Amicus Curiae Brief — New York State Board of Law Examiners v. Bartlett

| Supreme Court, Ta

FILED

MAR 1

No. 98-1285 | 7

' GLERK

IN THE

Supreme Court of the United States

OcTOBER TERM, 1998

NEW YORK STATE BOARD OF LAW EXAMINERS,

JAMES T. FULLER, JOHN E. HOLT-HARRIS, JR.,

RICHARD J. BARTLETT, LAURA TAYLOR SWAIN,

CHARLES T. BEECHING, JR. and IRA P. SLOANE,

Petitioners,

v.

MARILYN J. BARTLETT,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Second Circuit

BRIEF OF AMICUS CURIAE NATIONAL

CONFERENCE OF BAR EXAMINERS

IN SUPPORT OF PETITIONERS

RoBERT A. BURGOYNE

Counsel of Record

Of Counsel: KarEN M. Moran

Erica MOESER FULBRIGHT & JAWORSKI L.L.P.

NATIONAL CONFERENCE Attorneys for Amicus Curiae

of Bar EXAMINERS National Conference of Bar Examiners

333 North Michigan Avenue 801 Pennsylvania Avenue, N.W.

Suite 1025 Washington, DC 20004-2615

Chicago, Illinois 60601 (202) 662-0200

(312) 641-0963

151829 @ Counsel Press LLC

FORMERLY LUTZ APPELLATE SERVICES

(800) 274-3321 * (800) 359-6859

54 eo

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QUESTION PRESENTED

This case involves the decision of a state licensing board

to deny testing accommodations requested by a prospective

examinee. The board’s decision was based upon an evaluation

of the examinee’s disability documentation by a third-party

expert. Three questions are presented in the Petition for a

Writ of Certiorari. This amicus brief, however, addresses only

the second question presented by the Petitioners.”

The question addressed here is whether, in conflict with

decisions of the Fifth, Eighth, Ninth and Eleventh Circuits,

the Court of Appeals for the Second Circuit erred in

concluding that a defendant can be held liable for

compensatory damages under Title II of the Americans with

Disabilities Act of 1990, 42 U.S.C. § 12132, and Section 504

of the Rehabilitation Act of 1973, 29 U.S.C. § 794, absent a

finding of bad faith, discriminatory animus, gross

misjudgment, or knowledge of improper conduct.

* The third question addressed in the Petition relates to the scope

of the Rehabilitation Act, which applies to recipients of “federal

financial assistance.” Although not addressed in this brief, that

question appears to implicate the Court’s recent decision in National

Collegiate Athletic Ass'n v. Smith, 67 U.S.L.W. 4130 (Feb. 23, 1999),

decided after the filing of the Petition in this case.

il

TABLE OF CONTENTS

Page

Question PrOBGRGRG | ..55.o 502 ika coords eae i

Table Of Combes oo. icc cecanewee cae es ecient li

Table of Cited Amthonities oo. oe iis conccceucusen ill

Interest Of Ansicas Comte. oo cc's . iccwiin dub eekcss ]

FACS 0. cccccvcgat snags Chemeee ae ta een 4

Reasons for Granting the Writ .................. 8

I. The Issue Has Widespread Significance. .... 8

Il. The Second Circuit’s Standard For Imposing

Compensatory Damages Conflicts With

Decisions From The Fifth, Eighth, Ninth And

Bioventia CHOUIRE.: beck ak cs heen vee 12

Comehesseh onc cccccosdosduwenssw een eco 18

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TABLE OF CITED AUTHORITIES

Page

Cases:

Bragdon v. Abbott, 524 U.S. 624, 118 S. Ct. 2196

(Ls Ee ais ee ee 2 a ne a aon 2

Carter v. Orleans Parish Pub. Schs., 725 F.2d 261

SC AEE Gib phe kav Ns de Osha v eds oe eke 13

Doe v. New York Univ., 666 F.2d 761 (2d Cir. 1981)

DEAN nen a kT RP w a CR See Eee RN RUN eh 17

Ferguson vy. City of Phoenix, 157 F.3d 668 (9th Cir.

RAIS ASE IER Pamir aliases PSN Seah er Ue Pepe 14, 15

Garro v. State of Connecticut, 23 F.3d 734 (2d Cir.

eee aya Liles ke pte WA's Va bo eae 8 0 17

Guardians Ass'n v. Civil Serv. Comm'n of New York,

MRR EOE voc kc kaedcatwcceeveds 12

Hoekstra v. Independent Sch. Dist. No. 283, 103 F.3d

624 (8th Cir. 1996), cert. denied, 520 U.S. 1244

CRTR To ERS ER CETING A PERRET REAR Va dew eee’ 13, 14, 15

Hoover v. Ronwin, 466 U.S. 558 (1984) .......... 4

Jacobsen v. Tillman, 17 F. Supp. 2d 1018 (D. Minn.

