Monday, January 31, 2011

For a profession steeped in justice, now better access to it

By Professor Michael Waterstone

This column was originally published in the Jan. 28 edition of the Los Angeles Daily Journal.

People with disabilities face many barriers to becoming lawyers. Applications to law school, which are primarily found online, may not be accessible to blind individuals. For law students with disabilities, a law school may disagree on what accommodations are required for law school exams. There are few clubs or support structures in law schools for these students, in part because their numbers are so few. This in turn, creates feelings of isolation and aloneness. After graduation, law students with disabilities can face invasive questions on their bar applications, such as inquiries as to treatment or counseling for mental, emotional or nervous disorders. These students have to spend significant amounts of their own money documenting their disabilities. Even after they become licensed, lawyers with disabilities report prejudice and stigma: More than half of lawyers with disabilities polled by the State Bar reported being denied employment opportunities because of their disabilities.

Although good data is hard to come by, one study found that only 7 percent of the members of the American Bar Association identified themselves as having a disability (far below the rate of disability prevalence in the general population). This is a problem for our profession. Laws like the Americans with Disabilities Act have brought more people with disabilities into the mainstream of American life, opening up new opportunities across the spectrum. This means that more of our clients have disabilities, and there are more issues relating to disability that are part of general legal issues. Lawyers with disabilities have a life experience that is crucial to working on these legal problems.

Fortunately, a recent decision by the 9th U.S. Circuit Court of Appeals helps clarify that the law requires fairness and equal treatment in at least one stage of this process. Stephanie Enyart, a law graduate who is blind, asked the National Conference of Bar Examiners if she could take the bar exam with assistive technology software. The Bar Examiners instead offered a reader, an audio CD and text magnification. Enyart sued and provided evidence, which the District Court accepted, that she would suffer eye fatigue, disorientation and nausea if she used the closed circuit television, and that the live reader and audio CD were insufficient to allow her to effectively comprehend and retain the exam content. The Bar Examiners took the position that these were sufficient because the options offered had worked for other individuals who are blind (and had worked for Enyart in the past before her eye condition had worsened). It believed that this was all they were legally required to do.

The 9th Circuit disagreed. It held that a Department of Justice regulation interpreting the Americans with Disabilities Act requires that testing entities administer the exams "so as to best ensure" that exam results accurately reflect aptitude on an exam, rather than disability. Given this interpretation, Enyart received the accommodations she requested for the bar exam. The court was clear that this case did not mean that every blind law school graduate will get these specific accommodations. Rather, each case requires the Bar Examiners and law graduate to work together to figure out what type of accommodation will work best for that individual, while at the same time not jeopardizing the fairness of the exam. This ensures that the Bar Examiners (and other organizations that administer licensing exams) will take an individual's circumstances into account rather than just assuming a one-size-fits-all solution for particular disabilities. And as more students with disabilities are graduating law school and sitting for bar exams, there will be more cases. Timothy Elder, a graduate of UC Hastings Law School who is blind, recently filed suit requesting the use of screen-reading software for the California bar exam next month.

The legal profession is improved when it becomes more inclusive, as has been the case with the integration of women and other minority groups. But change is not easy - lawyers and licensing organizations still jump to stereotypical assumptions about what those lawyers can and cannot do. Enyart's case is a significant step toward opening up the legal profession for all would-be lawyers with disabilities.

Enyart is brave and tenacious for challenging the National Conference of Bar Examiners, a formidable task that took many years and might not be over yet, as it is conceivable that the Bar Examiners could appeal the case to the U.S. Supreme Court. She has also had the benefit of a top-notch legal team, many of whom are lawyers with disabilities. Like other pioneers, she has opened up the legal profession for others to follow her.

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