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Kevin H. Smith
excerpted from: Kevin H. Smith, Disabilities, Law Schools, and Law Students: a Proactive and Holistic Approach , Akron Law Review 1-106, 64-78 (1999)(261 Footnotes)
Once a student has established that she is disabled, she is entitled to reasonable accommodations which will permit her to participate in the law school program as long as she is, accommodations included, qualified to do so. As currently conceived, an accommodation provides logistical or administrative assistance, relieves the student of a requirement made on non-disabled students, or provides extra time to complete a required task. I will argue that accommodations should be interpreted to include a more comprehensive and sophisticated method of establishing what accommodations are reasonable and providing students with a variety of optional programs and services. A. What Accommodations are Made for Disabled Students? Disabled law students currently are granted a wide variety of accommodations. The relevant statutory and regulatory schemes do not define what constitutes a permissible accommodation. The lack of specificity undoubtedly results from Congress' recognition of the diverse nature of disabilities and the many situations in which a disabled student might require an accommodation. In practice, accommodations are as varied as the types, combinations, and levels of disabilities which give rise to them. Professor Stone's survey indicated that "[w]hen a disabled student sought a reasonable accommodation by reason of a disability, ... the primary request was for additional time in completing the course examination," followed in descending order of frequency by requests for a separate exam room, extra rest time during the exam, provision of a computer or other equipment, extension for written assignments, enlarged print sizes, an unexplained category named "other," a modification in exam format ("from essay exam to either multiple choice or short answer questions"), or a waiver of course assignment. Professor Stone's empirical study and my anecdote-driven non-scientific survey, indicate that requests for accommodation are almost always granted. Common, and relatively non-controversial law school-related accommodations include: (1) relocating classes to more accessible rooms; (2) relocating classes to first- floor rooms which provide easier escape in the event of a fire, severe weather, or earthquake; (3) providing priority registration or rescheduling classes to assist with logistical and medical needs; (4) providing a signer for the hearing impaired; (5) providing a note taker or a copy of notes taken by classmates; (6) allowing classes to be tape recorded; (7) providing a scribe or voice-recognition word processing program; (8) providing tutors or an academic support program; (9) providing an exemption from being called on in class or from participating fully in moot court arguments; (10) providing exam modifications such as rest breaks, extra time to complete tests, a quiet or private room, a scribe or the ability to type a final exam; (11) providing the visually impaired with course materials and exams in large-type format; (12) making minor alterations in classroom presentation style; (13) providing extra time for writing assignments and law review or moot court write-on competitions; and (14) providing recorded casebooks and course materials or providing a reader. More controversial and, therefore, less common accommodations raise the specter of altering essential course or curricular requirements. Accommodations of this type include: (1) altering the format of an examination; (2) permitting the use of an editor or proofreader on exams or writing assignments; (3) permitting the use of a spellchecker program for examinations which are typed using a computer word processing program; (4) altering course requirements; (5) permitting a disabled student to miss more than allotted number of classes; (6) providing a reduced course load, particularly during the first year or when a student with a writing problem has writing assignments such as an independent research paper;(7) extending the time within which to graduate; or (8) permitting examinations to be taken at home. B. What Factors Should Be Considered in Determining Whether an Accommodation is "Reasonable?" Most requests for accommodations are granted because of 1) the accommodation's low cost; 2) a logical connection between the accommodation and the specific disability; or 3) the accommodation is far less expensive and time-consuming than litigating the issue of whether the accommodation must be provided. However, in order to protect the school from expensive accommodations which are not needed and to protect non-disabled students from being injured by disabled students being over-accommodated, the law requires that law school decision makers should determine whether the requested accommodation is "reasonable" and provide only those accommodations which are reasonable. Like "disability," "reasonable" is a complex and indeterminate concept which must be applied to a wide range of disabilities and circumstances. The determination of whether an accommodation is "reasonable" requires the identification and good-faith, judicious weighing of a range of competing interests which are viewed within the totality of circumstances. The analysis is complicated by the fact that an accommodation's impact is difficult to predict and to assess. As with the existence of a "disability," there will be no authoritative determination of whether an accommodation is reasonable unless the issue is litigated. In the majority of situations, the decision whether an accommodation is reasonable will be made by a law school administrator or other university official. In the end, therefore, it will be the administrator's or official's attitudes and beliefs (and her assessment of the risks and costs of litigation) which will be dispositive, not a list of factors. Nonetheless, a decision, judicial or otherwise, of whether a requested accommodation is "reasonable" should consider the following factors: 1. The most critical factor in assessing whether an accommodation is reasonable is the accommodation's relationship to the law school's essential functions, that is, how the accommodation relates to what the law school is attempting to accomplish for all its students. There seems to be no consensus on this issue, at least beyond such vague statements as "a goal of law school is to assist the student to learn to 'think like a lawyer."' The process of developing a list of essential functions will require an evaluation of the range of research, analytical, verbal, writing, and work-related skills which the law school is attempting to develop in its students. However difficult it would be to create a list of essential functions, several common scenarios in which accommodations are sought will