Sotomayor and the ADA/bar-exam case

by Walter Olson on June 4, 2009

As I mentioned last week at Point of Law:

The one case of [Sotomayor's] of which I’ve been most sharply critical over the years is Bartlett v. Bar Examiners, the famously long-drawn-out disabled-rights case in which Judge Sotomayor ruled that a seriously learning-disabled bar applicant who’d already failed the bar exam several times with extensive accommodations was legally entitled to yet further chances and accommodations. I wrote up the case here and here, among other places; Jim Dwyer of the Times has an account that is much more sympathetic to Bartlett’s cause.

Now a post by Anthony Dick at NRO “Bench Memos” gives a quick summary of why the case is so controversial:

you might think that, since reading ability is an important part of practicing law, and the bar exam is designed to ensure minimal competence among lawyers, papering over a test-taker’s lack of reading ability would somewhat defeat the purpose. It would seem clear to most people that, in the language of the ADA, compromising the standards of the test regarding a basic legal skill would not qualify as a “reasonable accommodation.” But that would be a decidedly unempathetic point of view. Such an attitude is in fact “invidious,” according to Sotomayor’s opinion.

It is far from clear that any of this will constitute so much as a speed bump on the path to Senate confirmation for Sotomayor, since lawmakers on the Hill have shown little or no interest in reining in adventurous interpretations of the Americans with Disabilities Act — indeed, when the Supreme Court moved on its own to rein some of them in, Congress responded with legislation to overturn the decisions and re-liberalize rights to sue under the law (cross-posted at Point of Law). A different view: Larry Ribstein.

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PointOfLaw Forum
06.04.09 at 8:05 am

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1 A.W. 06.05.09 at 9:07 am

Um, reading is needed to be a lawyer?

Then i guess we shouldn’t have blind lawyers, eh?

Or maybe we need to recognize that there are other ways to take in information besides reading. Such as being read to by others. And with the growth of speech recognition and text-to-voice conversion, the inability to read or write by sight is becoming increasingly irrelevant.

I have a friend with a full body disability, literally can’t even turn the pages of a book without help. He told me once that by his math he would have to make $80,000 year to pay for his staff of helpers. Given that he was accepted into Harvard Law School, he had a real shot at pulling that off.

And he can pull that off, who is the bar association to say he can’t be a lawyer?

I have been pretty harsh on Sotomayor, and i do think her nomination should be withdrawn. but she made exactly the right call, here. And, bluntly, i take a dim view of the idea of allowing an organization to decide whether you can practice in your chosen field because of what it estimates that you can do. i would rather say to the Bartletts of the world, “let’s let the market decide if you have any business being a lawyer.”

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