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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1424%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1999
- **Citation:** 527 U.S. 1031

## Text

| 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
-

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

il

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

10

a ens

a me ia

l
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1424%3A3. Public record. Not legal advice.