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The 2nd U.S. Circuit Court of Appeals on Wednesday backed off its earlier order directing the New York State Board of Law Examiners to provide special accommodations on the bar exam to a woman with dyslexia. The appeals court sent the case back to the New York Southern District for further proceedings after reconsidering the matter, which it was ordered to do by the U.S. Supreme Court last spring. The Supreme Court had instructed the 2nd Circuit to re-examine its 1998 ruling affirming an order requiring that the dyslexic woman, Marilyn J. Bartlett, who had failed the bar exam five times, be provided twice the normal time to take the test, and be permitted to type her answers on a computer. The Supreme Court had directed the appeals court to look at the case anew, in light of a trio of rulings it had issued last spring requiring courts to assess the effects of corrective measures in weighing disability claims. Judge Sonia Sotomayor had ordered the Law Examiner to give Bartlett more time and the use of a computer in 1997 after a 21-day trial. Sotomayor has since been appointed to the 2nd Circuit. In its 1998 affirmance, the 2nd Circuit had concluded that Bartlett was entitled to relief under federal laws prohibiting discrimination against the disabled because her dyslexia caused a substantial impairment in a major life activity: reading. In reconsidering the matter, Judge Thomas J. Meskill acknowledged that the court had not considered Bartlett’s ability to “self-correct” her reading skills deficit in its original determination that reading problems entitled her to accommodations on the bar examination. Bartlett had earned a Ph.D. in educational administration from New York University and a law degree from Vermont Law School. Because Bartlett had used phonetics in her teaching, Judge Meskill pointed out in Bartlett v. New York State Board of Law Examiners, 97-9162, she had developed the ability to compensate for some of her deficits, but still reads in a halting manner. PROPER LEGAL TEST On remand, the proper legal test is to determine whether her slow reading rate substantially limits her in comparison “to most people,” Meskill wrote. At trial, Bartlett had shown she was at a disadvantage as compared to a college freshman. Judge Eugene H. Nickerson, sitting by designation from the Eastern District of New York, concurred in the opinion. Judge Jose A. Cabranes agreed with the remand on the question of whether Bartlett was substantially impaired with respect to her reading ability. But he differed with a separate part of the majority’s opinion that ordered more trial proceedings on the question of whether Bartlett’s dyslexia substantially impaired her ability to find work. Sotomayor had found that Bartlett was entitled to “a level playing field on the bar examination,” because without it she could not get access to a substantial class of jobs in the legal field. Bartlett had failed to pass the bar examination when the Law Board had offered her several accommodations — time and a half to take the test and a scribe to record her answers — on the condition that a passing grade would only count if she won her lawsuit. The fact that she failed the exam after being afforded the accommodations, the majority observed, did not necessarily indicate that factors aside from Bartlett’s dyslexia were responsible for her inability to pass the examination. On any given day, the court noted, even a qualified candidate could fail the examination. In addition, it said, Bartlett was not accustomed to working with a scribe. However, Cabranes objected, saying that, by allowing Bartlett to show that she was hobbled in her “test-taking” skills, the court was “making it significantly easier for Bartlett — and similarly situated candidates for any number of tests like the bar examination, including the Law School Aptitude Test, the Medical College Aptitude Test and the U.S. Medical Licensing Examination — to prove that she is disabled under the ADA [Americans with Disabilities Act].” The Law Board was represented by State Attorneys General Robert A. Forte and Deon J. Nossel. Bartlett was represented by Jo Anne Simon, Ruth Lowendron, Roberta Mueller, Marianne Engelman Lado and John A. Gresham of the New York Lawyers for the Public Interest.

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