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Judge Sotomayor Knows About Learning Disabilities – “She Got It!”

07/14/09
by Wrightslaw

As we watched the confirmation hearings on Judge Sonia Sotomayor’s nomination to the Supreme Court, Pete said: “In the Bartlett case, Judge Sotomayor wrote the best description of  learning disabilities that I’ve ever read in a legal decision. She got it!”

What is the Bartlett case? Who educated Judge Sotomayor about learning disabilities?

How do Judge Sotomayor’s decisions help those who must make informed decisions about accommodations for people with learning disabilities today?

Marilyn Bartlett had a Ph.D. in Educational Administration and a law degree from Vermont Law College. Ms. Bartlett was also diagnosed with dyslexia, a reading disability that affects reading speed, fluency and automaticity.

After completing law school, Ms. Bartlett worked as an associate in a law firm where she received excellent reviews. When she  took the New York Bar Exam, she requested accommodations for her dyslexia, including extra time, permission to record her essays on tape, permission to circle answers in the test booklet.

The Bar claimed that she didn’t have a disability and denied her applications for accommodations.

Ms. Bartlett took the bar exam five times after the Bar denied her requests for accommodations. She was unable to pass the exam and had to leave her law firm job because she was unable to pass the bar exam.

In 1993, Marilyn Bartlett sued the New York State Bar for discrimination.

21-Day Trial in U. S. District Court

In 1997, a 21-day trial was held in the Southern District of New York. Judge Sonia Sotomayor presided.

Marilyn Bartlett was represented by Joanne Simon, Esq. of New York City. Her lead expert witness was Dr. Rosa A. Hagin, Research Professor of Psychology at New York University School of Medicine and Professor Emerita at Fordham University.

In the District Court decision, Judge Sotomayor described Ms. Bartlett’s learning disability as follows:

“For those of us for whom words sing, sentences paint pictures, and paragraphs create panoramic views of the world, the inability to identify and process words with ease would be crippling. Plaintiff, an obviously intelligent, highly articulate individual, reads slowly, haltingly and laboriously. She simply does not read in the manner of an average person …

“Having witnessed all of the trial testimony and having studied the thousands of pages of exhibits, affidavits and depositions, I conclude that plaintiff is not able to read in the same condition, manner or duration as an average reader when measured against ‘the average person having comparable training, skills and abilities.’ 29 C.F.R. § 1630.2(j)(3)(i). For this reason, I find that plaintiff is substantially impaired under the law, and she is therefore entitled to receive reasonable accommodations in taking the New York State Bar Examination.

Bartlett v. New York State Bd. of Law Examiners, 970 F.Supp. 1094 (S.D.N.Y. 1997)

Judge Sotomayor found Dr. Hagin’s testimony persuasive:

“She [Hagin} placed 'considerable emphasis' on Bartlett's performance on the Diagnostic Reading Test (DRT), which 'demonstrat[ed] plaintiff’s slow rate of reading’ … On the DRT, when compared to college freshmen, Bartlett’s reading rate of 195 words per minute, timed, placed her in the 4th percentile, while her reading rate of 156 words per minute, untimed, placed her below the 1st percentile … Dr. Hagin concluded that ‘plaintiff does not read in the same condition, manner or duration of the average adult reader in that plaintiff does not read with the automaticity or speed of an average reader.”

The State Bar appealed to the U. S. Court of Appeals for the Second Circuit.

Appeal to Second Circuit

On appeal, the Second Circuit affirmed in part and vacated in part. In their 1998 decision, the appeals court held that the State Bar’s decision was based on an “arbitrary standard” of disability:

“Dr. Bartlett, who has fought an uphill battle with a reading disorder throughout her education … is among those for whom Congress provided protection under the Americans With Disabilities Act and the Rehabilitation Act.

“Dr. Bartlett’s cognitive impairment—her difficulties in automatically decoding and processing the printed word—limits her major life activities of learning and reading to a substantial degree.

“Reasonable accommodation of this disability will enable her to compete fairly with others in taking the examination, so that it will be her mastery of the legal skills and knowledge that the exam is designed to test—and not her disability—that determines whether or not she achieves a passing score.

