Vol. 40 No. 8
Ed Finkel is a freelance writer/editor in Evanston, Illinois.
Stanford University Law School has handled third-year student Elizabeth Kolbe’s physical disability virtually without a hitch, but Kolbe is well aware she’s lucky in that regard. Through her role as president of the National Association of Law Students with Disabilities (NALSWD), Kolbe has gotten a broader sense of what law students with disabilities face.
“It definitely seems like there are more and more students with disabilities who are going to law school, which is incredibly encouraging, but I’m not sure if they’re being accommodated any better than they used to be,” she says. “Disability rights in general is becoming a bigger issue. It’s filtering into the law school environment, as well. Broadly speaking, law students are pretty good advocates for others—and themselves.”
Schools can’t take a one-size-fits-all approach, says Patrick Dennis, a 2L at Lewis & Clark Law School who suffers from severe rheumatoid arthritis. “The difficulty with disabilities is that it’s not easy just to pin it down. Everybody’s disabilities impact them in very individual ways,” he says. “A combination that my law school might provide me wouldn’t work for someone who’s vision impaired. The trouble is that there’s just not enough dialogue.”
Attorney JoAnne Simon, who has represented disabled law students (or prospective students) who are suing standardized testing companies for greater accommodations, says the most significant problems surround those tests.
“Obviously, there could be a school here or there that isn’t as responsive,” Simon says. “Or there may be an individual circumstance where a student feels his or her rights have been violated for one reason or another. But the complaint is usually on one end or the other—getting into law school, or the bar exam.”
And those verbal complaints have translated into legal complaints against organizations like the Law School Admission Council (LSAC) and National Conference of Bar Examiners (NCBE). “On the whole, the law schools are much more responsive than the standardized testing organizations are, as an industry,” Simon says. “But, in fact, the law schools are pretty careful. Nobody has demonstrated . . . that anybody is getting an advantage.”
On February 6, the American Bar Association’s House of Delegates unanimously passed a resolution sponsored by the Commission on Disability Rights urging entities that administer law school admissions tests “to provide accommodations that would best ensure that the skills of the test-takers are measured, and not their disabilities,” according to the resolution summary. “It would further urge that the process for determining whether to grant an accommodation be made public; a decision on approving an accommodation be conveyed to the applicant within a reasonable amount of time; and that there be a fair appeals process for a denied accommodation. The resolution also urges testing entities to not flag scores that have received a disability-based accommodation.”
Given that the ABA accredits law schools, the resolution—although not binding in any sense—could have significant impact, says Tanya Terrell, director of the ABA Section of Individual Rights and Responsibilities, which had a major role in launching NALSWD five years ago (see sidebar below).
“I hope [the resolution] will at least raise attention to the issue of accessibility for law students with disabilities,” Terrell says. “It wasn’t something that I think was on most people’s radar screens. If nothing else, it is now an official position of the American Bar Association (ABA). We can now go out and talk with states and law schools to be if there can be more accommodations. That was a direct result of the NALSWD students coming to the ABA and saying, ‘This is a problem, and we need your help.’ ”
On the other side of the issue, Erica Moeser, president of NCBE, says that she personally sees the resolution as “motherhood and apple pie. It was difficult to be against. It was difficult for the groups that signed on to have sufficient information to understand what they were adopting.”
Moeser takes particular issue with the statement about flagging scores. “It makes for easy, cheap rhetoric to say you shouldn’t flag someone because it’s stigmatizing,” she says, but for testing organizations to do so “is a perfectly valid position and one that has considerable integrity behind it.” She adds that “no one . . . can tell us that a score that’s obtained not under standard conditions is the same as a score under standard conditions.”
Standardized Testing Lawsuits
Students or prospective students who have taken their arguments into the courtroom believe that testing organizations are overly conservative in granting accommodations.
“Generally speaking, they [testing agencies] want to make sure that the person is in fact somebody who has a disability,” Simon says. “They express a concern that other people are not disadvantaged by people with disabilities getting too much accommodation. . . . Law students, by nature, are competitive. Some students might have a misunderstanding about their fellow students and think someone might be getting [unfair] accommodations.” Regarding LSAC’s rationale for denying some accommodation requests, LSAC director of communications Wendy Margolis says, “The [LSAT] test is formulated very specifically and scientifically to be predictive for success in law school, given under certain circumstances. In order to vary from those circumstances, you are risking compromising the predictive ability of the test for everybody who takes it. Every request has to be considered very carefully. We have to make sure that people taking the test not under accommodations also have a fair test.”
