hours per session (double time) andrest 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 itsChairman, "enclosing copies of a new request for more extensions... and part of the documentation that was provided by thecandidate in support of her previous request." The letterdescribes the accommodations previously provided and the requestfor additional time and testing days, and concludes, "Please giveme a buzz when you have looked this over." A handwritten note onthe letter says "Private Room -- 2 hours per session, food anddrink." There is no indication of any other effort to evaluatethe request, and no explanation given for the decision. A



10 The tests administered were: Wechsler AdultIntelligence Scale - Revised; Halsted Neuropsychologic Batteryfor Adults; Reitan-Klove Examination of Sensory Imperception;Reitan-Harris Lateral Dominance Examination, Including SmedleyHand Dynamometer; Reitan-Heinneman Aphasia Screening Test; WideRange Achievement Tests, Subtests: Reading, Spelling,Arithmetic; Boston Parietal Lobe Battery, Subtests: Right-LeftOrientation, Map Orientation; Benton, et al., Judgment of LineOrientation; Benton, et al., Visual Form Discrimination; Benton,et al., Facial Recognition Test; Trail Making Test, Parts A andB; 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/AnimalNaming, Reading Sentences and Paragraphs, Complex IdeationMaterial; Boston Naming Test; Raven's Progressive Matrices;Wechsier Memory Scale - Revised; Warrington Recognition MemoryTest and Words and Faces; Benton's Revised Visual Retention Test.

11 Despite these difficulties, XXX s score on the February1992 examination was 655, only five points below the passingscore.

01-00149

-13-June 25, 1992 letter to XXX from Mr. Fuller offers the sameaccommodations that were provided for the February 1992examination and states that 11(t)he Board has considered yourrequest and determined that we cannot exceed that which waspreviously provided to you." There is no other medicalinformation in the file. XXX did not take the July 1992examination.

XXX

XXX submitted a letter from his physician confirming that he



is blind in the left eye and that his vision in the right eyefluctuates from 20/200 to 20/400, with a visual field of lessthan 10 degrees. The letter also stated that on good days,may see well enough to read for half an hour to two to threehours. XXX requested double time and rest periods "so that Ilessen the likelihood of my vision collapsing during the time theexamination is taken." The Board did not respond to his offer toprovide additional information, if needed, and there is no othermedical information in the file.

The Board initially agreed to allow him to use an amanuensisat his own expense12 and to provide a private room and a largeprint copy of the examination. The Board subsequently agreed,following telephone negotiations between XXX and Mr. Fuller, to

provide additional time, but not to extend the examination beyondthe two regularly scheduled days. XXX took the July 1992examination from 7:30 AM to 12:15 PM and 1:00 to 5:45 PM onTuesday, July 28, 1992 and 7:30 AM to 12 noon and 1:00 to 5:30 PMon Wednesday, July 29, 1992. This amounted to 18 « hours of testing over a 3 4 hour period, with a 4 5 minute break the firstday, a 13 hour and 45 minute overnight break, and a one-hourbreak the second day. XXX failed the July 1992 examination.

XXX

XXX is an individual with chronic progressive multiplesclerosis who requested accommodations for the February 1993examination. He submitted a letter from his physician which saidthat

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

12/Mr. Fuller's letter of June 9, 1992, said that theapplicant would be responsible for retaining and compensating theamanuensis. On July 14, Mr. Fuller sent a second letter agreeingto provide the amanuensis, or to pay for an amanuensis selectedby the applicant.



01-00150-14-

He also provided a letter from his law school which said

While at Cardozo, Mr. XXX was granted a number of testing accommodations to aid him during exam periods.These accommodations included unlimited time onexaminations; adjustments to his testing schedule (e.g.allowing him to take portions of long exams in two sittingsscheduled on separate days); and the use of an assistant asa "writer." These accommodations were arranged to permitMr. XXX the rest periods important to avoiding aggravationof his condition. In addition, because his condition

results in loss of muscle control, the physical assistancewe provided enabled him to actually write his exams.Without these accommodations I do not believe Mr. XXX wouldhave been able to complete his studies at Cardozo.