illustrate the importance of a clearly defined understanding of the essential objectives of a law school education. Consider a student who suffers from panic attacks and who seeks the accommodation of an exemption from class participation. Is class participation an essential element of a law school education? If it is, then her request is unreasonable. Or consider a student with AIDS who misses classes in excess of the maximum imposed by the professor in her syllabus because of AIDS-related illnesses. Is class presence an essential element of a law school education? If it is, then the disabled student's request to be exempted from the requirement is unreasonable. Finally, consider a dyslexic student who takes more than an average amount of time to read material. Is the ability to complete a lengthy multiple-choice exam within a three-hour period an essential element of a law school education? If it is, then the dyslexic student's request for additional time is unreasonable. Without a list of law school essential functions, that is, the goals of a law school education, decision makers will not have anything concrete by which to measure whether an accommodation is reasonable. 2. Directly related to the essential functions of law school is the pedagogical impact of the accommodation. The professor is best situated to evaluate and establish the methods (case study, problems, hypotheticals raised in class versus problems to be worked in preparation for class, etc.) which are most suited to develop the knowledge and skills or abilities which she feels must be acquired by the student, both for the purpose of the course and for the purpose of practicing law. Many accommodations may interfere with the professor's desired pedagogy, as the following three examples illustrate. First, consider the professor who believes tax students should have a practical, problem-oriented exposure to tax law. The professor uses a casebook which contains many technical problems involving the need to determine fractions and percentages and to perform other, similar arithmetic calculations. A student with dyscalculia asks to be excused from preparation and in-class discussion of the assigned problems. She indicates she is willing to discuss the cases' basic facts (but not any arithmetic calculations in the cases), the statutes and regulations, and the policies on which the statutes and regulations are based. She also asks the professor to provide her with an examination which emphasizes these matters and excludes problems involving numbers. Second, the professor believes students must be able to analyze problems immediately upon hearing them. Therefore, she uses hypotheticals which are introduced in class. A student has a mild case of aphasia, which impairs her ability to process information received aurally. As a result, she is unable to follow class discussion and to effectively participate in class discussion. She asks for the accommodation of receiving the hypotheticals in written form the night before class so she can read them and prepare answers. With that level of preparation, she can both follow and participate in class discussion. Finally, consider the professor who believes students need to be able to answer hypothetical questions in front of groups of people. Therefore, the professor sometimes uses a Socratic approach in which she calls on students in class. A student who has a panic disorder and suffers panic attacks when called on in class, or when worrying about being called on in class, asks to be excused from class participation. The student suggests that she meet privately with the professor and engage in a Socratic-type dialogue with the professor in that setting. Are the requested accommodations reasonable? In each case, the requested accommodation undermines the professor's pedagogical approach, but each requested accommodation is related directly to the student's disability. Although I believe a professor's good faith judgment should be accorded significant discretion, particularly when there has been a searching discussion of alternatives, I would grant all the accommodations except for the student's request for an alternative exam. I would, however, grant the student extra time for the exam and permit her to use a calculator. I would reject immediately and unequivocally any request that the professor in the first example change her casebook or her basic pedagogical approach. 3. Academic freedom is another important factor in determining whether an accommodation is reasonable. Academic freedom gives the individual professor significant latitude to make a reasoned evaluation for her course concerning educational issues such as what constitutes essential coverage, the skills which need to be developed, and the best method of developing those skills. This judgment is frequently a function of direct experience in practice; years of study, teaching, and research in the area; analysis of the pattern and content of bar exam questions; and an understanding, based on discussions with practitioners, of the knowledge and skill base required to practice in a particular area of the law or law in general. Class requirements established by the professor concerning issues of skill, coverage, and classroom methodology should be given significant deference. For example, the professor may conclude that a particular book, a particular range of coverage in the book, and a particular method of presenting the material (tax problems involving complicated arithmetic operations versus reading and analyzing cases) are essential elements of a tax course. Law school administrators and courts should be reluctant to invade the academic freedom traditionally accorded to faculty members regarding such matters. Other class requirements, such as attendance requirements, should be given less deference and should not be considered essential aspects of the course of study. For example, the professor's decision that a student will fail the course if she misses more than ten of sixty classes is entitled to less deference, particularly if some surrogate for class attendance, such as tape recording or video recording the class can be used. 4. The cost/benefit ratio of the requested accommodation in light of available funding is another legitimate factor. Many, if not most accommodations cost little or nothing beyond the value of the administrator's or professor's time, and little time is typically required. For example, it costs nothing for a professor not to call on a student who has a panic disorder. In addition, allowing a student extra time on an examination has no cost beyond the time of the law school administrator who must implement the logistical arrangements. However, when more than a minimal expense is involved it is reasonable to consider the cost and benefit of the requested accommodation. Consider the student who cannot take notes due to a neuromuscular disease. A range