Oo EESARRS ia ECAR Ua Gr oa aS en 12,17

Jones v. American Council on Educ., No. 98-592-A-

M2 (M.D. La.) (filed June 30, 1998) ........... 10

iv

Cited Authorities

Page

Kaltenberger v. Ohio College of Podiatric Medicine,

562 F206 S50 (oie Cit. SSG) ks ihe ee ei es 16, 17

Marvin H. v. Austin Indep. Sch. Dist., 714 F.2d 1348

by Ne AD | 2) SRA peenmeres p uly Bane Leger bare ye 13, 15

McGregor v. Louisiana State Univ., 3 F.3d 850 (Sth

Cir. 1993), cert. denied, 510 U.S. 1131 (1994) .. 17

Memmer v. Marin County Courts, _ F.3d __, 1999

U.S. App. LEXIS 3333 (9th Cir. March 3, 1999)

5 vs base fa eis WR ote bak we we Seale ee ne tae es 14, 15

Middlesex County Ethics Comm'n v. Garden State Bar

Ale GOT Vics SS CEE): a hac een ee 12

Monahan vy. State of Nebraska, 687 F.2d 1164 (8th Cir.

1982), cert. denied, 460 U.S. 1012 (1983) ...... 13

National Collegiate Athletic Ass'n v. Smith, 67 USLW

BI FR Ur Os 236 AEs Nis acd £ioeaaeeeiie i

Price v. National Bd. of Medical Examiners, 966 F.

sane. 4E9 (SD. WV. S98 Te oi steve gees 12

Ramachandar vy. Sobol, 838 F. Supp. 100 (S.D.N.Y.

ho) A ga We ga OPO ag arama Wein ta Ie Serer 12

Regents of the Univ. of Michigan v. Ewing, 474 U.S.

ZAG APOE 0. cose veces hee Wb eee een 17

Cited Authorities

Page

Sellers v. School Bd. of City of Manasas, Va., 141 F.3d

524 (4th Cir.), cert. denied, 119 S. Ct. 168

‘Se | BR ee re renee barre esre yh ree) te ny ies 14

Theriault v. Flynn, 162 F.3d 46 (1st Cir. 1998) .... 12

Wood v. President & Trustees of Spring Hill College,

976 F.26 1254-1 Cir. T9P 2) aa ci eee ae 15

Wynne v. Tufts Univ. Sch. of Medicine, 976 F.2d 791

(ist Cir. 1992), cert. denied, 507 U.S. 1030 (1994)

as Whisk eWa.b Heed SIAM abies cba e awe eee bas 17

Zukle v. Regents of the Univ. of California, F.3d __,

1999 U.S. App. LEXIS 2702 (9th Cir. 1999) .... 17

Statutes:

ae Une EE oss Fac cok tute eenieeneeee eal 9

SF Ueda CO Aes bab ocibo ns dgeh du samen passim

FAUBS.. 3 DEPRES 3:2) cone n50s be cues pe pkweenl 9

42 UB Rr ARTETA Fido bs 6 Cae ge here peerean passim

42 USE 4288S As SE 5 be ST ee 2

AF USE. 332108 SOP 2

vi

Cited Authorities

Other Authorities:

26 C.F RR. Part SO 01ST oe eae ee ee

L. Eichhorn, “Reasonable Accommodations and

Awkward Compromises: Issues Concerning

Learning Disabled Students and Professional Schools

in the Law School Context,” 26 J. of Law & Educ.

SE EGIL} nck ile ky oes beeen a eee

Note, “Learning and Mental Disability Protection Under

the Americans with Disabilities Act in the Quest for

Certification for the Practice of Law,” 10 J. Law &

Heaith-209 (199S/T9SS) os Se we ee

Note, “Toward Reasonable Equality: Accommodating

Learning Disabilities Under the Americans with

Disabilities Act,” 111 Harv. L. Rev. 1560 (1998)

oe2eaeees 6'@ 6-6 °¢ 16.@ @/@'. 8-658 & 16-9 .6/4 6.86 0. 20 t. Oe Ee ee eee

S.F Phillips, “High Stakes Testings Accommodations:

alidity Versus Disabled Rights,” Applied

Measurement in Education, 7(2) (1994) .......

