JAN 13 1994
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XXXX
XXXX
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Mr. James T. Fuller
Executive Secretary
New York State Board of
Law Examiners
7 Executive Center Drive
Albany, New York 12203-5148
Dear Mr. Fuller:
     This letter constitutes the Department of Justice's (the
Department) Letter of Findings with respect to the allegations
received by this office concerning violations of title II of
the Americans with Disabilities Act of 1990 (ADA) by the New York
State Board of Law Examiners (the Board). Title II prohibits
discrimination against qualified individuals with disabilities
on the basis of disability by State and local governments.
The allegations concern denial of accommodations requested by
individuals with disabilities for the New York State Bar
Examinations administered in February and July, 1992 and
February 1993.
     Title II of the ADA, 42 U.S.C. 12131-12134, prohibits
discrimination on the basis of disability against qualified
individuals with disabilities by public entities. The
Coordination and Review Section of the Civil Rights Division is
responsible for investigation and resolution of administrative
complaints alleging violations of title II by components of State
and local governments in the area of the administration of
justice, including courts. 28 C.F.R.  35.190(b)(6). The
Department of Justice has authority to conduct investigations
when it receives a complaint or when it has reason to believe
that a public entity subject to its jurisdiction is violating
title 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 bar
examination that is equal to the opportunity afforded to others.
Specifically, the Board has refused to provide qualified
individuals with disabilities the accommodations necessary, based
on the nature and severity of their disabilities, to afford them
an opportunity to demonstrate the legal knowledge and legal
cc:  Records CRS Chrono Friedlander Esbrook Kaltenborn
     Kaltenborn.nyb.lof.94
01-00128
                               -2-
reasoning ability that the examination purports to measure that
is equal to the opportunity afforded to others. The Board has
provided accommodations in some circumstances only after
qualified individuals with disabilities protested the Board's
actions or filed complaints in court or with the Department of
Justice. In addition, the Board has failed to cooperate in good
faith in the Department's investigation.
     Although the Department has not had the opportunity to
review the records of all applicants who may have been affected
and, therefore, has not completed its investigation of all of the
Board's policies and practices relevant to this matter,1 the
Department has determined that the Board has engaged in, and
continues to engage in, a number of practices that violate title
II and the Department's regulation implementing title II, 28
C.F.R. pt. 35. In addition, the Department has determined, based
on the Board's continued refusal to allow the Department access
to its records and its continued resistance to inquiries that are
not directly related to the complaint originally received by this
office in June 1992, that the Department is unable to resolve
this matter informally. Accordingly, the Department is issuing
this Letter of Findings as provided in 28 C.F.R.  35.172.
     Pursuant to 28 C.F.R.  35.172(a)(3), the Department is
hereby informing the Board that the Department is prepared to
enter into negotiations with the Board in order to secure
compliance 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 the
negotiations are unsuccessful, we will refer the matter to the
appropriate office of the Department with a recommendation that
it promptly initiate litigation as provided in 28 C.F.R.
 35.174.
APPLICABLE LAW
     The Americans with Disabilities Act (ADA), enacted on
July 26, 1990, provides comprehensive civil rights protections to
individuals with disabilities in the areas of employment, public
accommodations, State and local government services, and
telecommunications.  Subtitle A of title II of the ADA applies to
all programs, services, and activities of State and local
governments.
1/In addition to the discriminatory policies and practices
already identified, the Department may want to review the Board's
policies and practices for the scoring of examinations and
certification of individuals with disabilities who pass the
examination.
01-00129
                                -3-
     Section 202 of the ADA (42 U.S.C.  12132) provides that --
          Subject to the provisions of this title, no qualified
     individual with a disability shall, by reason of such
     disability, be excluded from participation in or be denied
     the benefits of the services, programs, or activities of a
     public entity, or be subjected to discrimination by any such
     entity.
     Section 201 defines a "qualified individual with a disability" as -
     an individual with a disability who, with or without
     reasonable modifications to rules, policies, or practices,
     the removal of architectural, communication, or
     transportation barriers, or the provision of auxiliary aids
     and services, meets the essential eligibility requirements
     for the receipt of services or the participation in programs
     or activities provided by a public entity.
42 U.S.C.  12131 (2).
     With respect to licensing, a "qualified" individual with a
disability is one who meets the "essential eligibility
requirements for the receipt of services or the participation in
programs or activities provided by a public entity." 28 C.F.R.
 35.104. The Board does not dispute that individuals who have
requested accommodations are "qualified" to take the bar
examination. While a licensing Board may establish requirements
in addition to its requirements for a written examination, it
must establish that any such requirements that exclude otherwise
qualified individuals with disabilities are "essential." It may
not, however, use an examination to exclude individuals with
disabilities by administering the examination in a manner that
denies those individuals an equal opportunity to demonstrate the
knowledge and abilities that the test purports to measure in
individuals without disabilities.
     Section 35.130(a) of the Department of Justice's regulation
implementing title II (28 C.F.R. pt. 35) restates the general
requirement of section 202 of the statute. The specific
requirements of the regulation apply this general principle to
particular situations. Section 35.130(b)(6) provides that a
public entity may not administer a licensing or certification
program in a manner that subjects qualified individuals with
disabilities to discrimination on the basis of disability. Thus,
the nondiscrimination obligations are specifically applied to the
Board's function of licensing attorneys.
     Section 35.130(b)(1)(ii) provides that a public entity may
not provide a qualified individual with a disability an
opportunity to participate that is not equal to that afforded
01-00130
                           -4-
others. Denial of necessary accommodations violates this
requirement. Compelling an applicant with a disability to take
or threaten legal action in order to obtain a necessary
accommodation also violates this requirement.
     Section 35.130(b)(1)(iii) requires a public entity to
provide qualified individuals with disabilities an "equal
opportunity to obtain the same result" from its programs and
activities as the opportunity provided to individuals without
disabilities. With respect to administration of the bar
examination, an "equal opportunity to obtain the same result" is
an equal opportunity to demonstrate the skills, knowledge, and
achievement that the bar examination is intended to measure.
     Section 35.130(b)(1)(vii) provides that a public entity may
not otherwise limit a qualified individual with a disability in
the enjoyment of any right, privilege, advantage, or opportunity
provided to others. Refusing to provide an accommodation
required by the statute unless an applicant with a disability
takes or threatens to take legal action also violates this
requirement.