Prospective student Lisa Rousso of Fort Salonga, New York, has a cognitive disorder due to a lesion that was removed from her brain in 2005. She sued LSAC in November in federal court under the Americans with Disabilities Act (ADA), and the council settled in February for most of what Rousso wanted, says Simon, who represented her. That included more time to take the exam, extra breaks, and the ability to mark the exam book instead of using the scanning device.
In addition to balking at the accommodations Rousso requested, LSAC insisted that Rousso have a new cognitive evaluation because one had not been done for four years, but that was based on the standard for a learning disability, Simon says. “My client . . . had brain surgery,” she says. “After more than a year, there’s not much change to the brain.”
Rousso’s disorder causes slow reading and writing and acute fatigue, Simon says. “It certainly is not an advantage to be exhausted just from reading, or to take twice as long reading,” she says. “The law has made it clear that it’s not supposed to be an extensive analysis [of someone’s medical condition]. I don’t see much indication from the standardized testing industry that they’re responded to the ADA in the way that was intended. But hope springs eternal.”
Deanna Jones, a 3L at Vermont Law School, is representing herself against the NCBE in the Second Circuit Court of Appeals after NCBE lost a district court case to keep her from taking the Multistate Professional Responsibility Exam (MPRE) with the accommodations she had requested.
“Their standpoint is, it’s a paper and pencil test, and they don’t give it electronically unless the court tells them to,” says Jones, who has an auditory processing disorder in addition to her visual disability. While NCBE offers a “suite of options” that includes large print, a Braille reader, or a recording device, “They all present different problems for me.” Due to the auditory processing issue, for example, when Jones listens to material out loud without a visual reference, “I can’t organize the information, which is why I use electronics.” Her device provides information in large print and audio and “highlights the word and sentence as I read it, so I know where I’m at, at any given moment.”
The US District Court for the District of Vermont found that the NCBE’s attempt to deny Jones’ use of her ZoomText Magnifier/Reader and Kurzweil 3000 screen reader constituted discrimination. The parties submitted briefs on the issue of mootness to the Second Circuit in early 2012, Jones says.
A similar case revolving around both the MPRE and the Multistate Bar Exam (MBE) recently concluded in favor of plaintiff Stephanie Enyart, who graduated from UCLA School of Law in 2009 and served as the first president of the NALSWD.
Judge Charles R. Breyer ended the two-year-long dispute, brought under the ADA and California’s Uhruh Act, on October 24, 2011, by ruling that Enyart was entitled to take the bar exam with help from text-to-speech screen reading as well as visual screen magnification software, known as JAWS and ZoomText.
Both the Ninth Court Court of Appeals and the US Supreme Court affirmed a district court ruling rejecting NCBE’s arguments that accommodations like Braille or a human reader should be sufficient, given Enyart’s testimony that such accommodations would result in eye fatigue, disorientation, and nausea within several minutes.
“[Enyart] does not argue that she simply ‘prefers’ to use JAWS and ZoomText,” the district court wrote. “On the contrary, she has presented evidence that the accommodations offered by NCBE do not permit her to fully understand the test material, and that some of the offered accommodations result in serious physical discomfort.”
“The name high-stakes tests—it is true,” Simon says. “These are very high stakes. You either get licensed, or you don’t. You either have a career, or you don’t. You either get into a law school that is consistent with your ambitions and your abilities, or you don’t. A few points on the LSAT can make a huge difference. . . . Accommodations on the bar exam can make the difference between life and death in your career.”
In deciding which accommodations to grant, NCBE and other testing organizations try to strike the best balance they can, Moser says.
“When making licensing decisions based on standardized testing, you don’t want to over-accommodate just as you don’t want to under-accommodate,” she says. “Trying to pinpoint what is a blurry situation in the first place is very challenging. The goal is to match the individual to what they deserve, not simply what they ask for. . . . From our standpoint, we’re operating in a standardized test environment. One of the issues is looking to see how individuals perform under standard testing conditions.”
