Marilyn Bartlett — Lawyer V. New York Bar

Circa 2004

Marilyn Bartlett was a senior in college when she made a life-changing discovery—her performance struggles in school had been caused by dyslexia. She could not imagine then that her new understanding would lead her two decades later to an 11-year battle with the New York Board of Law Examiners, and that her victory would establish legal precedent affecting access to accommodations for countless others with learning disabilities seeking to enter professional careers.

“I was an elementary education major, and one of my professors was teaching us how to diagnose reading problems in children by testing ourselves and each other. At one point we were using a controlled reader, a precursor to the computer, which showed only one word at a time as it went across the page, or a phrase or sentence. She said, ‘Bring it up to your own reading speed and then I’ll show you a couple of things.’ As she walked behind us she tapped me on the shoulder and said, ‘Bartlett, bring it up to your reading speed.’ I must have flashed her a look that said, ‘Are you crazy? This is my reading speed.’ After class she asked me, ‘Do you know how slowly you read?’ I said no, and I was thinking, ‘This woman is crazy, because I’ve been reading all my life.’ She said, ‘How can you not know?’ My reading speed was at the fourth grade level.”

So began a journey of discovery for Marilyn Bartlett, a discovery of the concepts of learning disorders and the explanation for her average performance throughout high school and college despite obvious intellect and musical talent. She realized that she had come to rely on a complex system of self-accommodations.

“What I didn’t know was that the rest of you don’t see the written word the way I do. When I read a paragraph I start with a single word and figure out the letters—is the circle first or is the line first, is that line above the middle or below the middle? Am I looking at a b or a p, a d or a q? Then I go on to the next letter. Once I have deciphered the letters by this complex cognitive activity, I go back and put the sounds together. Then I go on to the next word. Once I’ve figured out all the words in the sentence, I read the whole sentence, and ultimately the whole paragraph. At that point I have to judge whether I have read one of the words incorrectly or forgotten an important word, like not. If the whole paragraph doesn’t hang together contextually, I suspect there’s a word wrong someplace and I have to go back and find it. I lack a skill called automaticity. Other people who read words then have those words in their heads and recognize them the next time they see them. Every time I look at a word it’s like seeing it for the first time.” Bartlett’s writing is similarly labored and she has problems with spelling.

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Unfortunately, Bartlett’s difficulties were misunderstood through most of her schooling. “If I had a nickel for every time one of the teachers or administrators told my parents that I wasn’t trying, I wouldn’t have to work today,” says Bartlett. During the 1950s and 1960s, not only did learning disabilities frequently go unrecognized, but there was no culture of responsibility for educational programs to adapt their curricula to assist students with learning difficulties. “I was already out of college for four years when the IDEA was passed [the Individuals with Disabilities Education Act requires schools to provide individualized educational programming for students with learning disorders and other disabilities]. When I was in grammar school, they would look at somebody like me and say, ‘She’s too bright, she’s not trying.’”

To the professional educators in her PhD program in the School of Education at New York University, Bartlett’s learning disability was obvious, and they provided extra time for her comprehensive exams. When she decided to go to law school she realized the sheer volume of reading and writing would force her to request formal accommodations, and she underwent an expensive battery of tests to confirm her disability. As a result, Bartlett received extra time for law school exams from Vermont Law School, and had similar accommodations for the multi-state professional ethics exam required for all U.S. attorneys.

Bartlett next wanted to take the New York bar exam. She applied to the bar the same year the Americans with Disabilities Act (ADA) passed, which required reasonable accommodations on licensing exams for applicants with disabilities, including learning disabilities. But to receive extra time for the exam, first she had to prove to the New York Board of Law Examiners that she did indeed have a learning disability. According to Bartlett, the Board administrator told her rather pointedly, “Someone with a PhD and a JD can’t possibly be LD.” (At trial later he admitted to believing that one could buy a diagnosis, that real learning disabilities were very rare, and that most people claiming to have learning disabilities did not really have them. He also did not deny he had previously stated it was his “job to protect the public from incompetent and incapable lawyers” and that the public would be “unaware that they would be purchasing a defective product in the case of learning disabilities.”)

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In pressing her application, Bartlett encountered one of the most blatant examples of the lack of common understanding about learning disabilities and related disorders, such as attention deficit disorder (ADD), when the ADA legislation was drafted. Although these are life-long disorders with an unchanging biological basis, the ADA specifies that tests submitted as documentation must have been done within the previous three years. Bartlett comments, “It’s a nonsensical requirement, because the disability doesn’t change. If you’re blind, you’re blind. You’re not suddenly going to be sighted again.” Bartlett was denied accommodations because her tests were from the beginning of law school, a couple of months older than three years. She took the bar exam without accommodations and did not pass.

Afterward, Bartlett repeated the neuropsychological testing that again verified her learning disability. However, the Board again rejected her application for accommodations, saying that she was still functioning at too high a level, above the cut-off performance score they had established for acknowledging an applicant as learning-disabled. Although the accommodation she was requesting was extra time, the only tests considered relevant by the Board’s consultant were untimed tests, which did not address Bartlett’s need for this specific accommodation.