Standards for Educational and Psychological Testing

(1991 ed.) (published by the American Educational

Research Association, the American Psychological

Association, and the National Council on

Measurement in Education) ...............e6-

Page

1]

11

10

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a ens

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INTEREST OF AMICUS CURIAE

With the written consent of all parties, the National

Conference of Bar Examiners (“NCBE”’) respectfully submits

this brief as amicus curiae in support of the Petition for a

Writ of Certiorari.'

Founded in 1931, the NCBE is an independent, non-profit

corporation whose broad purpose is to assist in the process

by which individuals are admitted to practice law in the

various states and the District of Columbia. In furtherance of

this purpose, the NCBE provides development, research and

support services to boards or committees of bar examiners

(referred to herein as “Boards”) who regulate the bar

admissions in their respective jurisdictions.

Of relevance here, the NCBE provides high quality

standardized examinations that jurisdictions can use as part

of their bar examination process. The most widely used

examination developed by the NCBE is the Multistate Bar

Examination (“MBE”), a multiple choice examination

currently used in 52 jurisdictions, including New York. The

NCBE also develops the Multistate Essay Examination

(“MEE”) (used in 13 jurisdictions), the Multistate

Professional Responsibility Examination (“MPRE”) (used in

52 jurisdictions), and the Multistate Performance Test

(“MPT”) (used in 18 jurisdictions). With the exception of

the MPRE, which the NCBE administers, these examinations

are administered by the Boards in each of the user

jurisdictions.

1. NCBE’s counsel hereby confirm that they wholly authored

this brief and that no person or entity other than the NCBE has made

any monetary contribution to the brief’s preparation or submission.

2

Title III] of the Americans with Disabilities Act (the

“ADA”) requires, in relevant part, that any

person that offers examinations or courses related

to applications, licensing, certification or

credentialing for secondary or post-secondary

education, professional, or trade purposes shall

offer such examinations in a place and manner

accessible to persons with disabilities or offer

alternative accessible arrangements for such

individuals.

42 U.S.C. § 12189. Title III thus applies to the NCBE.

Title II of the ADA prohibits “public entities” from

discriminating against disabled individuals with respect to

the public entities’ services, programs and activities.

42 U.S.C. § 12132. Title II thus applies to the New York

State Board of Law Examiners (the “New York Board” or

the “Board”’). If a Board receives federal financial assistance,

it might also be subject to Section 504 of the Rehabilitation

Act, which prohibits disability discrimination by recipients

of such financial assistance. 29 U.S.C. § 794.

The ADA was modeled after Section 504 of the

Rehabilitation Act. The relevant standards for determining

whether disability discrimination has occurred are essentially

the same under both statutes. See 42 U.S.C. § 12133; Bragdon

v. Abbott, 524 U.S. 624, 118 S. Ct. 2196, 2202 (1998).

2. The NCBE is not governed by Title II of the ADA because it

is a private corporation. It is not governed by the Rehabilitation Act

because it does not receive federal financial assistance.

3

In 1998, the NCBE administered the MPRE to 68,232

bar applicants. The NCBE provided disability-related

accommodations to 531 of those applicants, 299 of whom

had cognitive/mental impairments. The NCBE thus has a

significant interest in how the ADA is interpreted and applied

with respect to bar examinations. This interest is direct in

the case of the MPRE, which the NCBE administers, and

indirect, but no less substantial, in the case of the MBE and

the other NCBE examinations which Boards administer in

user jurisdictions.

In the present case, the United States Court of Appeals

for the Second Circuit held, among other things, that even if

a testing agency hires an acknowledged expert and uses

reasonable and acceptable metliods for determining, in good

faith, whether an individual examinee has a learning disability

requiring testing accommodations, the testing agency can still

be held liable for intentional discrimination, and therefore

compensatory damages, if a court later determines, based on

conflicting expert testimony, that the examinee did, in fact,

have a learning disability. App. 19a-20a. The Second Circuit’s

standard for intentional discrimination conflicts with

decisions of the Fifth, Eighth, Ninth and Eleventh Circuits

and creates the equivalent of strict liability for violations of

the federal disability laws. It places state boards of bar

examiners and testing organizations such as the NCBE in an

untenable position, while doing little or nothing to further

the purposes of the federal disability statutes.

During the years 1992 through 1993, the New York Board

received 109 requests for testing accommodations from

individuals who stated that they have learning disabilities.

The Board granted 84 of those requests and denied 25, one

of which was Ms. Bartlett’s. The possibility of even a handful

4

of those 25 denials resulting in litigation, despite the Board’s

best efforts both to comply faithfully with federal law and to

maintain the integrity of its examinations, is a very disturbing

prospect. Moreover, New York is but one jurisdiction, and

the numbers referenced above relate to only a two-year period.