For people with similar conditions, NCBE prefers to grant similar accommodations, Moeser says. “To the extent that individuals ask for something that’s different, they may ask for more time, they may not ask for the same amount of time as everyone else. Standardization suggests you want to deal with everybody equally,” she says. “You want to consistently treat individuals who present the same or similar situations. Surely the public policy wouldn’t be served by saying, ‘We’ll give you whatever you want. If you want triple time, sure, go ahead.’ ”
Kevin Fritz, a second-year student at Washington University School of Law in St. Louis, didn’t end up in court but did hire an attorney to help him advocate for LSAT accommodations like extra time, a separate room, and the use of digital materials because his muscular dystrophy can make it difficult to turn pages.
He ended up getting 20 extra minutes and the use of a scribe to write down his answers—but who was not permitted to turn pages of the exam. “The issue I’ve had with LSAT, they just assume that if they provide something, it’s going to work for anybody,” Fritz says. “I’ve never used a scribe in my life. I wasn’t able to concentrate as well with another individual standing right next to me. . . . I did not have enough time to go through all the questions. I was taking maybe a third of the test turning the pages. I was practically in tears by the end of it.”
Fritz ended up with a low score on the LSAT and received admission to only 3 out of the 35 law schools to which he applied. “Washington University, they obviously saw something in me,” he says. “They were able to look past my LSAT and could see that I would have success as an attorney.”
On Campus, Need for Education
The battles with test-taking entities thankfully don’t extend to campuses for the most part. Aside from continuously educating a new set of professors and students each semester about the limitations posed by her visual impairment, Jones says her disability hasn’t caused problems for her at Vermont Law School.
“I’ve been allowed to use my electronic reader with large print,” says Jones, who has a bent toward disability law but no definite plans after this spring. “My fellow students really can’t do enough to be helpful. Vermont Law School is a really incredibly supportive environment, students and staff and faculty.”
Fritz says he’s reasonably happy with Washington University’s accommodations for his muscular dystrophy, which confines him to a wheelchair and limits the use of his hands.
“Wash U makes a great effort to ensure that I’m included and ensure that I’m being accommodated. But I wouldn’t particularly say that any university is as proactive as they could be,” says Fritz, who has worked for then-Illinois Sen. Barack Obama and the federal Equal Employment Opportunity Commission, and will spend this summer handling employment discrimination defense for Chicago firm Seyfarth Shaw LLP.
University of Michigan 3L Deepa Goraya, who serves as vice president of NALSWD, struggled to do legal research her first year and never did find a mentor who could talk first-hand about how to handle her vision impairment in the context of law school.
“What I needed was to be able to connect to another disabled or blind mentor,” she says. “I never got that. And I found that legal research . . . was a problem for me. No one at Michigan was knowledgeable about accessibility in Westlaw.” Mobile versions of Westlaw use a screen reader to assist the vision impaired, but Goraya didn’t find that out until the end of her first year.
Joshua Pila, a 2007 graduate of Georgetown University Law Center who’s senior counsel to electronic media company LIN Media, says his on-campus experience was smoother than in most settings. As someone with a hearing impairment, he received the accommodations he needed to sit near the front of the classrooms and use a note-taker in some cases. The only problem he had was when recruiters came to campus and interviewed students in large ballroom-type settings all at once.
“It was 50 tables in one room with people talking over each other,” he says. “That just didn’t work for me.”
Kolbe, who plans to work in health care law for Sidley Austin LLP in Washington, D.C., says she hears concerns about students whose disabilities are not kept a secret as they might have wished. “They’re having to take exams in rooms where other students are walking in; other students are aware they’re receiving accommodations,” she says. “They feel they’re not being bullied, per se, but definitely getting unwanted attention.”
Dennis hasn’t dealt with this first-hand, but he’s heard that some students absorb a certain amount of resentment from fellow students because of the accommodations they receive. “There is kind of a feeling from some students that don’t have disabilities or aren’t receiving accommodations, that students who get accommodations are receiving some type of benefit or leg up,” he says. “I don’t think students with disabilities are outperforming other students. I would find that highly unlikely. I’m not blowing my classmates out of the water, that’s for sure.”
ABA Served As Midwife for Network of Students with Disabilities
During a conference call with members and staff of the ABA’s disability rights committee about five years ago, the discussion turned to identifying law students with disabilities. Someone on the call made the assumption that surely there was a national organization somewhere that could help tap into that network.