     Section 35.130(b)(7) requires a public entity to make
reasonable modifications in policies, practices, or procedures,
when the modifications are necessary to avoid discrimination on
the basis of disability, i.e., to provide a qualified individual
with a disability (as defined in 28 C.F.R.  35.104) an equal
opportunity to demonstrate the skills, knowledge, and achievement
that the bar examination is intended to measure. Modifications
must be provided unless the public entity can demonstrate that
the requested modification, or an equally effective alternative
modification, would fundamentally alter the service, program, or
activity.
     The regulation also requires a public entity to take
appropriate steps to ensure that communications with individuals
with disabilities are as effective as communications with others,
unless the steps would result in a fundamental alteration or in
undue financial and administrative burdens. 28 C.F.R.  35.164.
28 C.F.R.  35.160(a). When an auxiliary aid or service is
necessary to afford an individual with a disability an equal
opportunity to participate in, and enjoy the benefits of, a
service, program, or activity conducted by a public entity, the
public 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 determining
what type of auxiliary aid or service is necessary, a public
entity must give primary consideration to the requests of the
individual with a disability. 28 C.F.R.  35.160(b)(2).
     Also, section 204(b) of the ADA requires that the
Department's regulation implementing subtitle A of title II be
01-00131
                              -5-
consistent with the ADA. Thus,  interpretation of the title II
regulation must be consistent with title III of the ADA,
including section 309, which provides that --
     Any person that offers examinations or courses related to
applications, licensing, certification, or credentialing for
secondary or postsecondary education, professional, or trade
purposes shall offer such examinations or courses in a place
and manner accessible to persons with disabilities or offer
alternative accessible arrangements for such individuals.
     42 U.S.C.  12189. The requirements for examinations under the
Department of Justice's regulation implementing title III at 28
C.F.R.  36.309, therefore, would also apply to this case.
     In addition, because title II of the ADA essentially extends
the nondiscrimination mandate of section 504 of the
Rehabilitation Act of 1973, as amended (29 U.S.C.  794) (section
504)2 to the programs of those State and local governments that
do not receive Federal financial assistance, the interpretations
of section 504 may be referred to in interpreting title II. The
Department of Education's regulation implementing section 504 for
its federally assisted programs and activities, which includes
specific 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 III
regulation provide that tests and examinations must be
administered to individuals with disabilities in a manner that
ensures that
     the examination results accurately reflect the individuals
     aptitude or achievement level or whatever other factor the
     examination purports to measure, rather than reflecting the
     individuals impaired sensory, manual, or speaking skills
     (except where those skills are the factors that the
     examination 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 the
Board's obligations in administering its examination to qualified
individuals with disabilities. The Board must inform applicants
2  Programs and activities of State and local governments
that are recipients of Federal financial assistance from one or
more 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 must
give them an opportunity to provide advance notice of their need
for accommodations. The Board 'may require applicants to submit
appropriate documentation, at the applicants' expense, of their
disabilities and of any modifications or aids that would be
required, provided that the requests for documentation are
reasonable and limited to the need for the modification or aid
requested. Appropriate documentation might include a letter from
a physician or other professional, or evidence of a prior
diagnosis or accommodation, such as eligibility for a special
education program. The applicant may be required to bear the
cost of providing such documentation, but the entity
administering the examination cannot charge the applicant for the
cost of any modifications or auxiliary aids, such as amanuenses,
provided for the examination.
     When an applicant requests accommodations and submits
supporting documentation, the Board may review the documentation
to determine whether the applicant is a qualified individual with
a disability (as defined in 28 C.F.R.  35.104). If the
applicant is a qualified individual with a disability, the Board
must determine what accommodations are necessary to ensure that
the applicant has an equal opportunity to demonstrate the skills,
knowledge, and achievement that the bar examination is intended
to measure. The applicant has the burden of proving that he or
she is an individual with a disability, but, if the applicant
produces documentation from a qualified expert as to the
existence of the disability and the need for accommodations
because of the disability, the Board must provide competent
evidence from a qualified expert to refute the applicant's
documentation. As explained by the court in D'Amico v. New York
State Board of Law Examiners, 813 F. Supp. 217 at 223 (1993),
     the Board must understand that they may not always be
     in the best position to determine what is a reasonable
     accommodation for an applicant who has a disability
     that can only be diagnosed and treated by a physician
     with significant experience and expertise. The Board's
     opinion as to what is "reasonable" for a particular
     applicant can be given very little weight when the
     Board has no knowledge of the disability or disease, no
     expertise in its treatment, and no ability to make
     determinations about the physical capabilities of one
     afflicted with the disability or disease.
     Where there are factual questions about the nature and
extent of the accommodation required, the Board must determine,
on a case-by-case basis, what accommodations will result in an
equal 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 competent
expert evidence where the Board and the applicant cannot agree on
the 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, and
section 505, in turn, incorporates by reference the remedies,
procedures, and rights set forth in title VI of the Civil Rights
Act of 1964 (42 U.S.C. 2000d to 2000d-4a). Title VI regulations
provide for access to records necessary for investigations. See
28 C.F.R.  42.406. Therefore, title II regulations incorporate
these title VI procedures.
FINDINGS OF FACT
     The Department's findings of fact are set out in Attachment
A to this letter.
CONCLUSIONS OF LAW
     1. As an agency of the New York State Court of Appeals, the
New York State Board of Law Examiners is a public entity
providing a program or service in its administration of the New
York State bar examination.