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

There is no record in XXX file to indicate that Mr. Fuller

contacted the Board for consideration of the request foradditional testing days or time exceeding time and one-half.There is also no indication that Mr. Fuller or the Boardconsulted any medical authority concerning the effect of XXXcondition on his ability to take the examination. A handwrittennote on his application in the file says "P. Room - Amanuensis -Large print - Offer time & 1/2." By letter of January 25, 1993,the Board offered to provide a private room, an amanuensis, alarge print version of the examination, and an additional one andone-half hours per session for each day of the examination. Thehours provided were 7:30 AM to 12:15 PM and 1:00 to 5:45 PM anTuesday, February 23, and 7:30 AM to 12 noon and 1:00 to 5:30 PMon Wednesday, February 24. This amounted to 18@, hours of testingover a 34 hour period, with a 45 minute break the first day, a 13hour and 45 minute overnight break, and a one-hour break thesecond day. XXX failed the February examination.

XXX

XXX sought double time and a separate testing room for the



July 1992 examination as an accommodation for her learningdisability. In support of her request, she submitted psycho-educational evaluations from April 1989 and April 1992. The 1989evaluation was done by an educational consultant at the Readingand Learning Disorders Center in Rochester, Hew York, whoadministered a number of tests, including the Wide RangeAchievement Test, subtest of word recognition; the PeabodyIndividual Achievement Test, subtest of word recognition; thePeabody Picture Vocabulary Test, Form L; and the Peabody readingcomprehension test. Based on the results of these and othertests, the consultant recommended that XXX should "have time

01-00151-15-

constraints waived" on "tests that require reading speed andcomprehension" and "should not be judged by timed reading testsor tests that require an individual to function within a specifictime."

The 1992 evaluation was conducted by Dr. XXX , aconsulting psychologist at the Health Science Center in Buffalo,

New York. Dr. XXX administered the Woodcock Reading MasteryTests-Revised (WRMT-R), because XXX had been told that the Boardrequired that test. He noted, however, that the Woodcock test

is not sensitive to XXX particular disabilities inthat it has only minimal timing demands. One might saythat it is a test of power rather than speed. `sproblems are more in the area of speed than in power.

Dr. XXX concluded that XXX `s scores on the Woodcock would"support a conclusion that (she) a competent reader," but thather reading speed is well below average because of "weaknesses inshort-term language processing for which she has compensatedwell, but only by focusing intently on what she reads and therebysacrificing speed." These comprehension problems did noton the WRMT-R because it is not timed. Nevertheless, Dr.XXXfound that "the conclusion is inescapable that ( XXX ) is readingdisabled" and should be given special accommodations in timedtesting situations.

Prior to the July 1992 examination, the Board requested an



opinion from its expert, Dr. Frank Vellutino, Director of theChild Research and Study Center, 13 in Albany. The copy of theletter to Dr. Vellutino in the file has a hand-written notesaying --

P/C Frank V. 5/13/92She should not be considered disabled

The records relating to the July 1992 examination do not containany other information concerning XXX learning disability or itseffect on her ability to take the examination. The Board denied XXXrequest for accommodation for the July 1992 examination, andshe did not take the examination at that time.

13/Dr. XXX, the psychologist who administered theWoodcock to XXX, that the Woodcock is used to diagnoselearning disabilities in children and is not appropriate foradults because adults with learning disabilities have learned tocompensate for weaknesses in the areas measured by the Woodcock.He stated that psychologists who work exclusively with childrenmay not be familiar with learning disabilities in adults and,therefore, may not be qualified to diagnose adults with learningdisabilities.

01-00152-16-

XXX applied to take the February 1993 examination and soughtthe same accommodations (double time and a separate testing room)that she had previously requested. She submitted the sameevaluations that she had submitted for the July examination. Shealso submitted a letter citing the ADA and the cases filedagainst the Board by other applicants. The letter did notexplicitly threaten litigation, but did indicate that XXX wasaware of her rights under the statute and that she was willing toexercise them.