Other jurisdictions are in a similar position. The Second

Circuit’s opinion therefore significantly increases the risk of

litigation for all jurisdictions if they deny accommodations.*

It also creates conflicting standards among the circuits. Given

the importance of the issue to state licensing boards such as

the New York Board, and to testing organizations such as

the NCBE, the NCBE respectfully presents its views to the

Court.

FACTS

The New York Board denied Ms. Bartlett’s request for

testing accommodations on the July 1993 bar examination

only after reviewing, in good faith, the documentation that

she provided in support of her request, and only after

obtaining the advice of an independent expert consultant on

learning disabilities, Dr. Frank Vellutino. App. 35a. As the

district court acknowledged, Dr. Vellutino is a “research

psychologist expert in the field of learning disabilities.” App.

52a. He has “published numerous books and articles on the

subject,” he is a Professor in the Department of Educational

Psychology and Statistics at the State University of New York

at Albany, and he “supervises a clinic engaged in the

3. Cf Hoover v. Ronwin, 466 U.S. 558, 580-81 n.34 (1984)

(noting, ina Sherman Act case, the untoward “discovery and litigation

burdens” that would result for bar “examining boards and

committees” if the lower court’s decision were to be affirmed, and

stating that, “every year, there are thousands of aspirants who, like

Ronwin, are disappointed” when they fail a bar examination).

5

identification and treatment of children with dyslexia.” /d.

Dr. Vellutino utilized a method of evaluating an applicant’s

need for accommodation that was purposefully overinclusive

in identifying those individuals with learning disabilities.

App. 55a. Based on his methodology, he concluded that Ms.

Bartlett was not an individual who needed testing

accommodations. App. 56a.

a es

After her initial request for testing accommodations was

denied, Ms. Bartlett asked the Board to reconsider, and she

submitted additional documentation. App. 35a. The Board

considered the new documentation and also forwarded it to

Dr. Vellutino. Based upon his evaluation, the Board denied

; Ms. Bartlett’s appeal. App. 35a-36a. Ms. Bartlett then

commenced the instant action in the United States District

Court for the Southern District of New York claiming, among

other things, that the Board’s denial of her request for

accommodations in taking the bar examination violated Title

| Il of the ADA and Section 504 of the Rehabilitation Act.

App. 24a.

A score of 660 is needed to pass the New York bar

examination. App. 27a-28a. Ms. Bartlett has taken (and

failed) the New York bar examination five times, achieving

scores between 563 and 615. App. 33a, 35a, 36a. Ms. Bartlett

was not provided with any testing accommodations the first \,

four times that she took the New York examination (she did -

not request any accommodations on at least one of the

examinations, and perhaps two). App. 33a-35a. On her fifth

try, however, Ms. Bartlett was given testing accommodations

pursuant to a stipulated preliminary injunction entered in this

case. App. 36a. She again failed, achieving a lower score

(597) than she had achieved on the February 1993

examination without accommodations (615). App. 35a-36a.

Fae ee ee

6

Ms. Bartlett also took the Pennsylvania bar examination in

July 1993. App. 37a. Although she was provided testing

accommodations, she also failed this examination. /d.

Despite her poor performance on the two

bar examinations administered to her with special

accommodations, Ms. Bartlett persisted in her claims against

the Board and her lawsuit proceeded to trial. After a three

week trial which included conflicting expert testimony and

“exhibits and briefs aggregating to more than 5000 pages,”

the district court concluded that the Board violated the ADA

and the Rehabilitation Act. App. 24a, 58a. In analyzing

Ms. Bartlett’s Equal Protection Claim and the individual

defendants’ claim of qualified immunity, however, the district

court concluded that

the Board’s procedures, including the subjection

of applicants’ reports to review by an expert, are

rationally related to the legitimate government

end of discerning whom should be afforded

accommodations on the state bar examination.

App. 110a; see also App. 112a (“Clearly, ... it is not

irrational for the Board to use an expert to assist in the

evaluation of [an applicant's] reports. Likewise, the choice

of Dr. Vellutino as that expert was perfectly rational, as were

Dr. Vellutino’s theories.”). The district court further found

that: (1) the Board and its expert employed a reasonable

methodology to determine whether Bartlett was learning

disabled; (2) the individual defendants acted reasonably

“when they determined that plaintiff was not disabled under

the law;” (3) “a reasonable defendant would not have

understood that his or her acts were unlawful;” (4)

“(dJjefendants seemingly made an attempt to comply with the

7

statutes;” and (5) that any resulting bias against learning

disabled applicants generally, or the plaintiff specifically,

was unintentional. App. 109a, 11lla-112a, 132a-133a.