     2. The New York State bar examination is a program or
activity 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 requiring
applicants to submit requests for accommodations 90 days before
the date of the examinations, while permitting applicants who did
not request accommodations to file up to 30 days before the
examination, 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 who
requested accommodations for the February 1992 examination file
their requests earlier than the filing deadline for other
applicants, 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 the
applicant, but the Board refused the requests without
justification based on medical or professional judgment.  The
Board'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 with
disabilities an opportunity to demonstrate the legal knowledge
and legal reasoning skills that the examination purports to
01-00134
                              -8-
measure that was equal to the opportunity provided to individuals
without 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 two
regularly scheduled days, the Board has provided alternative
testing conditions for individuals with disabilities that are not
comparable to the conditions provided for individuals without
disabilities. The conditions provided for individuals with
disabilities are substantially inferior to the conditions
provided for individuals without disabilities and do not provide
individuals with disabilities an opportunity to demonstrate the
legal knowledge and legal reasoning skills that the examination
purports to measure that is equal to the opportunity provided to
individuals without disabilities. These actions violate 28
C.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 provided
the requested accommodation only after individuals with
disabilities undertook or threatened legal action in order to
obtain the accommodations that the individuals' documentation
established were necessary to provide such individuals with
disabilities an opportunity to demonstrate the legal knowledge
and legal reasoning skills that the examination purports to
measure that is equal to the opportunity provided to individuals
without 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 , and
XXX, the Board did not conduct individualized assessments to
determine the modifications required to ensure that the
examination accurately reflected the legal knowledge and legal
reasoning skills of each particular individual with a disability
requesting 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 requesting
or obtaining even informal medical opinions concerning the
applicant's condition or the effect of the condition on the
applicant's testing requirements.
     With respect to mental impairments ( XXX ) and learning
disabilities ( XXX , XXX , and XXX ), the Board relied on informal
unwritten opinions from consultants who had not examined the
applicant and who nay not be experts on the applicant's
particular condition. In the case of XXX , the Board denied all
accommodations requested even though the request was supported by
the Board's own expert, and even though the Board provided
01-00135
                             -9-
accommodation to individuals who were similarly situated but did
not have a disability.
     In each of these cases, the applicant provided supporting
documentation to establish that he or she had a disability and
required accommodations, and the Board denied the accommodations
requested without an adequate factual basis for determining that
the accommodations were not required. These actions violated 28
C.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 required
that applicants with disabilities who needed amanuenses or other
aides or assistants to take the examination to provide and
compensate the amanuensis, aide, or assistant. This action
violated 28 C.F.R.  35.130(f).
REMEDIES
     In order to resolve this case, it will be necessary to enter
into a formal written voluntary compliance agreement that will
provide appropriate remedies for the victims of past
discrimination and will ensure that the types of violations that
occurred in the past will not be repeated. Accordingly, the
Department 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 for
     accommodation, including standards and procedures for
     determining whether the applicant is a qualified
     individual with a disability, and standards and
     procedures for making an individualized determination
     of the accommodations necessary to provide each
     qualified individual with a disability an opportunity
     to participate in and benefit from the bar examination
     that is equal to the opportunity afforded to others.
2.   Compensation for victims of discrimination for
     examinations administered since January 26, 1992,
     including those identified above and all others
     similarly situated. This will require the provision of
     the files for all applicants who requested
     accommodations for examinations administered after
     January 26, 1992.
3.   Specific record-keeping and reporting requirements to
     enable the Department of Justice to monitor the Board's
     compliance with the standards and procedures adopted.
The Department remains open to discussing these issues and
exploring any remedies that could lead to a satisfactory
01-00136
                              -10-
resolution. In that regard, Thomas Esbrook, the investigator
assigned to the case, (202) 307-2940, will be in contact with you
in the near future to ascertain whether the Board is interested
in entering into voluntary compliance negotiations. If the Board
does not wish to negotiate, or if negotiations are unsuccessful,
we are required by 28 C.F.R.  35.174 to refer this matter to the
litigating unit, the Public Access Section, for appropriate
action.
     The Department would appreciate your prompt attention to
this letter.
                                 Sincerely,
                              James P. Turner
                    Acting Assistant Attorney General
                         Civil Rights Division
cc: Ellen J. Fried
Assistant Attorney General
Attachment A
New 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, the
Department received two complaints alleging violations of title
II 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 they
requested for the New York State Bar Examination, scheduled for
July 26 and 29, 1992. Both complainants alleged that the
accommodations they requested were necessary, based on the nature
and severity of their disabilities, and that they had provided
sufficient medical and other justification to support their
requests.
     The Department expedited its investigation of these
complaints because of the imminence of the bar examination. One
of the complainants ( XXX )  filed a private suit against
the Board, and settled out of court when the Board agreed to
provide the accommodation he had requested. The Department
contacted the Board by telephone on July 15, 1992, and the Board
agreed to provide the accommodation requested by the other
complainant for the July 1992 examination and to cooperate in our
administrative investigation. On August 21, we sent the Board a
written data request that included, inter alia, a request for an
on-site review of records in order to obtain the information
covered by the following two items:
1.   Identify all applicants who identified a
disability and applied for special testing accommodations
for the February and July 1992 administrations of the
New York State Bar Examination.
2.   Either submit copies, or make available for review
and copying onsite, all relevant case files for the
individuals identified in item 5, above.
     On September 25, the Board responded to the data request
with a letter raising concerns about our jurisdiction to conduct
an investigation and about the confidentiality of records
concerning applicants. On November 10, 1992, we responded to
these confidentiality concerns by proposing the following
stipulation:
     All papers, records, and documents concerning the
application or examination of any person for admission. as an
attorney and counsellor at law in the State of New York
released to the Department of Justice in the course of our
investigation 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 any
other information provided by the Board shall be used
exclusively for law enforcement purposes and shall not be
disclosed except where necessary in formal enforcement
proceedings or where otherwise required by law. If a
Freedom of Information Ac-E or Privacy Act request is filed
for information obtained from the Board, the Department of
Justice will react or otherwise obscure the name or names
Of individuals, personally identifying information, medical
information, and any other information of which disclosure
would constitute a clearly unwarranted invasion of personal
privacy.
     On December 22, 1992, the Board responded that it was not
satisfied with the stipulation, and suggested that the Department
apply to the Presiding Justice of the Appellate Division in
Albany for release of the records in accordance with Section
90.10 of the New York Judiciary Law. on December 31, we advised
the Board that we considered the stipulation offered in our
November 10 letter to be adequate to meet the Board's concerns
about privacy, and that any procedures the Board considered
necessary under State law requirements to enable it to respond to
our data request were the responsibility of the Board. We
further requested a response to those items in our original data
request that did not involve review of individual applicant
files.
     In the Board's letter of April 30, 1993, the Board
Confirmed that it had applied to the State Appellate Division for the
release of confidential files, that the Administrative Board of
the Unified Court System had recently determined that the Board
could release the information to the Department "so long as the
consent of the individual applicants (is) first obtained," and
that it was in the process of contacting those individuals "in as
expeditious a manner as possible."