The Board again consulted Dr. Frank Vellutino, who haddetermined that XXX "should not be considered disabled" prior tothe 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 theWoodcock Reading Mastery Tests required by the Board, includedtimed tests. (Because he had not prepared a written opinionprior to the July 1992 examination, there is no evidence onwhether he had considered those tests in arriving at his previousconclusion.) For the February 1993 examination, Dr. Vellutinoconcluded that XXX "does have marginal reading skills" and "wouldbe encumbered under time conditions compared to those who haveless marginal skills." He therefore recommended giving XXXadditional time on the examination. Thus, after a thoroughexamination of the documentation submitted by XXX for the July1992 examination, the Board's own expert concluded that she wouldnot have an equal opportunity on the examination without

accommodation.

In response to Dr. Vellutino's January 1993 opinion, theBoard provided XXX a private room and double time for theFebruary examination (but noted that those accommodations would beprovided for that examination only and did not "constitute acommitment" for future examinations). Also, the Board did notallow the double time to be used on additional testing days.XXX testing times, therefore, were 7:00 AM to 1:30 PM and 2:30to 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 testingtime was 25 hours in a 37 hour period, allowing two, one-hourmeal breaks and a ten hour overnight break. XXX failed theFebruary examination.

The Department consulted Dr. XXX about his experienceswith the Board. He volunteered that he had learned that XXX wasallowed double time on the February 1993 examination, butrequired to take the examination in two days. He stated thatsuch extended hours of testing would inevitably have an adverseeffect on the results and that, regardless of disability, takinga test for twelve hours in one day is not equivalent to takingthe same test for six hours on two consecutive days. Thus, evenafter concluding that XXX was an individual with a disabilityentitled to accommodation, the Board failed to provide testing



01-00153

-17-conditions that gave XXX an equal opportunity to demonstrate thelegal knowledge and legal reasoning skills that the examinationpurports to measure.

XXX

XXX took and failed the examination in February 1985, 7uly1985, February 1986, July 1986, and July 1987 without requestingany accommodation. In February 1993, she reapplied, requesting,

on the basis of her disability, "bipolar disorder (manicdepression)," "relaxed time requirements, private or semi-privatetesting location, nearness to lighting and restrooms, proctorswho do not talk during the Exam and who provide materialsreadily." In support of her request she submitted a one-pageletter from her psychiatrist, Dr. XXX , of the XXXPsychiatric/Counseling Group, who confirmed the diagnosis andsupported "the accommodations requested by" XXX . The letter alsosaid --

This condition in no way affects her intelligence. She isdiligent about taking her medication and is alert toincreasing or decreasing the medication as her conditionwarrants. ... She requires a relaxed time management as herthinking and writing processes slow down under stress.

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

The letter also said that the disorder "can be triggered bycertain levels of stress" and that Ms. XXX takes Lithium plusStelazine "as needed if disturbing thoughts arise. Thesethoughts, too, are kicked off by extra stress." The Board didnot contact Dr. XXX or request additional documentation fromthe candidate.

Mr. Fuller sent the psychiatrist's letter to a psychologistat the Phobia and Anxiety Disorders Clinic at the University atAlbany, State University of New York, and requested "anevaluation of the documentation provided as well as your opinionas to whether the requested accommodations are reasonably related



to the claim of manic depressive disorder." The psychologistresponded by telephone. On January 21, 1993, Mr. Fullerdescribed his report in a letter to the members of the Board asfollows:

In the case of XXX , Dr. Brown indicates that Lithiumis commonly prescribed for manic depressives and that thedosage that she takes is relatively high. The presence of the second drug, Stelazine, which is an anti-psychoticmedication for the disturbing thoughts would seem toindicate that the Lithium is not doing the job. He further

01-00154-18-

added that distractibility is often a factor in the case of manic depressives.