Nonetheless, the district court held that the Board had

committed an intentional violation of the ADA and the

Rehabilitation Act, and it awarded Ms. Bartlett $12,500 in

compensatory damages. App. 140a-141a.

On appeal, the Second Circuit concluded that the Board’s

decision was entitled to no deference. App. 9a-! la. It affirmed

the award of damages but remanded the case for a final

determination of the amount. App. 19a-20a. Acknowledging

that an award of compensatory damages requires a finding

of intentional discrimination, the Second Circuit went on to

hold that “intentional discrimination against the disabled does

not require personal animosity or ill will. . . .” App. 19a-20a.

Rather, the Second Circuit concluded, intentional

discrimination “may be inferred when a policymaker acted

with at least deliberate indifference to the strong likelihood

that a violation of federally protected rights will result from

the implementation of the [challenged] policy.” App. 20a

(quotations and citations omitted). Discounting (if not

ignoring) the district court’s findings regarding the

reasonableness and good faith of the Board’s actions, the

Second Circuit concluded that because the trial court

ultimately found that the Board’s methodology for identifying

individuals with learning disabilities was flawed, the Board’s

denials of Ms. Bartlett’s accommodation requests amounted

to “intentional discrimination.” App. 20a. This petition

follows.

8

REASONS FOR GRANTING THE WRIT

This case creates a conflict among the circuits regarding

the correct standard for an award of compensatory damages

under Title II of the ADA and the Rehabilitation Act. In the

Fifth, Eighth, Ninth and Eleventh Circuits, a plaintiff cannot

recover compensatory damages under Title II of the ADA or

under the Rehabilitation Act absent a finding of bad faith,

gross misjudgment, or discriminatory animus, or a knowing

failure to correct improper discrimination. Deviating from

these decisions, the Second Circuit effectively held in this

case that a defendant will be liable for compensatory damages

under Title II of the ADA or the Rehabilitation Act, regardless

of the reasonableness or good faith of its actions or the lack

of any discriminatory animus, so long as the defendant

knowingly acted in a manner that is ultimately found, at trial,

to violate the statutes. Because of the importance of this issue

to individuals and entities which, every year, must make good

faith judgments about the disabilities of thousands of

individuals and their need for accommodation, the Court

should grant certiorari to resolve this conflict.

I.

THE ISSUE HAS WIDESPREAD SIGNIFICANCE.

While the present case involves one individual who took

one kind of examination, the issues raised in the New York

Board’s petition have far broader implications. Hundreds of

thousands of examinations are administered each year by or

for a broad range of state licensing or certification boards.

Individuals who want to become lawyers, doctors, nurses,

engineers, social workers, dentists, accountants, or architects,

for example, must obtain licenses before they can lawfully

practice, and the licensing process for all of those professions

9

requires completion of one or more examinations. Likewise,

in the educational context, hundreds of thousands of

individuals take admissions examinations every year, such

as the SAT or the ACT Assessment; the Law School

Admissions Test (“LSAT”); the Medical College Admissions

Test (“MCAT”); and the Graduate Record Exam (“GRE”).

In both contexts, professional licensing and admissions

to educational institutions, as well as in other contexts in

which examinations are used, thousands of test takers request

testing accommodations each year based upon claimed

disabilities. Most of the requests are properly documented,

and most accommodations are routinely provided.

The ADA and the Rehabilitation Act define the term

“disability” in terms of “physical” and “mental” impairments.

See 29 U.S.C. § 705(20); 42 U.S.C. § 12102(2). Relatively

speaking, accommodation requests involving physical

impairments have not been difficult to evaluate or particularly

controversial. But an increasingly large number of testing

accommodation requests involve mental impairments, such

as dyslexia, attention deficit disorders, dyscalcula, the

“disorder of written expression,” other learning or cognitive

disabilities, and even “test anxiety.’ These requests generally

4. Between 1990 and 1993, for example, the number of

learning disabled individuals taking the LSAT under

special conditions (usually consisting of time

extensions) increased by over 100 percent, from 261

to 553. In the 1994-95 testing year, [there were] 785

requests from learning disabled individuals for similar

accommodations.

L. Eichhorn, “Reasonable Accommodations and Awkward

Compromises: Issues Concerning Learning Disabled Students and

Professional Schools in the Law School Context,” 26 J. of Law &

Educ. 31 (1997).

10

pose greater challenges, both in terms of properly

documenting the disability and determining what

accommodations are appropriate. The accommodations

requested for mental disabilities include extended testing

time; readers; scribes; calculators; changed testing formats

(e.g., essay rather than multiple choice); additional rest

periods; separate testing rooms; a change in the grading

process; and, in at least one case, modification of standardized

exam questions so they are more “simple” and “direct.”