At that point she was introduced to Jo Anne Simon, an attorney with affinity for disability law. Although precedents were few, Simon agreed to take the case. They prepared a lawsuit and filed an injunction so that Bartlett could take the fast-approaching next exam with accommodations while the court sorted out afterward whether she deserved them. “Jo Anne told me, ‘As long as you understand that you could get accommodations and pass the exam, but then lose your appeal. Then they would take your positive exam results away and you’d have to take the exam again.’ It was worth the risk. I knew I was deserving of extra time, so I didn’t see how I could lose.”

The court proceedings went down to the wire. The night before the exam the federal district court granted not only extra time, but also use of an amanuensis [from the Latin phrase a manu, meaning at handwriting], an individual who would write for her. “Jo Anne called me and asked, ‘Can you find somebody who would be willing to sit through two days of 9-hour exams?’ I contacted a retired NYU professor and said, ‘Hey, how would you like to take the New York bar?’ He thought I was kidding.”

Instead of two 6-hour exam days, Bartlett was granted two 9-hour exam days, divided into four and one-half hour blocks. Her proctor insisted there would be no food or drink, just like conditions for the shorter sessions. “We started the exam with my professor taking dictation. He was a big-time smoker and a couple of times he got up to have a cigarette outside in the hall. We had not practiced together and that slowed us down. I didn’t finish what I thought I should have, and I never had a chance to have him read my answers back to me, to make sure everything made sense. After six hours I was a wet dishrag; after nine hours I could have curled up in the corner and gone to sleep. In practice it was not the ideal situation and I didn’t do well.”

To maintain legal standing while her lawsuit was filed, Bartlett had to keep taking the exam. She took it a total of five times, preparing the last time during a period she was also nursing her husband, who had been diagnosed with cancer, through his recovery from surgery. When the suit was finally filed in the mid-1990s, she was able to postpone taking the exam again until it was settled. However, appeals dragged on and she was in and out of court until 2001. Her victory in 2001 establishes law for the U.S. second circuit, which encompasses New York, Vermont and Connecticut, and her case can be cited as legal precedent in challenges brought by professional students in the other circuits.

“My win in the second circuit means that students with learning disabilities going to professional schools like medical, dental, veterinary or law school, who are deemed to need accommodations by a qualified clinician—a clinical psychologist used to dealing with adults with learning disabilities and not just with children—are entitled to accommodations based on that expert’s clinical judgment, no questions asked.” Bartlett points out that testing adults for learning disabilities is very different from testing children, because adults have developed compensatory and masking strategies. These strategies may allow a roughly average performance on standardized tests, even when someone is substantially limited in certain aspects of performance—such as speed—compared to others of similar education or experience. The court agreed that evaluation of learning disabilities cannot rely solely upon test scores, but must also consider an individual’s total processing difficulties and requires clinical judgment.

During the period her case was in the courts, Bartlett’s career took a different direction. She returned to academic life, previously as director of graduate studies at the New York Institute of Technology, where she became a tenured associate professor of education, and most recently as associate professor in the Program of Educational Leadership and Curriculum Studies at the University of South Florida, St. Petersburg. She is the immediate past-president of the New York State Association of Colleges of Teacher Education, and is an editor of the New York State Association for Colleges of Teacher Education (NYACTE) Research Journal as well as the Long Island Education Review: a Peer-Reviewed Research Journal for Educational Professionals. Like many who attain two professional degrees, she has found a way to blend her expertise in both areas in her current work developing St. Petersburg’s doctoral program in educational administration. “Our program is for school administrators like principals who plan to become superintendents or assistant superintendents of school systems. I continue to teach law within the program—contract law applying to labor agreements, a lot of constitutional law about students’ and teachers’ rights, and a smattering of corporate law, because running a school district is indeed like running a corporation.”

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The main accommodation Bartlett needs now is the same she has needed since her mother helped her with homework at the kitchen table—someone to proofread her writing. She explains, “We are a little short on support services like secretaries, but my husband is a retired professor and he knows the business. He proofreads everything for me. With him and my computer, I can do anything.”

Surprisingly, Bartlett’s dyslexia has not led her to reduce the amount of writing she assigns in her courses. “In fact, I probably require more written assignments than my colleagues. Although it’s problematic for me, in their chosen profession my students need to be able to communicate well in writing. The only way to learn to do that is to write.” She takes a full day each week to read their assignments “very, very slowly.” She also frequently asks students to work in teams, just as they will do as real-life administrators, and the teams complete written assignments together. “So I’m looking at four papers a week for each class, not 17.”

At this point, the right to accommodations for the New York bar exam is a moot point for Bartlett herself. Aside from her plans to stay in Florida, it has now been more than a decade since her legal training, and the law has changed. Her work does not kept her up-to-date about domestic relations, sales, torts or criminal law, nor would taking the bar exam be relevant to her current career The vibrant professor, who brings a copy of The Little Engine That Could to her graduate classes, urges people with learning disabilities to persevere. She also tries to impart a respect for diversity to her students and the audiences to whom she speaks. She urges, “Never judge a book by its cover.”

by Gillian Friedman, MD

Dyslexia Adults Link

International Dyslexia Association

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