Mr. Fuller's letter concludes, "Where do we go from here?" 14

The Department consulted another expert, Dr. Martin Allen, aclinical professor of psychiatry at Georgetown university MedicalSchool, who stated that it is not appropriate to consult apsychologist for an opinion on an individual who is takingmedication; an opinion from someone who is an expert in the fieldfor which the medication is given, in this case, a psychiatrist,would be required. He also indicated that Ms. XXX would bevulnerable to stress because of her illness and thatadditional time should have been allowed. Dr. XXX , XXXpsychiatrist, agreed that a psychologist is not an appropriateexpert for evaluating bipolar disorder.

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

The Board has considered the documentation that youhave provided, and has consulted with an expert in thefield. Based on that documentation and expert advice, andafter consideration of the nature and purpose of theexamination, the Board has concluded that the accommodationsyou have requested are not reasonable. Your request foraccommodations is, accordingly, denied.



The letter contains no mention of the right to appeal.

Although the Board's own expert confirmed that XXX had abipolar disorder, that the disorder might result in"distractibility," and that some accommodation fordistractibility would be Appropriate, the Board refused toprovide any accommodation.

The refusal to provide any accommodation is particularlystriking because some of the accommodations requested are thetype that the Board has provided to other applicants withoutquestion in response to similar requests. For example, one of XXX requests was "nearness to ... restrooms." The Board

rejected this request without making any inquiry into the basisfor the request or its relationship to the disability. Accordingto Dr. XXX , I no one connected with the Board ever contacted himfor additional information, but, if asked, he would have said

14/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.

01-00155

-19-that the request for bathroom access was based on frequenturination, which is a side effect of XXX medication. 15

In contrast, the Board provided a special room "in closeproximity to restrooms" and an additional one-half hour persession (one and one-sixth of the standard time) for XXX, who tookthe examination in July 1992. XXX had submitted a request16 foraccess to a restroom and extra time to make up for time lost dueto frequent urination because she was seven months pregnant atthe time of the examination. The request was supported by aletter from her obstetrician. Because pregnancy is not adisability under the ADA, XXX was an individual without a



disability who was granted accomodations (special seating andextra time) that were denied to XXX , who is an individual with adisability and was similarly situated to XXX her need forrestroom access and extra time.

XXX, who took the examination in February 1992 and February1993, also requested restroom access and additional time becauseof a need to urinate frequently due to "urinary problems"(confirmed by a letter from a physician). He was also providedspecial seating and an additional one-half hour per session,although there is not sufficient information in the file todetermine whether the "urinary problems" would be considered adisability under the ADA.

Th e Board also denied XXX request for a private or semi-private testing room. In contrast, it granted a request forspecial seating for the July 1992 for examination XXX , on thebasis of a note from a physician stating that XXX was wearing "along leg cast due to a torn Achilles tendon." The Board alsoprovided restroom access for XXX , although it was not specificallyrequested. There is no information in the file to indicate thatXXX was an individual with a disability, as defined in the ADA.Temporary conditions, such as pregnancy or a torn Achillestendon, are generally not considered disabilities, unless their

duration is expected to be substantial. In the cases of XXX andXXX, although they may have been "impaired" at the time of theexamination, they had the option of taking the examination at alater time, an option not available to XXX because her disabilityhas no similar time limitation.

XXX failed the February 1993 examination.

15/Because the Board-Is expert was a psychologist, notlicensed to prescribe medication, he would not be required to befamiliar with the side effects of psychoactive medication.

16/The request was submitted on July 14, two weeks beforethe examination, and, therefore, was untimely under the Board'srules.



01-00156Attachment BNew York Board of Law Examiners

VICTIMS OF DISCRIMINATION

XXX-XXX (learning disability)

XXX-XXX (orthopedic impairment)


XXX-XXX (vision impairment)

XXX-XXX (brain damage)

XXX-XXX (vision impairment)

XXX-XXX (multiple sclerosis)


XXX-XXX (bi-polar disorder)

APPLICANTS WHO RECEIVED TESTING ACCOMMODATIONS

XXX-XXXX

XXX-XXXX

XXX-XXXX



01-00157

Date post:	31-May-2018
Category:	Documents
Upload:	legalmatters
View:	215 times
Download:	0 times

US Department of Justice Civil Rights Division - Letter - lofc028

Documents