“Diploma tests and licensure tests are designed to

protect the public from those who have not mastered

minimum skills.” S.E. Phillips, “High Stakes Testings

Accommodations: Validity Versus Disabled Rights,” Applied

Measurement in Education, 7(2), 93-120 at 98 (1994). When

a given test taker asks for testing accommodations that are

not available to other test takers, the question arises whether

“scores with and without accommodations are comparable.

That is, do scores from nonstandard administrations have the

same meaning as scores from standard administrations?”

Id. at 96; see also Standards for Educational and

Psychological Testing at 78 (1991 ed.) (published by the

American Educational Research Association, the American

Psychological Association, and the National Council on

Measurement in Education). A request for accommodations

5. See Petition for Damages and Injunctive Relief {| 6, Jones v.

American Council on Educ., No. 98-592-A-M2 (M.D. La.) (filed

June 30, 1998) (ADA suit brought by an individual who claimed to

suffer from “attention deficit, dyslexia, dysgraphia, discalcula, a short

attention span and inability to process sequential information and

instructions;” the individual was provided some but not all of his

requested accommodations when he took the General Educational

Development tests, the successful completion of which is recognized

in certain states as the equivalent of a high school diploma).

TN II oe

1]

thus raises fairness issues not only for the individual who

has requested the accommodations, but also for the many

individuals and entities who rely upon the validity of the

examination as an accurate measure of what it is designed to

assess.° It also raises fairness issues for other test takers who

do not get such accommodations and who might suffer a

tangible loss — such as admission to a college or to a

state’s bar — if the accommodated individual obtains an

inappropriate advantage by virtue of the accommodations.

For these reasons, licensing boards and testing

organizations have a responsibility to ensure that testing

accommodations are provided to all individuals with

qualifying disabilities, but not to individuals who do not have,

or do not properly document, such disabilities. Necessarily

and appropriately, they must balance competing interests.

This is especially true in the licensing context, where

the decision regarding the appropriateness of testing

accommodations is made for purposes of protecting the

6. See generally Note, “Toward Reasonable Equality:

Accommodating Learning Disabilities Under the Americans with

Disabilities Act,” 111 Harv. L. Rev. 1560, 1562, 1573 (1998)

(arguing that “decisional models that focus on balancing the interests

of individuals and institutions . . . are most ¢“nsistent with the ADA’s

vision of reasonable equality,” and noting that “many experts in the

field recognize the problematic nature of the LD category — a broadly

heterogenous classification with disputed etiology. ...”); Note,

“Learning and Mental Disability Protection Under the Americans

with Disabilities Act in the Quest for Certification for the Practice

of Law.” 10 J. Law & Health 209, 227-28 (1995/1996) (noting the

potential for conflict between a disabled individual’s request for

accommodations and the “vital function of the certification process

— to screen applicants for competency and fitness to practice law,”

and stating that ADA challenges are “shift{ing] the focus to fear of

litigation”).

12

public, not for self-interested reasons. See, e.g., Theriault v.

Flynn, 162 F.3d 46, 50 (1st Cir. 1998); Jacobsen vy. Tillman,

17 F. Supp. 2d 1018, 1024 (D. Minn. 1998); Price v. National

Bd. of Medical Examiners, 966 F. Supp. 419, 421-22 (S.D.

W.Va. 1997); Ramachandar v. Sobol, 838 F. Supp. 100, 108

(S.D.N.Y. 1993).

The present case involves New York’s licensing process

for lawVers. This Court has recognized that “important state

interests” are implicated by a state’s regulation of “persons

who are authorized to practice law.” Middlesex County Ethics

Comm'n v. Garden State Bar Ass'n, 457 U.S. 423, 431-34

(1982). The issue presented here has significant implications

with regard to those state interests and deserves consideration

by the Court.

THE SECOND CIRCUIT’S STANDARD FOR

IMPOSING COMPENSATORY DAMAGES

CONFLICTS WITH DECISIONS FROM

THE FIFTH, EIGHTH, NINTH AND

ELEVENTH CIRCUITS.

An award of compensatory damages under Title II of the

ADA and Section 504 of the Rehabilitation Act requires a

finding of “intentional discrimination.” Guardians Ass'n y.

Civil Serv. Comm'n of New York, 463 U.S. 582 (1983) (Title

V1 of the Civil Rights Act of 1964 — whose remedial scheme

is adopted under Title II of the ADA and under the

Rehabilitation Act — requires a finding of intentional

discrimination before compensatory damages may be

awarded). While the Second Circuit referenced this

requirement, its holding as to what conduct suffices to support

13

a finding of “intentional discrimination” conflicts with

decisions from at least four other Circuits.

