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Disability Issues Continue to Challenge Legal Educators and Bar Admissions Authorities
Laura F. Rothstein
As the academic year began this fall, law school administrators across the country are again raising questions about two issues involving individuals with disabilities who seek to enter the legal profession. First is the issue of accommodating students with learning disabilities. Second is the continued concern about mental health history questions asked by bar authorities in the admissions process.
Accommodating Learning Disabilities and Related Disabilities. In the August 1996 issue of The Bar Examiner, Richard Bartlett, Chair of the National Conference of Bar Examiners, stated that "undergraduate schools and law schools are considerably less rigorous than bar examiners in determining the existence of a disability under ADA, and then in determining appropriate accommodations." Whether that is an accurate statement or not is not clear, but it does raise a legitimate concern.
When the LSAC began providing accommodations for the LSAT in the early 1980s, there were only a few candidates with learning disabilities seeking accommodations, and little was known in the higher education about how to accommodate them. There was much skepticism within legal education as to whether there really is such a thing as a learning disability and feelings that accommodations such as extra time give an unfair advantage. Law schools were reluctant to accommodate these students for these and other reasons.
Since that time law schools have become much more willing to accommodate students with learning disabilities, perhaps too much so in some cases. There is greater understanding of what learning disabilities (and other conditions such as ADD and ADHD) are, and there is more technical assistance to advise law schools on how to appropriately accommodate disabilities. There may also be an inclination in some cases to grant whatever the student requests to avert an OCR investigation or other legal challenge to a denial of an accommodation request.
The bar examining authorities have come to this issue more recently. While the Rehabilitation Act applied to law schools since 1973, the bar authorities have only been subject to disability discrimination laws since the 1990 passage of the Americans with Disabilities Act. They have, however, developed more expertise related to providing accommodations and in evaluating the documentation supporting the request for accommodations. The problem arises when a student who may have been "overaccommodated" in law school seeks similar accommodations on the bar exam and the accommodations are denied. Because some law schools were not more rigorous in requiring documentation to justify the accommodations, the student may have had three or four years of double, triple, or unlimited time for exams and now faces a grueling exam without the same accommodations. Law school administrators do not do their students a favor by overaccommodating when it is not appropriate to do so.
It is necessary to strike the right balance. There are extremely competent lawyers and law students with learning disabilities. The September 1996 ABA Journal article entitled "What Sylvia Law, Jonathan Pazer and David Glass confront when they read or write," certainly illustrates that point. Those who have documented learning disabilities should be provided reasonable accommodations—on the LSAT, in law school course work and exams, and on the bar exam. Those who do not, should not. An evaluation and a recommendation as to accommodations should be made only by a professional qualified to do so. The evaluator should be advised about the various programs in which the individual being evaluated will be involved, in order to recommend appropriate accommodations. An accommodation for a multiple choice, "bubble in" exam may be different than for an essay exam. An individual may need different accommodations in terms of extra time when the exam is a three- or four-hour one-day LSAT exam, several end of the term exams of different types in law school, or a three-day exam for bar admission. The issues of exhaustion, security, administrative burden, and financial burden are different in all of these situations.
The LSAC, most bar admission authorities, and many law schools have developed good practices and procedures for evaluating and accommodating individuals with disabilities. The remaining law schools that have not need to identify appropriate consultants to whom they can refer requests for academic modifications for individuals with disabilities. These consultants may be available on some campuses within counseling and testing offices or within offices for students with disabilities. Other schools may need to hire outside consultants to evaluate documentation. It is essential that law schools be proactive in this area. Entering students should be advised at the earliest opportunity as to how to seek accommodations, so that disagreements over these issues can be resolved as early as possible. The time spent up front on this issue will usually save heartaches and headaches later.
Mental Health Histories. There continues to be substantial concern about the mental health history questions still asked by many bar admission authorities. While most states have revised their questions in light of the ADA and the litigation interpreting the ADA, there are still some troubling questions, although in some cases, they have been upheld in court. Before the ADA, many states asked applicants to the bar to indicate whether they had ever been treated for any mental health problems, or variations on such broad questions. Most states have narrowed substantially the time frame and have tried to narrow the number of reportable conditions. These states have acted in good faith and are acting responsibly because of their legitimate concerns about fitness to practice law and protecting the public.
Nonetheless, some of these questions are still vague, leaving applicants uncertain about whether they must report treatment for depression as "treatment for any other psychotic condition." The Minnesota bar was convinced that such questions are also a deterrent to law students seeking mental health treatment in many cases and they eliminated this mental health history question entirely. In addition to these concerns about deterrence and vagueness, there are significant concerns about privacy and confidentiality. In most cases, when an applicant answers affirm-atively, the medical treatment records of the applicant must usually be released to the bar admission authorities. These records may be voluminous and contain extremely private information. While bar admission administrators and their staffs are quite careful about how these records are treated, one can also easily imagine a scenario where an individual with a mental health treatment record runs for office and private information about that individual is leaked by a former staff member. How does one put that genie back in the bottle? (Remember Senator Eagleton and the 1972 election?)
The information that the bar admission authorities want to know can almost always be obtained through appropriate questions about behavior and conduct. Information revealed by broad mental health treatment questions do not justify the burdens and risks placed on the applicants.
There is an additional tension for law school administrators who are asked about applicants. Many student services administrators are told by students about mental health counseling, depression, and so on. It is only where such a condition affects performance and fitness that it should be reportable to the bar authorities. Thus, law school administrators are often put in a difficult position when asked to report their knowledge of mental health problems. Bar admission authorities need to recognize that tension.
A St. Louis Follow-Up. The 1995 St. Louis conference on disability issues brought together for the first time in a comprehensive way individuals from law school admissions, legal education, and bar admissions. The conference was jointly sponsored by all of these groups. It was an excellent start at addressing issues of accommodating learning disabilities, mental health history issues, and other difficult questions arising from the Americans with Disabilities Act and its impact on legal education and the legal profession.
A follow-up conference will be held on November 13-15, 1997, in Washington, D.C. It is essential that we continue to communicate about these issues and that we understand where and why we have differing perspectives on how to respond to these challenging issues.
Laura F. Rothstein is Law Foundation Professor of Law at the University of Houston Law Center.
This article originally appeared in Syllabus, Winter 1997.