Wednesday, May 27, 2009

Judge Sotomayor sided with disability rights in case of law student with dyslexia

From The New York Times. Education Week's School Law Blog also discussed Judge Sotomayor's decision in Bartlett v. New York State Board of Examiners.

The woman sitting in the witness box was presented with a printed page, and asked to read it aloud. She used two hands and her lips. One index finger tracked the words left to right across the page; the other moved down the lines, from top to bottom. She mouthed the words to herself before speaking them. She read the word “indicted” as “indicated.”

The judge, Sonia Sotomayor, glanced at the clock. It was 11:13. At the end, she had a question for the witness, Marilyn Bartlett:

“What did you just read?”

“I haven’t got a clue,” Dr. Bartlett replied.

“Neither have I,” the judge said.

Although the passage was just 426 words, it had taken Dr. Bartlett — then a professor at the New York Institute of Technology, with a doctorate in education, a law degree and a verbal I.Q. measured as “superior” — 11 minutes to read it, the sentences so excruciatingly drawn out that no one could remember their meaning.

For 21 days in 1995, Judge Sotomayor heard testimony in the case of Marilyn Bartlett v. New York State Board of Law Examiners, a lawsuit brought under the Americans With Disabilities Act against the state agency that administers the bar exam. Because of her problems with reading, Dr. Bartlett wanted more time to take the exam and permission to use a computer to write the essays. The board turned her down.

At the time of the trial, Judge Sotomayor, who was nominated for the Supreme Court on Tuesday by President Obama, had been on the federal district court bench for three years. She became a national figure after issuing an injunction against the owners of Major League Baseball, effectively ending an eight-month strike. Out of the spotlight, she labored on cases like Dr. Bartlett’s.

“She was concerned with the life behind the caption,” said Jo Anne Simon, the lawyer who represented Dr. Bartlett.

The case, though, demanded far more than empathy for the plaintiff — it also required a command of statistics and an understanding of standardized reading tests. The disabilities rights act had become law only five years earlier. And the “field of learning disabilities is replete with chaos,” Judge Sotomayor remarked, with little agreement among experts on what constituted a disability or how to measure it. The state board suggested that with help from experts, Dr. Bartlett was faking her problems.

After making her way through graduate school with some allowances made for her poor reading skills, Dr. Bartlett decided to go to law school. After a year, her tested reading level was fourth grade, ninth month. When she filed to take the bar exam in 1991, she applied for extra time, a computer, permission to circle the right answer — instead of filling in a dot on a sheet that would be read by a machine — and a place to take the test other than the cavernous Jacob K. Javits Convention Center.

The board turned her down. She took the test and failed. Applied again. Was turned down again. Failed once again. Dr. Bartlett sued for the accommodations that she said she was entitled to under the disabilities act. The state said her scores on a reading test were too high to qualify for them. The case, a parade of experts giving technical testimony, was tried without a jury in front of Judge Sotomayor.

“She read everything and would ask us questions the next time we were in court,” Ms. Simon said. “She was very demanding.”

In ruling for Dr. Bartlett, Judge Sotomayor said that the state mistakenly relied just on tests of disputed value. “The board (like many others in the public) wants the comfort of a test score to measure this complex process,” she wrote. But, she said, “A learning disability is not measurable in the same way a blood disease can be measured in a serum test.”

Dr. Bartlett, she said, was an intelligent, highly articulate person who read “haltingly, and laboriously,” slower than 78 percent of 14-year-olds on a test.

“For those of us for whom words sing, sentences paint pictures, and paragraphs create panoramic views of the world, the inability to identify and process words with ease would be crippling,” Judge Sotomayor wrote.

Dr. Bartlett never did pass the bar, even with extra time. Now the dean of the School of Education at Texas A&M University-Kingsville, she was reached by phone on Tuesday in Mexico, delighted by Judge Sotomayor’s nomination.

“Even when we didn’t know which way the case was going to go, she seemed fair,” Dr. Bartlett said. “The consummate judge.”