of potential accommodations with associated possible expenses exsist. For example, prepared class notes could be accommodated by providing the student with photocopies of notes taken by other students, taping the classes and having a secretary transcribe them within a day or two, or having a court reporter record the class and provide a typed transcript of the class the same day. The school has a legitimate concern in minimizing the cost of the accommodation if it can be done without jeopardizing the student's educational experience. The cost of providing a same-day transcript may not be worth the marginal benefit over receiving a secretary-generated transcript within one or two days. In a related vein, the cost/benefit ratio to the student must be considered, particularly with accommodations not requested by the student. When the law school requires or suggests additional accommodations, such as participation in an academic support program, the school must make sure that the program is sufficiently tailored to the student's needs to assure that the student's time and effort will be rewarded. 5. The negative impact of the accommodation on the educational opportunities afforded non-disabled or other disabled students is another concern. A purely utilitarian view might make many accommodations unreasonable, thus defeating the purpose of the law. For example, spending $20,000 for a signer may be an indispensable accommodation for a person who is hearing impaired. On the other hand, using funds for a signer may deprive other students of opportunities because, for example, it may mean that fewer adjuncts can be hired to teach specialized courses and fewer books can be purchased for the law library. Although the Rehabilitation Act and ADA permit the needs of the disabled student to have a limited negative impact on non-disabled students, the negative impact should not be open-ended. 6. Another critical factor in determining if an accommodation is reasonable is whether the requested accommodation is rationally related to the functional impairment which is the basis of the disability. Decisions which do not include this consideration waste resources, do not constitute an effective accommodation, and may lead to hard feelings on the part of non- disabled students who see the action as wasteful or even worse an unfair advantage. For example, consider the student with a panic disorder triggered by the stress of being called on in class. While a reasonable accommodation might be to exempt the student from class participation, double-time on exams would not be a reasonable accommodation because it has nothing to do with the panic disorder. On the other hand, if a student suffers from test anxiety, but not from the stress of being called on in class, double-time on exams would be a reasonable accommodation, while an exemption from class participation would not be reasonable. Addressing the specific needs resulting from a specific impairment is a necessary condition for an accommodation to be considered reasonable. 7. Similarly, the severity of the disability is also important. For example, consider two hearing-impaired students. One student has a mild hearing impairment, which is completely compensated for by the use of a hearing aid and being in proximity to the speaker, while the other student has a profound hearing impairment, which is not fully compensated for by the use of a hearing aid, regardless of her proximity to the speaker. A reasonable accommodation for both students might be being permitted to sit in the front row of the class. Given the severity of her disability, it may also be a reasonable accommodation to provide the more profoundly hearing-impaired student with class notes to fill in the gaps of what she does not hear. A request for class notes by the other hearing-impaired student would not be reasonable because her hearing impairment is completely compensated for by the use of a hearing aid and being in the front row. Whether a requested accommodation is reasonable will rest in most instances on the severity of the disability. 8. The possibility of harm to the disabled student must be taken into account in determining whether an accommodation is reasonable. A basic requirement of a "reasonable" accommodation is that the law school should treat each disability in a confidential, nonjudgmental manner which considers the disability as a medical, neurological, or biochemical condition, not as a matter of weak character or willpower. The potential for stigma and for unintentional harm to the student's ego must be considered. Discretion is particularly appropriate with respect to disabilities which historically, if inaccurately, have been linked to lack of intellectual ability (LDs, ADD, and ADHD) or to character flaws (emotional disabilities). For example, if a student is exempted from class participation due to a panic disorder, it is not "reasonable" for the professor to adopt a "work the way down the row" approach to calling on people and just skip over the disabled student. It should be remembered that harm to the student cuts in both directions. The student may be academically harmed if the school does not provide reasonable accommodation to the student, such as extra time on an examination or note- taking service for a hearing-impaired student. On the other hand, because these accommodations (particularly those related to the time required to produce work product) may not be available in the real world, it does not seem unreasonable for the law school to work with the student, the student's diagnostician and therapist, and the university's office of student disability services, where appropriate and possible, to wean the student from or reduce the level of the accommodation. It does not truly assist the student if she receives accommodations so that she can complete the law school program, but cannot pass the bar examination or perform in law practice with the reduced level of accommodation she will be afforded in the real world. Thus, because the legal educators and law school administrators are much more familiar with the legal world than the student, part of the consideration in whether an accommodation is reasonable should be a long-term program to assist the student in becoming as independent of accommodations as possible. In conclusion, a wide range of accommodations currently are and should continue to be made available to disabled law students. Most accommodations involve little direct cost to the law school. Whether a particular accommodation is reasonable depends upon a case-by-case analysis in which the nature and severity of the disability must be weighed against essential law school functions, pedagogical goals, costs and benefits to both the school and the student, and the impacts which the accommodation will have on both the disabled student and her classmates. |
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