In Marvin H. vy. Austin Indep. Sch. Dist., 714 F.2d 1348,

1356 (Sth Cir. 1983), the Fifth Circuit held that

when a schoo! district, in good faith attempts to

provide a free appropriate public education to a

handicapped child and has adequately complied

with the procedures for determining the child’s

correct educational placement, it will not later

stand liable to the parents for damages even if a

court subsequently determines that the educational

placement was incorrect.

Later, in Carter v. Orleans Parish Pub. Schs., 725 F.2d

261, 264 (Sth Cir. 1984), the Fifth Circuit emphasized that

absent some allegation that the defendant school board

“intended to place his children in inappropriate classes or

that his children’s placement manifested discriminatory

animus,” damages for a violation of Section 504 of the

Rehabilitation Act would not lie.

In Monahan v. State of Nebraska, 687 F.2d 1164, 1171

(8th Cir. 1982), cert. denied, 460 U.S. 1012 (1983), the Eighth

Circuit held, in the context of education of disabled children,

that “either bad faith or gross misjudgment” must be shown

in order to impose liability under Section 504 of the

Rehabilitation Act. The court of appeals reasoned that the

reference in the Rehabilitation Act “to ‘discrimination’ must

require . . . something more than an incorrect evaluation, or

a substantively faulty individualized education plan, in order

for liability to exist.” /d. at 1170. The Eighth Circuit extended

this ruling to Title II of the ADA in Hoekstra v. Independent

14

Sch. Dist. No. 283, 103 F.3d 624, 626-27 (8th Cir. 1996),

cert. denied, 520 U.S. 1244 (1997). “[I]n the context of

educational services for disabled children,” the Eighth Circuit

concluded in Hoekstra that “a showing of gross misjudgment

or bad faith . . . is necessary to [recover monetary damages]

on an ADA claim.” /d. at 627; accord Sellers v. School Bd.

of City of Manasas, Va., 141 F.3d 524, 529 (4th Cir.), cert.

denied, 119 S. Ct. 168 (1998).

In Ferguson v. City of Phoenix, 157 F.3d 668, 675-76

(9th Cir. 1998), the Ninth Circuit held that regardless of

whether an award of compensatory damages under Section

504 and Title Il of the ADA requires a showing of “deliberate

indifference” or “discriminatory animus,” the plaintiffs failed

to show that the City’s conduct rose to either standard. In

Ferguson, the court held that the City’s failure to correct its

9-1-1 services for the hearing impaired “‘appear[ed] to be no

more than at times some not uncommon bureaucratic inertia

as well as some lack of knowledge about DOJ’s Manual’s

requirements.” /d. at 675. The court noted that there was no

actual showing of inadequate training and nothing

to put the City on notice of any inadequacy.

Further, . . . there was an internal investigation into

the level of [the City’s] 9-1-1 service followed by

diligent effort ... to upgrade its services.

Id. at 675-76. In short, the court concluded, there was simply

no showing of “bad faith on the part of the City.” /d. at 675-

76; see also Memmer v. Marin County Courts, _ F.3d _,

1999 U.S. App. LEXIS 3333, *9-*12 (9th Cir. March 3, 1999)

(rejecting a visually impaired individual’s damage claim

under Title Il of the ADA because there was “no evidence of

the discriminatory intent necessary .. to recover monetary

damages’”’).

15

Finally, in Wood v. President & Trustees of Spring Hill

College, 978 F.2d 1214, 1219 (11th Cir. 1992), the Eleventh

Circuit found no error in the district court’s jury instructions

informing the jury that an award of damages under Section

504 required the plaintiff to prove that her “constructive

dismissal” from the defendant college due to its alleged

hostility to her schizophrenia “was the result of intentional

discrimination or discriminatory animus.” Elaborating, the

court of appeals held that, under either standard, “[a]s a

general matter, good faith attempts to pursue legitimate ends

are not sufficient to support an award of compensatory

damages under section 504.” In Wood, the jury returned a

verdict in favor of defendant.

The above cases stand in stark contrast to the Second

Circuit’s decision here. Like the defendants in Marvin H.,

Hoekstra, Ferguson, Memmer and Wood, the Board was

found to have acted reasonably. The Board hired a noted

expert and attempted to comply with Section 504 and the

ADA’s requirements, finding out only after a long and

complicated factual trial that its conclusions with respect to

the plaintiff were — in the court’s view — legally deficient.

