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After failing the New York state bar examination five times, Marilyn Bartlett is considering a sixth attempt, now that the long-running matter of Bartlett v. New York State Board of Law Examiners (93 Civ. 4986) has been settled in her favor. Bartlett, a 1991 graduate of Vermont Law School whose reading ability is severely impaired by dyslexia, will be granted twice the ordinary two days’ time to take the bar exam, if she takes it again. “If you asked any attorneys 12 years out of law school, Would you like to take the bar exam again?, they’d tell you you’re nuts — in a polite way,” said Bartlett, 55, who is verbally fluent in German and holds a Ph.D. in school administration from New York University. “But I am one of those people who must conquer every hurdle. So I’m tempted. So I’m giving it very considerable and serious thought. “I haven’t quite decided — I’m ensconced in academia,” said Bartlett, who works as coordinator of educational administration for the New York Institute of Technology. “I’d have some major studying to do. Of course, I’m eligible for a sabbatical in another year.” Bartlett’s struggle because of her neurological disorder began in her native Malden, Mass., when the nuns in grade school complained to her parents Joseph and Louise that she was not applying herself. “There was no question we’d fight,” said Bartlett. “If you look in the dictionary under ‘perseverance,’ it says Joe and Louise Bartlett.” Bartlett and her lead attorney, the equally persistent Jo Anne Simon of Brooklyn, received some good news during Christmas week. The Board of Law Examiners quietly withdrew all further challenges to Bartlett’s demand for special accommodation on the exam, and Judge Sonia Sotomayor, now of 2nd U.S. Circuit Court of Appeals, approved a settlement of nearly $1 million in attorney fees, to be divided among Simon and her co-counsels from New York Lawyers for the Public Interest. The litigation began in 1993, when Simon brought suit in the Southern District of New York under the Americans with Disabilities Act. Judge Sotomayor, who then sat on the district court, initially ruled for Bartlett in 1998, but the New York Solicitor General appealed that decision to the 2nd Circuit and the U.S. Supreme Court. Trial was remanded to Judge Sotomayor in 2001, and the settlement talks droned on — mostly about the matter of attorney fees, said Simon — until the holidays now ended. “It’s a marvelous win, but not just for me,” said Bartlett. “It’s for all the young learning disabled students in the Second Circuit, and it’s [precedent] for the rest of the country. “My battle has been waged,” she added, “so that others will not have to fight for their rights the way I had to.” The Board of Law Examiners declined specific comment on the settlement. The board has an established policy of granting accommodations to exam-takers with disabilities, according to a spokesman in Albany. The board reviews applications on a case-by-case basis, the spokesman said, when applicants to the bar ask for such consideration as extra time for rest breaks, smaller testing environments and use of computers. A few hundred such requests are made annually. Like her client, Simon came to the law later in life. Following a career on Wall Street and teaching the deaf, Simon, 50, graduated from Fordham University School of Law in 1990. Three years later, she led Bartlett’s cause. “A lot of people felt strongly about it, and a lot of people helped,” said Simon, a solo practitioner who specializes in disability law. Among the attorneys assisting Simon were Ruth Lowendron, Roberta Mueller, Marianne Engelman Lado and John A. Gresham, all with New York Lawyers for the Public Interest; and Robert Lewin, James McGovern, Kevin J. Curnin and James T. Cunningham, of Stroock & Stroock & Lavan. In addition, amicus briefs were filed by a dozen national and international associations for people with dyslexia and other disabilities. BRAIN WIRING “People really think that dyslexia is a euphemism for some level of mental deficiency, and that’s where the tinge and the taint comes in,” said Simon. “Dyslexia has to do with how the wiring works in your brain, and how you’re able to handle text.” On the fourth occasion she attempted the bar exam, the law board gave in partly to Bartlett’s requests for special accommodation by providing her extra time — not all she requested — and a private room and the presence of a scribe to write down answers as she dictated them. All such arrangement was agreed to in court merely a day before the exam, leaving no time for Bartlett to work in advance with her scribe on such things as Latin legal phrases. A hotel adjacent to Madison Square Garden was engaged for private quarters, and Bartlett persuaded a retired New York University professor to assist as scribe. The law board proctor allowed no coffee in the room during the six-hour stints of exam-taking, and smoking was prohibited — a special difficulty for the professor. “But there was the proctor, sitting on the bed I sat on, crunching on potato chips and drinking soda,” Bartlett recalled. “I myself had a bit of a Dougal,” she said, referring to a long-ago relative named Douglas who was famously misanthropic, “and Jo Anne was livid.” Her fifth time at failing the bar, in July 1999, came at a time when Bartlett’s husband, Paul Cullinan, was freshly back home in Long Island after recovering from cancer surgery. Bartlett, whose schooling began in the 1950s before learning disabilities were delineated and before the term had even been coined, has spent a lifetime inventing her own symbols and pictures to overcome the difficulty of making sense of printed words. For example, she has had occasion on the job to lecture school administrators on tort law as it applies to students. At such times, she uses pictures clipped from magazines to “mask” her inability to read aloud, as she puts it, and to prompt “my perfect ability at jaw-flapping.” “Lucky for me, in my [Irish] milieu, people were telling stories all the time,” said Simon. “I learned to appreciate the spoken word, and to capitalize on it.” As a girl, she said, her mother and father read to her constantly. Every evening, she said, “They made sure I was not just prepared for school the next day, but well-prepared.” Bartlett’s mother, Louise, died in 1995 as the lawsuit was advancing toward initial trial. But Joseph Bartlett, the retired deputy chief of the Malden Fire Department, celebrated his daughter’s great victory this Christmas. “When I took the bar the first time and didn’t pass, my mother was in a nursing home with multiple sclerosis,” said Bartlett. “So there she is, a quadriplegic in a wheelchair, her hands folded as I walk into her room. She took one look at my face and said, ‘You didn’t pass, did you?’ I said, ‘No, Mom.’ She said, ‘So when’s the next exam?’” There are challenges ahead for Simon, too, although she admits some feelings of separation anxiety. “I’m still getting used to not having Bartlett on my time sheet,” said Simon. For the future, and now possessed of the wherewithal from a hefty settlement on fees, she added, “With regard to the Americans with Disabilities Act, there are a lot of issues out there yet to be determined. In my opinion, the courts have not understood what the law was meant to do. That’s not surprising. In any kind of civil rights struggle, these things take time to evolve.” Notwithstanding the list of celebrated dyslexics, including Albert Einstein, Bartlett said, “I’m Irish, you understand. If I could wave a magic wand, I would be able to read for pleasure.”

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