     On May 25, 1993, the Department advised the Board that, in
view of the fact that the Board was scheduled to administer
another bar examination in July 1993, the Department had
determined that further delay in concluding our investigation
would be unacceptable. Our letter stated that, unless the Board
agreed to schedule an on-site investigation, to include all
relevant case files for individuals who have sought, or are
seeking, special testing accommodations for examinations
administered 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 with
title 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 returned
their release forms. The Board refused, however, to allow access
to the files of individuals who denied consent to the release of
their files or whose responses had not been received. The
Department accepted the offer of partial access, but advised the
Board that our position concerning our authority to review all of
the documents the Department requested remained unchanged. on
June 4, the Board provided the files of 34 applicants for
inspection and copying, approximately 10% of the 322 applicants
who requested accommodations for the February and July 1992 and
the February 1993 examinations.
     On June 25, the Board made available an additional 26 files
of individuals who consented to release their records to the
Department for this investigation. At that time, James T.
Fuller, Executive Secretary of the Board, stated that 76 people
had given consent for release of their records. Mr. Fuller also
stated that the Board would not provide the files of an
additional 17 individuals, who had consented to their release,
for the following reasons: the Board has taken the position that
it is not liable for any actions prior to the effective date of
title II, January 26, 1992. The files of fourteen individuals
who requested testing accommodations prior to 1/26/92, and who
provided their consent for release of their files, were therefore
not provided. The Board also contested DOJ's authority to
include the July 1993 exam as part of the investigation but
indicated that a letter would be forthcoming from
Ms. Ellen Fried, Board attorney, explaining its position.
     Ms. Fried's letter of July 21, 1993, stated that an
additional 16 files were then available and that the reason these
files were not provided earlier is that they "were either being
used by the Board in connection with the July 1993 exam or the
staff had not had sufficient time to prepare the file." The
letter does not mention the other 246 files, and the Department
understands the Board's position to be that those files will not
be made available for the Department's review.
     The remainder of the July 21 letter discusses the Board's
proposed mailing to applicants who requested accommodation for
the 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 this
letter to the applicants. In response to that invitation, the
Department's letter of June 3, 1993, proposed inclusion of a
statement of the Department's position with respect to the
confidentiality of the records. Ms. Fried's response on June 23
stated that, rather than including the statement in its own .
letter, the Board was requesting that the Department provide a
copy of the statement on Department of Justice letterhead for
inclusion in the mailing. Ms. Fried's letter also stated that
01-00140
                            -4-
the Board intended to state in its letter that "it expresses no
opinion as to the efficacy or the enforceability of the
Department's commitments as to the confidentiality of the
information contained in the files provided to the Department in
connection with post-investigation Freedom of Information Act
(`FOIA') requests."
     The Department determined that providing a copy of the
proposed statement on Department of Justice letterhead, without
additional explanation, could be construed as implying agreement
with the Board's position that the applicants' releases could be
required or as condoning the Board's disclaimer. This
determination was based, in part, on the assertion, in
Ms. Fried's letter of June 2, that the Department's suggested
inclusion of the names and telephone numbers of Department
contacts in the Board's earlier mailing was inconsistent with the
Department's position that consent of the applicants was not
required. The Department therefore responded on July 1 with a
proposed letter to the applicants on Department letterhead for
inclusion in the mailing. Ms. Fried's letter of July 21 objected
to the Department's proposed letter, on the grounds that it
"solicits complaints and advises the applicants of their right to
sue."1 Ms. Fried's letter did not address the Department's
explanation for its rejection of the Board's previous offer.
While the Department understood the Board's objection to
notifying applicants of their rights under the statute, it did
not concur with the Board's position. The Department did not
attempt to dictate the contents of the Board's letter to its
applicants and declined the Board's offer to assist the
Department in preparing a letter acceptable to the Board. The
Board subsequently decided to include the Department's letter in
its mailing to applicants who took the July 1993 examination.
II. THE EXAMINATION
     The New York State Bar Examination is administered twice
each year, in February and July. It is given in two parts over
two 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 provided
by the National Conference of Bar Examiners. Under the standard
procedures, the New York portion of the examination is given from
9:00 AM to 12:15 PM and 1:30 to 4:45 PM on Tuesday and the
multistate 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 the
references in the Department's proposed letter to section 309 of
the ADA (42 U.S.C.  12189) on the ground that title III of the
ADA does not apply to the Board.
1-00141
                             -5-
on Wednesday of the week the test is scheduled. These hours are
extended for individuals with disabilities who are granted
additional time as an accommodation, but the Board generally does
not extend the additional hours over additional days.
     According to a study commissioned by the New York State
Court of Appeals,2 the examination is intended to measure legal
knowledge and legal reasoning ability.3 The information
available did not permit a conclusion on whether the examination
also measures speed,4 but the panel of experts assembled to
assess the content validity of the examination agreed that speed
should 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 to
applicant records. As described in the Board's response to that
request, provision of accommodations for individuals with
disabilities is governed by  6000.4 of the Rules of the Board,
which was revised on November 11, 1992. As revised,  6000.4
states that the Board will provide accommodations in testing
conditions to candidates with disabilities during the
administration of the examination, to the extent such
accommodations are reasonable, consistent with the nature and
purpose 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 policy
limiting the time allowed for individuals with disabilities to a
maximum of time and one-half6 and requiring that all
2/Millman, Mehrens, and Sackett, and Evaluation of the
New York State Bar Examination, a' study commissioned by the
New 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 Multistate
examination is given in two, three-hour sessions, but the .
New York portion consists of two, three-hour and fifteen minute
sessions, so the additional one and one-half hours are actually
less than "time and one half" for the New York portion.
01-00142
                            -6-
examinations be completed within the two regularly scheduled
examination days. Apparently, however, this policy merely
confirmed the Board's practice that was in effect for the
February 1992 examination.
     Under the rule as revised in November 1992, the Board states
that, although it
     expects, in view of considerations such as examination
     validity and security, that most candidates will sit for the
     examination within the standard two-day time frame, the
     Board will consider an their merits requests for time
     allowances in excess of that time frame and make every
     effort to provide accommodations that are reasonable in
     light of the nature and purposes of the examination.
     The Executive Secretary of the Board, Mr. James T. Fuller, has
authority to grant accommodations that do not exceed time and
one-half within the standard two days. Requests for additional
time or testing days must be referred to the Board.