To our knowledge, only the Second Circuit holds such

conduct to amount to “deliberate indifference” and, therefore,

to constitute “intentional discrimination.”

One cannot reasonably conclude that the Board

intentionally violated the ADA by denying Ms. Bartlett’s

request for accommodations. Under the ADA, it is permissible

for

organizations that administer tests .. . to require

individuals with disabilities to provide ...

appropriate documentation . . . of their disabilities

16

and of any modifications or aids that would be

required,

so long as the documentation requirements are not

“unreasonable.” 28 C.F.R. Part 36, App. B at 643 (1997);

see also Kaltenberger v. Ohio College of Podiatric Medicine,

162 F.3d 432, 437 (6th Cir. 1998). If the documentation

requested by a Board is reasonable, the Board has not violated

the ADA in requesting the documentation. By an extension

of this reasoning, a Board does not violate the ADA in its

evaluation of an applicant’s documentation so long as the

Board acts reasonably in reviewing the documentation and

reaching its decision. The New York Board unquestionably

met that standard here.

The New York Board requested appropriate

documentation in this case and then considered everything

that Ms. Bartlett submitted. The documentation was reviewed

not only by the Board, but also by an independent expert on

learning disabilities, Dr. Frank Vellutino. The district court

concluded that the Board acted reasonably in reviewing the

documentation, in selecting Dr. Vellutino as its expert

consultant, and in concluding that Ms. Bartlett does not have

a learning disability that would entitle her to testing

accommodations. App. 109a, 11 1la-112a, 132a-133a.

This should have been the end of the court’s analysis.

Having concluded that the Board acted reasonably and

rationally not only in its consideration of Ms. Bartlett’s

request for accommodations, but also in the conclusion that

it reached, the district court should have entered judgment in

the Board’s favor. The Board’s decision was entitled to

ee RN ee

17

deference.’ But even if no deference is given to the Board’s

decision, the Board clearly should not have been subjected

to an award of compensatory damages based upon a finding

of intentional discrimination.

If left standing, the decision below will inevitably compel

many licensing boards and testing agencies to accept any

documented claim of disability, no matter how tenuous the

documentation, lest they face the risk of liability. Licensing

boards and testing organizations evaluate accommodation

requests from thousands of individuals every year. It is

imperative that these entities understand what is required of

them under the disability laws, that these standards be

uniform, and that monetary sanctions not attend reasonable

and good faith decisions regarding the existence of a

qualifying disability or the appropriateness of a particular

accommodation. This Court’s intervention is therefore needed

to create uniform standards of liability and to inform regulated

parties what conduct will result in a damages award under

Section 504 and the ADA.

7. See, e.g., Garro v. State of Connecticut, 23 F.3d 734, 736

(2d Cir. 1994); Jacobsen v. Tillmann, 17 F. Supp. 2d 1018, 1024-25

(D. Minn. 1998); cf. Zukle v. Regents of the Univ. of California, _

F.3d __, 1999 U.S. App. LEXIS 2702, *16-*22 (9th Cir. 1999)

(holding that, under the ADA and Rehabilitation Act, the decisions

of an educational institution regarding the appropriateness of

requested accommodations are “entitled to deference”) (citing

Regents of the Univ. of Michigan v. Ewing, 474 U.S. 214, 225 (1985);

Wynne v. Tufts Univ. Sch. of Medicine, 976 F.2d 791, 795 (ist Cir.

1992), cert. denied, 507 U.S. 1030 (1994); McGregor v. Louisiana

State Univ., 3 F.3d 850, 859 (Sth Cir. 1993), cert. denied, 510 U.S.

1131 (1994); and Doe v. New York Univ., 666 F.2d 761, 776 (2d

Cir. 1981)); Kaltenberger v. Ohio College of Podiatric Medicine,

162 F.3d 432, 436 (6th Cir. 1998) (same).

18

CONCLUSION

The New York Board’s petition for a writ of certiorari

should be granted, preferably to address all issues raised in

the Petition, but at a minimum to resolve the conflict in the

Circuits regarding the appropriate standard for awarding

compensatory damages under Title II of the ADA and Section

504 of the Rehabilitation Act.

Respectfully submitted,

RoBERT A. BURGOYNE

Counsel of Record

KAREN M. Moran

FULBRIGHT & JAWORSKI L.L.P.

Attorneys for Amicus Curiae

National Conference of Bar Examiners

801 Pennsylvania Avenue, N.W.

Washington, DC 20004-2615

(202) 662-0200

Of Counsel:

Erica MOESER

NATIONAL CONFERENCE

OF BAR EXAMINERS

333 North Michigan Avenue

Suite 1025

Chicago, Illinois 60601

(312) 641-0963