As we watched the confirmation hearings on Judge Sonia Sotomayor's nomination to the Supreme Court, Pete said: "Judge Sotomayor wrote the best description of a learning disability that I've read in any legal decision. She got it right."

Who is Marilyn Bartlett? Who educated Judge Sotomayor about learning disabilities? How does her decision help people who need to understand learning disabilities and make decisions about reasonable accommodations 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 she completed law school, Marilyn Bartlett worked as an associate in a law firm where she received excellent reviews. When Ms. Bartlett 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 Bar for discrimination.

Trial in U. S. District Court (1997)

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

Marilyn Bartlett was represented by Jo Anne Simon, Esq. of New York City. (see info below) 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 1997 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 Exam'rs, 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.

Appeal to Second Circuit (1998)

On appeal, the Second Circuit affirmed in part and vacated in part. In their 1998 decision, the appeals court ruled 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 Exam'rs, 156 F.3d 321 (2d Cir. 1998)

The Bartlett case provides guidance to those who are trying to determine if a child or adult has a learning disability and needs accommodations. The Court found 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.
https://www.wrightslaw.com/law/caselaw/case_Bartlett_Bar_2d_9809.htm

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

Appeal to the Supreme Court

The Supreme Court remanded the case back to the Second Circuit with instructions to consider the case in light of their recent decisions on the Americans with Disabilities Act.

2nd Circuit Decision #2 (2000)

In 2000, the Second Circuit held:

We affirm the district court insofar as it (1) declined to defer to the Board's determination that Bartlett does not suffer from a disability, (2) found that the Board is subject to the strictures of the Rehabilitation Act, and (3) held that Bartlett is entitled to compensatory damages if her rights under the ADA were violated.

We vacate and remand as to

(1) whether Bartlett has a disability under the ADA and the Rehabilitation Act, and

(2) if so, the proper measure of compensatory damages.

We leave it to the district court on remand to decide whether to allow the parties to submit further evidence or whether to resolve these questions on the existing record.

http://laws.lp.findlaw.com/getcase/2nd/case/979162v2&exact=1

U. S. District Court Trial #2 (2001)

In 2001, a second trial on these issues was held before Judge Sotomayor.

In a 99-page opinion, Judge Sotomayor found that Ms. Bartlett was substantially limited in the major life activity of reading when compared to most people by her slow reading rate and by the fatigue caused by her lack of automaticity in reading. The Court also found that Ms. Bartlett was substantially limited in the major life activity of working because her reading impairment was a substantial factor in her failing the bar examination.

The Court held that Ms. Bartlett was entitled to double the normally allotted time on the bar exam, spread over four days, use of a computer, permission to circle multiple choice answers in the examination booklet, and large print on both the New York State and Multistate Bar Examinations.

In this decision, Judge Sotomayor wrote, "Plaintiff's experts have convinced me that the extra time provided to learning disabled applicants merely levels the playing field and allows these individuals to be tested on their knowledge; it does not provide them with an unfair advantage." (S.D.N.Y. 2001)

The decision is published in Volume 2001 WL 930792.

Marilyn Bartlett was represented by Jo Anne Simon of NYC. Ms. Simon's practice focuses on disability discrimination in high stakes standardized testing and higher education.

More about Jo Anne Simon. http://www.joannesimon.com/

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Created: 06/19/09
Revised: 07/13/09