B. Application Procedures
     Prior to November 1992, according to the Board's written
response to the Department's data request, applicants requesting
accommodations were required to inform the Board of the need for
accommodation and provide documentation of the disability claimed
and the relationship of the disability to the requested
accommodations.
     Pursuant to the "new" rule adopted in November 1992, the
examination application packet includes a form for candidates to
request accommodations. The form requires a specific description
of the accommodation requested and documentation from the
diagnosing professional stating the nature of the disability and
the relationship between the disability and the accommodation
requested. Candidates are also required to submit documentation
of the three most recent testing accommodations, if any, provided
by schools or other testing authorities. In addition, the Board
"may, in its discretion, require the candidate to provide
additional information relating to the disability and/or prior
accommodations, and may also require that the applicant submit to
examination by an expert designated by the Board in connection
with 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 examination
will be borne by the applicant unless the Board waives this
requirement "for good cause."
01-00143
                            -7-
C. Auxiliary Aids and services
     The Board has changed its policy with respect to provision
of auxiliary services. Prior to July 14, 1992, the Board
required applicants to retain and pay for readers, writers, and
amanuenses to assist in taking the examination. This policy was
changed before the July examination. The Board will now provide
an assistant or will permit the applicant to select the
assistant, subject to reasonable restrictions. In either case,
the Board now recognizes its responsibility to pay for the
assistance needed.
D. Appeals
     The November 1992 revision to the Board's rules established
procedures for appealing the denial of a request for an
accommodation. The letters sent to applicants denying their
requests, however, do not contain an explanation of the reasons
for 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 for
accommodations 90 days before the date of the examination.
Applicants who did not request accommodations were permitted to
file up to 30 days before the examination. This difference in
deadlines 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, the
Board's filing deadline for applicants not requesting
accommodations was January 27, 1992, one day after the effective
date of title II.
F. Other Policies
     Although we do not have sufficient information to make a
finding with respect to the Board's provision of an accessible
testing location, large print copies of the examination, or
similar accommodations for individuals with physical
disabilities, our investigation generally did not reveal evidence
that the Board discriminates in those areas.
IV. VICTIMS OF DISCRIMINATION
A. Litigation and administrative complaints
     The following qualified individuals with disabilities
received 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 made
its determination, it is more likely than not that the Board's
decision, prior to the filing of the complaint, denied these
applicants accommodations that were necessary to provide them an
opportunity to demonstrate the legal knowledge and legal
reasoning skills that the examination purports to measure that
was equal to the opportunity provided to individuals without
disabilities. Denial of such accommodations without provision of
competent evidence from a Qualified expert to refute the evidence
provided by the applicant violates both the substantive and
procedural requirements of title II. (See D'Amico, 813 F. Supp.
at 223.)
XX8
     The Board denied a request from     for special arrangements
to take the February 1992 bar examination.     provided extensive
documentation to establish that she had a learning disability and
that the accommodations were necessary to afford her an equal
opportunity to successfully complete the examination. The Board
chose not to credit this documentation and determined that    was
not an individual with a disability and, therefore, was not
entitled to accommodation.    then filed a private suit against
the Board (          v. New York Board of Law Examiners,
), which was settled when the Board agreed to provide
the accommodations requested.
XXXX and XXXX
     Two individuals with disabilities, XXX and XXX , filed
administrative complaints with the Department of justice prior to
the administration of the examination on July 28 - 29, 1992. The
Board did not dispute that complainants XXX and XXX were qualified
individuals with disabilities (as defined 28 C.F.R.  35.104)
who were eligible to take the bar examination, and agreed to
provide each complainant with some of the accommodations
requested.
7/The Board's response to the Department's data request
stated that it had allowed more than time and one-half and/or
more than two days for certain candidates for the February and
July 1992 examinations "(i)n connection with litigation and
threatened 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 rendering
him functionally quadriplegic with a resulting low threshold for
fatigue. In applying to take the examination, XXX requested
double time for taking the examination, rest periods, and
additional exam days to allow for the additional testing time and
rest periods.
     On June 19, 1992, the Board advised XXX that he would be
given time and one-half to complete the test on the two
regularly-scheduled testing days. The Board explained that any
rest breaks XXX required must be Taken within the time frame
granted for each test session. XXX subsequently filed suit
against the Board, and the Board-settled the lawsuit by agreeing
to 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 two
hours 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 his
disability, including an expert opinion concerning the specific
accommodations that would be necessary and documents showing that
these accommodations were previously provided in his
undergraduate and law school education. This documentation
suggests that a minimum adjustment for his disability is one and
three-quarters additional time.
     The Board required XXX to take the Woodcock Reading Mastery
Test at his own expense ($500.00) to supplement the documentation
submitted with his application.
     The Board offered XXX an additional one and one-half hours
extension per test session.
     After the Board settled the suit filed by XXX the Department
advised the Board that it was prepared to find the Board in
noncompliance with title II and to recommend that suit be filed
against the Board pursuant to 28 C.F.R.  35.174. The Board
subsequently agreed to provide the full additional time requested
by XXX (one and two-thirds of the standard time, rather than the
one and one-half time it had previously agreed to) and to
cooperate 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 or
the July 1992 examination, it refused to extend the examination
01-00146
                            -10-
to additional testing days. As a result, XXX was required to take
the examination in four, five-hour sessions on the two regularly
scheduled examination days. XXX failed the July 1992 examination.
XXX
     XXX is an individual with a severe visual disability, even
with corrective lenses, that 'makes reading extremely difficult,
and the condition is exacerbated when she reads for extended
periods of time. She requested and received accommodations for
the July 1992 examination, including a large print exam, a
separate testing room, and permission to bring her own lamp and
straight edge and to write her answers on the test booklets,
rather than on the computer answer sheets. She was also
permitted additional time to complete the examination (nine hours
on the first day and nine and one-half hours on the second day),
but she did not request or  receive permission to extend the test
over more than two days.  XXX failed the July 1992 examination.
     XXX applied for the February 1993 examination, requesting
similar accommodations to those provided in July. In addition,
on the advice of her physician, she asked to take the exam over a
four day period instead of two. The Board granted all
accommodations except the four-day testing period, and XXX filed
suit under titles II and III9 of the ADA seeking a preliminary
injunction to compel the Board to provide the additional testing
days. XXX, supra, XXX F. Supp. at XXX .