Bartlett v. New York State Bd. of Law Examiners, 156 F.3d 321 (2d Cir. 1998)

Relevance of Decisions in Bartlett

The decisions in Bartlett provide guidance to those who must  determine if a child or adult has a learning disability and needs accommodations. The Court held that:

“A single test cannot be used as the sole predictor of ability and professionals should not generalize reading competence based on a single measure.

“Learning disabilities cannot be captured by psychometric measures alone and clinical observations are essential to the diagnosis of learning disabilities.

“Research shows that while students with learning disabilities perform significantly better with extra time; extra time does not have a significant impact on the performance of normally achieving students.

“A person’s ability to get good grades is not the bottom line. If it were, then an extremely bright and hardworking student, who uses alternative routes to achieve academic success, could never be found to have a learning disability.

“This is not what the ADA intended.”

You can read this decision at http://www.wrightslaw.com/law/caselaw/case_Bartlett_Bar_2d_9809.htm

The State Bar appealed to the U.S. Supreme Court.

To learn what happened next, read Judge Sotomayor Wrote Best Description of Learning Disabilities in Bartlett v. NY Board of Law Examiners at http://www.wrightslaw.com/news/09/bartlett.sotomayor.htm

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4 responses so far ↓

  • 1 Debbie 08/31/10 at 1:25 pm

    I used this website continually during my daughter’s high schools years, and eventually we were able to overtune an ACT extra time request, that had been denied. Now turning to this website, since the GRE is required for Occupational Therapy master’s degree at only 1 school, but her 1st choice. They say she must be tested as an adult, although her Woodcock tests are within the 5 year timeframe, and that 7 subcategory raw scores are insufficient. Looking to understand what laws applied to adults with learning disabilities.
    As well, would a surgeon run an MRI on your knee, if he was performing a heart bypass? I doubt. Discernment in ‘reasonable’ testing choices is needed in this sector.
    thank you,
    Deb

  • 2 Rozlind 08/22/09 at 9:17 pm

    The Marilyn Bartlett case is very special to me. My daughter was diagnosed dyslexic. While she endured much verbal abuse & discrimination thru-out elementary thru High school, the most horrific act was Jan 2005 at the University. She made an appt. w/a school adviser to request a class waiver. She and the professor made the agreement. The adviser inquired, why? She inquired about her actually having a learning disability. My daughter stated that was correct . The adviser then stated: “Oh, someone made a mistake – “we don’t have people with learning disabilities in this school.” She immediately removed her from all of her classes(she was not failing) & told to sit out til next fall & reapply. She was threatened & told to keep her mouth shut or she wouldn’t be allowed to graduate til 07, 08 or maybe not at all.

  • 3 Pam Wright 07/15/09 at 4:49 pm

    I don’t know if she took the bar exam again. She sued the NY Bar in 1993. The case bounced around for years. In 2000, the 2nd Circuit remanded the case for another trial. The 2nd trial before Judge Sotomayor was in 2001. I think it would be incredibly hard to pass a bar exam after being out of law school for 8 or 9 years.

    I found a link to a news release dated Aug. 4, 2008. Here is an abbreviated version:

    Dr. Marilyn J. Bartlett was named dean of the College of Education at Texas A & M University-Kingsville today by the Board of Regents … the College is preparing the next generation of classroom teachers and administrators and providing master’s and doctoral-level programs for those already in the field …

    In 2006, she received the Teaching Excellence Award from the College of Education at the University of Florida St. Petersburg and in 1999, Bartlett received the Lifetime Achievement Award presented by LD Access, a foundation focused on needs of learning disabled adults.

    http://www.tamuk.edu/news/2008/august/bartlett/

    http://www.stpt.usf.edu/coe/leadership/bartlett.htm

  • 4 Sharon 07/15/09 at 9:17 am

    Having read this article fully, I have one remaining question. Did Marilyn Bartlett pass the Bar Exam once given the accommodations she was entitled to?

    Every parent who has a child with a disability should be familiar with this case, as it will help those that leave the protection of IDEIA and must make it in the “real” world.

    Sharon