That turned out to be a wrong assumption, so the ABA worked through law schools to pull together about 50 law students with disabilities to hold a conference about issues and challenges they faced—and the National Association of Law Students with Disabilities (NALSWD) came into being. The group mostly operates independently now, although the ABA continues to serve as a fiscal agent and helps with fundraising and marketing, says Tanya Terrell, director of the ABA Section of Individual Rights and Responsibilities.
“It happened almost by mistake,” she says. But by the time of that initial conference, participants had become very intentional about brainstorming what the organization should look like, what issues it should examine and how to choose leadership. Then-UCLA School of Law student Stephanie Enyart became the first president of NALSWD.
Today, NALSWD continues to host an annual conference and provides a number of other services such as: fostering mentorships between pre-law and law students, or law students and attorneys with disabilities; promoting participation and inclusion in legal education, and supporting and advocating for professional opportunities; building understanding and alliances among people with a range of disabilities; and networking with and supporting other organizations that advocate for social justice.
NALSWD has published a best-practices guide for law schools on how to accommodate law students with disabilities, a question-and-answer packet for people with disabilities on applying for law school—like, whether to and how to disclose a disability on one’s application, or what questions to ask schools’ disability resource officers—and guides to strategies for successful self-advocacy in seeking accommodations for the LSAT and the bar exam. All are available on the organization’s website at www.nalswd.org.
Elizabeth Kolbe, the organization’s president and a 3L at Stanford Law School, says she’s regularly fielding questions from students around the country. “A lot of it is about bar accommodations, and also LSAT,” she says. “If someone isn’t receiving extra time, and they think they need it, or they’re not getting large-print materials in time. Some of it is aimed at the fact that their disability is not being kept a secret.”
The membership of NALSWD has grown “exponentially,” says Patrick Dennis, a 2L at Lewis & Clark Law School who’s serving as membership director this school year. “I feel like that’s a really good indicating sign,” he says. “A number of our alumni are in the process of forming their own group. They tend to be doing pretty well. That bodes well for students coming through—they will have more available mentors.”
Penn State JD Plans to Speak Up for the Deaf
While home on winter break as a college freshman, Andrew Rozynski remembers fielding phone calls from potential employers on behalf of his father, who, like Rozynski’s mother, is deaf.
He sensed the callers’ tones change dramatically when he mentioned that his father, an information technology specialist who has been unemployed for about a decade, would need accommodations like someone e-mailing rather than calling with the specifics of IT problems that needed solving.
Most of these potential employers never scheduled an interview, Rozynski says, and when he called them back to inquire, they said the position had been filled. That experience changed his earlier decision to pursue entrepreneurship as a career, and after graduating he enrolled at the Dickinson School of Law at Penn State University, where he earned a JD in December and was preparing to take the bar exam in February.
Rozynski took Penn State’s disability law class and worked in the school’s disability law clinic, although he did not have the opportunity to represent any hearing-impaired clients. But, inspired by his personal life, that’s become his life calling.
“I’m going to start a [solo] practice upon being admitted to the bar,” Rozynski says. “The turning point was that phone call I got, where my dad was looking for jobs. As soon as they heard he was deaf, it was an insurmountable accommodation.”
Rozynski had become used to feeling like his parents weren’t treated as equals while growing up, when he had to field calls from doctor’s offices, insurance companies, and other businesses. Most cases filed on behalf of hearing impaired clients are either employment-related or derive from the failure to provide interpreters as required under ADA at doctor’s offices, hospitals, rehabilitation centers, and prisons, he says.
“It’s a two-step analysis: Does the person have a disability, and two, did they provide an interpreter? And if they did provide an interpreter, the next question is, was the communication effective?” Rozynski says. There are cases where a hospital will provide an interpreter on a webcam that has a 6-inch screen, freezes up, isn’t at the right angle to the bed, and hospital personnel don’t know how to work the equipment, he says.
Employment-related cases like those his father faced are more difficult to bring because human resources department have become “a lot smarter than they used to be” and able to “skirt around the law,” Rozynski says. It’s usually only at “mom and pop” companies like those whose calls he fielded on his father’s behalf who make “blatant comments, like, ‘How is that going to work?’”
Under the law, there is really only one question employers can ask, he says: “Are they qualified for the job, with accommodations?”