     The Board did not dispute that the plaintiff was a qualified
individual with a disability and was entitled to accommodations
under the ADA, but argued that allowing her unlimited time to
take the examination within the two regularly scheduled days was
sufficient to meet its obligation. The Board agreed that any
security issues raised by extending the examination over
additional days could be resolved. in making this decision, the
Board rejected the medical opinion of plaintiff's treating
physician, but did not consider or produce any medical opinion or
evidence to contradict the recommendation submitted by the
plaintiff. The court found that "(w)ithout addressing
Dr. XXX medical opinions, the Board, by fiat, determined
that plaintiff Is request was unreasonable and not required."
F. Supp. at XXX . The court granted the injunction, finding that
the Board's decision to disregard the opinion of the plaintiff's
treating physician was "unwarranted and ill-advised and (could
not) withstand scrutiny under the ADA."
9/Section 309 of the ADA applies to "any person" that
offers licensing examinations. 42 U.S.C.  12189.
01-00147
                           -11-
B. Additional victims
     In the following cases, we have determined that the Board
denied accommodations to qualified individuals with disabilities
despite the fact that the preponderance of the evidence (as
provided by both the applicant and the Board) established that
the accommodations were necessary to provide the individual with
a disability an equal opportunity to demonstrate the skills,
knowledge, and achievement that the bar examination is intended
to measure. Denial of such accommodations without provision of
competent evidence from a qualified expert to refute the evidence
provided by the applicant violated both the substantive and
procedural requirements of title II. In these cases, the Board
followed the policy found to be unlawful in D'Amico; it "chose
not to challenge the medical evidence offered to support
plaintiff's request but relied instead on its own so-called
'expertise' in the field of `testing' to dictate what they
believe was 'right' for plaintiff."   813 F. Supp. at 223.
XXX
     XXX originally requested accommodation for the July 1991
examination. She failed that examination and repeated it in
February 1992, with the same accommodations that the Board had
provided in 1991: an additional two hours per session (one and
two-thirds time) over the standard two days, plus a separate room
and permission to bring food into the examination room. she
failed the February 1992 examination and requested additional
accommodations for the July 1992 examination. in support of her
request, she submitted the documentation provided with the 1991
request.
     The documentation submitted in 1991 includes a 1etter from a
neurosurgeon dated September 19, 1989, stating that     had "an
abnormal tangle of blood vessels" in "an extremely delicate part
of her brain" and "is at great danger for further hemorrhages,
which could possibly be fatal." Because the lesion was not
surgically accessible, the neurosurgeon recommended that she
undergo radiosurgery at the University of Pennsylvania or in
Stockholm, Sweden, the only two places in the world that it was
available at that time. The neurosurgeon stated that after the
treatment, the "arteriovenous malformation then shrivels up over
a period of about two years." Also included in the documentation
was a letter from the Specialized Neurosurgical Center at the
Presbyterian University Hospital of Pittsburgh stating that the
treatment was administered on November 21, 1989.
     The documentation also included reports from a
neuropsychologist on the results of tests administered from
01-00148
                            -12-
November 7 through 30, 1990. 10 The neuropsychologist
recommended that essay tests "should be given under untimed
conditions" and expressed hope that XXXX would be provided with
"a bar examination which can be administered under conditions which
will not penalize her for her selective cognitive impairments."
     XXX letter requesting accommodation for the July 1992
examination stated that the accommodations given on the previous
examinations had not been adequate because "the length of time
spent testing each day, 10.5 hrs., is causing me to become ill.
I had seizures on each day of the February (1992) exam." 11 She
therefore requested that the test be given over a four day
period, with three additional hours per session (double time) and
rest 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 its
Chairman, "enclosing copies of a new request for more extensions
... and part of the documentation that was provided by the
candidate in support of her previous request." The letter
describes the accommodations previously provided and the request
for additional time and testing days, and concludes, "Please give
me a buzz when you have looked this over." A handwritten note on
the letter says "Private Room -- 2 hours per session, food and
drink." There is no indication of any other effort to evaluate
the request, and no explanation given for the decision. A
10 The tests administered were: Wechsler Adult
Intelligence Scale - Revised; Halsted Neuropsychologic Battery
for Adults; Reitan-Klove Examination of Sensory Imperception;
Reitan-Harris Lateral Dominance Examination, Including Smedley
Hand Dynamometer; Reitan-Heinneman Aphasia Screening Test; Wide
Range Achievement Tests, Subtests: Reading, Spelling,
Arithmetic; Boston Parietal Lobe Battery, Subtests: Right-Left
Orientation, Map Orientation; Benton, et al., Judgment of Line
Orientation; Benton, et al., Visual Form Discrimination; Benton,
et al., Facial Recognition Test; Trail Making Test, Parts A and
B; 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/Animal
Naming, Reading Sentences and Paragraphs, Complex Ideation
Material; Boston Naming Test; Raven's Progressive Matrices;
Wechsier Memory Scale - Revised; Warrington Recognition Memory
Test and Words and Faces; Benton's Revised Visual Retention Test.
11 Despite these difficulties, XXX s score on the February
1992 examination was 655, only five points below the passing
score.
01-00149
                            -13-
June 25, 1992 letter to XXX from Mr. Fuller offers the same
accommodations that were provided for the February 1992
examination and states that 11(t)he Board has considered your
request and determined that we cannot exceed that which was
previously provided to you."  There is no other medical
information in the file. XXX did not take the July 1992
examination.
XXX
   XXX submitted a letter from his physician confirming that he
is blind in the left eye and that his vision in the right eye
fluctuates from 20/200 to 20/400, with a visual field of less
than 10 degrees. The letter also stated that on good days,
may see well enough to read for half an hour to two to three
hours. XXX requested double time and rest periods "so that I
lessen the likelihood of my vision collapsing during the time the
examination is taken." The Board did not respond to his offer to
provide additional information, if needed, and there is no other
medical information in the file.
   The Board initially agreed to allow him to use an amanuensis
at his own expense12 and to provide a private room and a large
print 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 beyond
the two regularly scheduled days. XXX took the July 1992
examination from 7:30 AM to 12:15 PM and 1:00 to 5:45 PM on
Tuesday, July 28, 1992 and 7:30 AM to 12 noon and 1:00 to 5:30 PM
on Wednesday, July 29, 1992. This amounted to 18  hours of
testing over a 3 4 hour period, with a 4 5 minute break the first
day, a 13 hour and 45 minute overnight break, and a one-hour
break the second day. XXX failed the July 1992 examination.
XXX
     XXX is an individual with chronic progressive multiple
sclerosis who requested accommodations for the February 1993
examination. He submitted a letter from his physician which said
that
          He has visual, brainstem, pyramidal, cerebellar, gait,
     sensory, and sphincter disturbances. He has weakness of his
     upper 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 the
applicant would be responsible for retaining and compensating the
amanuensis. On July 14, Mr. Fuller sent a second letter agreeing
to provide the amanuensis, or to pay for an amanuensis selected
by 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 on
examinations; adjustments to his testing schedule (e.g.
allowing him to take portions of long exams in two sittings
scheduled on separate days); and the use of an assistant as
a "writer." These accommodations were arranged to permit
Mr. XXX the rest periods important to avoiding aggravation
of his condition. In addition, because his condition
results in loss of muscle control, the physical assistance
we provided enabled him to actually write his exams.
Without these accommodations I do not believe Mr. XXX would
have been able to complete his studies at Cardozo.
     XXX requested a "table seated near a bathroom; a test in
large 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 for
additional testing days or time exceeding time and one-half.
There is also no indication that Mr. Fuller or the Board
consulted any medical authority concerning the effect of XXX
condition on his ability to take the examination. A handwritten
note 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, a
large print version of the examination, and an additional one and
one-half hours per session for each day of the examination. The
hours provided were 7:30 AM to 12:15 PM and 1:00 to 5:45 PM an
Tuesday, February 23, and 7:30 AM to 12 noon and 1:00 to 5:30 PM
on Wednesday, February 24. This amounted to 18@, hours of testing
over a 34 hour period, with a 45 minute break the first day, a 13
hour and 45 minute overnight break, and a one-hour break the
second 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 learning
disability. In support of her request, she submitted psycho-
educational evaluations from April 1989 and April 1992. The 1989
evaluation was done by an educational consultant at the Reading
and Learning Disorders Center in Rochester, Hew York, who
administered a number of tests, including the Wide Range
Achievement Test, subtest of word recognition; the Peabody
Individual Achievement Test, subtest of word recognition; the
Peabody Picture Vocabulary Test, Form L; and the Peabody reading
comprehension test. Based on the results of these and other
tests, the consultant recommended that XXX should "have time
01-00151
                            -15-
constraints waived" on "tests that require reading speed and
comprehension" and "should not be judged by timed reading tests
or tests that require an individual to function within a specific
time."
The 1992 evaluation was conducted by Dr. XXX , a
consulting psychologist at the Health Science Center in Buffalo,
New York. Dr. XXX administered the Woodcock Reading Mastery
Tests-Revised (WRMT-R), because XXX had been told that the Board
required that test. He noted, however, that the Woodcock test
     is not sensitive to XXX particular disabilities in
     that it has only minimal timing demands. One might say
     that it is a test of power rather than speed.     `s
     problems 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 that
her reading speed is well below average because of "weaknesses in
short-term language processing for which she has compensated
well, but only by focusing intently on what she reads and thereby
sacrificing speed." These comprehension problems did not
on the WRMT-R because it is not timed. Nevertheless, Dr.XXX
found that "the conclusion is inescapable that ( XXX ) is reading
disabled" and should be given special accommodations in timed
testing situations.
     Prior to the July 1992 examination, the Board requested an
opinion from its expert, Dr. Frank Vellutino, Director of the
Child Research and Study Center, 13 in Albany. The copy of the
letter to Dr. Vellutino in the file has a hand-written note
saying --
P/C Frank V. 5/13/92
She should not be considered disabled
The records relating to the July 1992 examination do not contain
any other information concerning XXX learning disability or its
effect on her ability to take the examination. The Board denied XXX
request for accommodation for the July 1992 examination, and
she did not take the examination at that time.
13/Dr. XXX, the psychologist who administered the
Woodcock to XXX, that the Woodcock is used to diagnose
learning disabilities in children and is not appropriate for
adults because adults with learning disabilities have learned to
compensate for weaknesses in the areas measured by the Woodcock.
He stated that psychologists who work exclusively with children
may not be familiar with learning disabilities in adults and,
therefore, may not be qualified to diagnose adults with learning
disabilities.
01-00152
                            -16-
     XXX applied to take the February 1993 examination and sought
the same accommodations (double time and a separate testing room)
that she had previously requested. She submitted the same
evaluations that she had submitted for the July examination. She
also submitted a letter citing the ADA and the cases filed
against the Board by other applicants. The letter did not
explicitly threaten litigation, but did indicate that XXX was
aware of her rights under the statute and that she was willing to
exercise them.
The Board again consulted Dr. Frank Vellutino, who had
determined that XXX "should not be considered disabled" prior to
the 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 the
Woodcock Reading Mastery Tests required by the Board, included
timed tests. (Because he had not prepared a written opinion
prior to the July 1992 examination, there is no evidence on
whether he had considered those tests in arriving at his previous
conclusion.) For the February 1993 examination, Dr. Vellutino
concluded that XXX "does have marginal reading skills" and "would
be encumbered under time conditions compared to those who have
less marginal skills." He therefore recommended giving XXX
additional time on the examination. Thus, after a thorough
examination of the documentation submitted by XXX for the July
1992 examination, the Board's own expert concluded that she would
not have an equal opportunity on the examination without
accommodation.
In response to Dr. Vellutino's January 1993 opinion, the
Board provided XXX a private room and double time for the
February examination (but noted that those accommodations would be
provided for that examination only and did not "constitute a
commitment" for future examinations). Also, the Board did not
allow the double time to be used on additional testing days.
XXX testing times, therefore, were 7:00 AM to 1:30 PM and 2:30
to 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 testing
time was 25 hours in a 37 hour period, allowing two, one-hour
meal breaks and a ten hour overnight break. XXX failed the
February examination.
The Department consulted Dr. XXX about his experiences
with the Board. He volunteered that he had learned that XXX was
allowed double time on the February 1993 examination, but
required to take the examination in two days. He stated that
such extended hours of testing would inevitably have an adverse
effect on the results and that, regardless of disability, taking
a test for twelve hours in one day is not equivalent to taking
the same test for six hours on two consecutive days. Thus, even
after concluding that XXX was an individual with a disability
entitled to accommodation, the Board failed to provide testing
01-00153
                         -17-
conditions that gave XXX an equal opportunity to demonstrate the
legal knowledge and legal reasoning skills that the examination
purports to measure.
XXX
   XXX took and failed the examination in February 1985, 7uly
1985, February 1986, July 1986, and July 1987 without requesting
any accommodation. In February 1993, she reapplied, requesting,
on the basis of her disability, "bipolar disorder (manic
depression)," "relaxed time requirements, private or semi-private
testing location, nearness to lighting and restrooms, proctors
who do not talk during the Exam and who provide materials
readily." In support of her request she submitted a one-page
letter from her psychiatrist, Dr. XXX , of the XXX
Psychiatric/Counseling Group, who confirmed the diagnosis and
supported "the accommodations requested by" XXX . The letter also
said --
     This condition in no way affects her intelligence. She is
     diligent about taking her medication and is alert to
     increasing or decreasing the medication as her condition
     warrants. ... She requires a relaxed time management as her
     thinking and writing processes slow down under stress.
I strongly support your consideration for her special
needs in this testing (stress) situation.
     The letter also said that the disorder "can be triggered by
certain levels of stress" and that Ms. XXX takes Lithium plus
Stelazine "as needed if disturbing thoughts arise. These
thoughts, too, are kicked off by extra stress." The Board did
not contact Dr. XXX or request additional documentation from
the candidate.
     Mr. Fuller sent the psychiatrist's letter to a psychologist
at the Phobia and Anxiety Disorders Clinic at the University at
Albany, State University of New York, and requested "an
evaluation of the documentation provided as well as your opinion
as to whether the requested accommodations are reasonably related
to the claim of manic depressive disorder." The psychologist
responded by telephone. On January 21, 1993, Mr. Fuller
described his report in a letter to the members of the Board as
follows:
     In the case of XXX , Dr. Brown indicates that Lithium
is commonly prescribed for manic depressives and that the
dosage that she takes is relatively high. The presence of
the second drug, Stelazine, which is an anti-psychotic
medication for the disturbing thoughts would seem to
indicate 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, a
clinical professor of psychiatry at Georgetown university Medical
School, who stated that it is not appropriate to consult a
psychologist for an opinion on an individual who is taking
medication; an opinion from someone who is an expert in the field
for which the medication is given, in this case, a psychiatrist,
would be required. He also indicated that Ms. XXX would be
vulnerable to stress because of her illness and that
additional time should have been allowed. Dr. XXX , XXX
psychiatrist, agreed that a psychologist is not an appropriate
expert for evaluating bipolar disorder.
On January 26, 1993, Mr. Fuller advised XXX that
     The Board has considered the documentation that you
have provided, and has consulted with an expert in the
field. Based on that documentation and expert advice, and
after consideration of the nature and purpose of the
examination, the Board has concluded that the accommodations
you have requested are not reasonable. Your request for
accommodations is, accordingly, denied.
The letter contains no mention of the right to appeal.
     Although the Board's own expert confirmed that XXX had a
bipolar disorder, that the disorder might result in
"distractibility," and that some accommodation for
distractibility would be Appropriate, the Board refused to
provide any accommodation.
     The refusal to provide any accommodation is particularly
striking because some of the accommodations requested are the
type that the Board has provided to other applicants without
question 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 basis
for the request or its relationship to the disability. According
to Dr. XXX , I no one connected with the Board ever contacted him
for 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 frequent
urination, which is a side effect of XXX medication. 15
     In contrast, the Board provided a special room "in close
proximity to restrooms" and an additional one-half hour per
session (one and one-sixth of the standard time) for XXX, who took
the examination in July 1992. XXX had submitted a request16 for
access to a restroom and extra time to make up for time lost due
to frequent urination because she was seven months pregnant at
the time of the examination. The request was supported by a
letter from her obstetrician. Because pregnancy is not a
disability under the ADA, XXX was an individual without a
disability who was granted accomodations (special seating and
extra time) that were denied to XXX , who is an individual with a
disability and was similarly situated to XXX her need for
restroom access and extra time.
     XXX, who took the examination in February 1992 and February
1993, also requested restroom access and additional time because
of a need to urinate frequently due to "urinary problems"
(confirmed by a letter from a physician). He was also provided
special seating and an additional one-half hour per session,
although there is not sufficient information in the file to
determine whether the "urinary problems" would be considered a
disability under the ADA.
Th   e Board also denied XXX request for a private or semi-
private testing room. In contrast, it granted a request for
special seating for the July 1992 for examination XXX , on the
basis of a note from a physician stating that XXX was wearing "a
long leg cast due to a torn Achilles tendon." The Board also
provided restroom access for XXX , although it was not specifically
requested. There is no information in the file to indicate that
XXX was an individual with a disability, as defined in the ADA.
Temporary conditions, such as pregnancy or a torn Achilles
tendon, are generally not considered disabilities, unless their
duration is expected to be substantial. In the cases of XXX and
XXX, although they may have been "impaired" at the time of the
examination, they had the option of taking the examination at a
later time, an option not available to XXX because her disability
has no similar time limitation.
     XXX failed the February 1993 examination.
15/Because the Board-Is expert was a psychologist, not
licensed to prescribe medication, he would not be required to be
familiar with the side effects of psychoactive medication.
16/The request was submitted on July 14, two weeks before
the examination, and, therefore, was untimely under the Board's
rules.
01-00156
Attachment B
New York Board of Law Examiners
VICTIMS OF DISCRIMINATION
XXX-XXX             (learning disability)
XXX-XXX                     (orthopedic impairment)
XXX-XXX                      (learning disability)
XXX-XXX                     (vision impairment)
XXX-XXX                          (brain damage)
XXX-XXX                    (vision impairment)
XXX-XXX                       (multiple sclerosis)
XXX-XXX                     (learning disability)
XXX-XXX                    (bi-polar disorder)
APPLICANTS WHO RECEIVED TESTING ACCOMMODATIONS
XXX-XXXX
XXX-XXXX
XXX-XXXX
01-00157