Beruflich Dokumente
Kultur Dokumente
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01-00128
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APPLICABLE LAW
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Section 202 of the ADA (42 U.S.C. § 12132) provides that --
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of its obligation to provide appropriate accommodations and must
give them an opportunity to provide advance notice of their need
for accommodations. The Board 'may require applicants to submit
appropriate documentation, at the applicants' expense, of their
disabilities and of any modifications or aids that would be
required, provided that the requests for documentation are
reasonable and limited to the need for the modification or aid
requested. Appropriate documentation might include a letter from
a physician or other professional, or evidence of a prior
diagnosis or accommodation, such as eligibility for a special
education program. The applicant may be required to bear the
cost of providing such documentation, but the entity
administering the examination cannot charge the applicant for the
cost of any modifications or auxiliary aids, such as amanuenses,
provided for the examination.
3 28 C.F.R. § 35.106.
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FINDINGS OF FACT
CONCLUSIONS OF LAW
5. In the cases of XXX , XXX , XXX , XXX , XXX , XXX , XXX , and XXX ,
documentation of the need for extra time was provided by the
applicant, but the Board refused the requests without
justification based on medical or professional judgment. The
Board's refusal to make reasonable modifications in the length of
time permitted for completion of the examination where such.
modifications were necessary to provide those individuals with
disabilities an opportunity to demonstrate the legal knowledge
and legal reasoning skills that the examination purports to
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measure that was equal to the opportunity provided to individuals
without disabilities, was a violation of 28 C.F.R. §§ 35.130(a)
and 35.130(b) (6) and (7).
6. In the cases of XXX , XXX , XXX , XXX , XXX , XXX , XXX , XXX , and
XXX , by refusing to extend the testing period beyond the two
regularly scheduled days, the Board has provided alternative
testing conditions for individuals with disabilities that are not
comparable to the conditions provided for individuals without
disabilities. The conditions provided for individuals with
disabilities are substantially inferior to the conditions
provided for individuals without disabilities and do not provide
individuals with disabilities an opportunity to demonstrate the
legal knowledge and legal reasoning skills that the examination
purports to measure that is equal to the opportunity provided to
individuals without disabilities. These actions violate 28
C.F.R. § 35.130(a); (b)(1)(ii); (iii); and (vii); and (b)(6) and
(7).
7. In the cases of XXX , XXX , XXX , and XXX ,the Board provided
the requested accommodation only after individuals with
disabilities undertook or threatened legal action in order to
obtain the accommodations that the individuals' documentation
established were necessary to provide such individuals with
disabilities an opportunity to demonstrate the legal knowledge
and legal reasoning skills that the examination purports to
measure that is equal to the opportunity provided to individuals
without disabilities. These actions violate 28 C.F.R.
§ 35.130(b)(1)(Vii).
8. In the cases of XXX , XXX , XXX , XXX , XXX , XXX , XXX , XXX , and
XXX, the Board did not conduct individualized assessments to
determine the modifications required to ensure that the
examination accurately reflected the legal knowledge and legal
reasoning skills of each particular individual with a disability
requesting accommodations.
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accommodation to individuals who were similarly situated but did
not have a disability.
REMEDIES
Sincerely,
James P. Turner
Acting Assistant Attorney General
Civil Rights Division
FINDINGS OF FACT
1. ACCESS TO RECORDS
As set out in our letter of May 25, 1993, in June 1992, the
Department received two complaints alleging violations of title
II of the ADA (42 U.S.C. §§ 12131-12134) by the New York Board of
Law Examiners. The complainants, Robert Pipia and Scott Rippa,
alleged that they were denied certain accommodations that they
requested for the New York State Bar Examination, scheduled for
July 26 and 29, 1992. Both complainants alleged that the
accommodations they requested were necessary, based on the nature
and severity of their disabilities, and that they had provided
sufficient medical and other justification to support their
requests.
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On June 2, the Board responded by agreeing to allow the
Department to review the files of the applicants who had returned
their release forms. The Board refused, however, to allow access
to the files of individuals who denied consent to the release of
their files or whose responses had not been received. The
Department accepted the offer of partial access, but advised the
Board that our position concerning our authority to review all of
the documents the Department requested remained unchanged. on
June 4, the Board provided the files of 34 applicants for
inspection and copying, approximately 10% of the 322 applicants
who requested accommodations for the February and July 1992 and
the February 1993 examinations.
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on Wednesday of the week the test is scheduled. These hours are
extended for individuals with disabilities who are granted
additional time as an accommodation, but the Board generally does
not extend the additional hours over additional days.
3/Id. at ES-3.
5/Id. at 9-8.
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B. Application Procedures
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C. Auxiliary Aids and services
D. Appeals
E. Application Deadlines
F. Other Policies
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or with the Department of Justice. 7 The Department finds that,
based on the evidence available to the Board at the time it made
its determination, it is more likely than not that the Board's
decision, prior to the filing of the complaint, denied these
applicants accommodations that were necessary to provide them an
opportunity to demonstrate the legal knowledge and legal
reasoning skills that the examination purports to measure that
was equal to the opportunity provided to individuals without
disabilities. Denial of such accommodations without provision of
competent evidence from a Qualified expert to refute the evidence
provided by the applicant violates both the substantive and
procedural requirements of title II. (See D'Amico, 813 F. Supp.
at 223.)
XX8
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XXX is an individual with a neuromuscular disorder rendering
him functionally quadriplegic with a resulting low threshold for
fatigue. In applying to take the examination, XXX requested
double time for taking the examination, rest periods, and
additional exam days to allow for the additional testing time and
rest periods.
After the Board settled the suit filed by XXX the Department
advised the Board that it was prepared to find the Board in
noncompliance with title II and to recommend that suit be filed
against the Board pursuant to 28 C.F.R. § 35.174. The Board
subsequently agreed to provide the full additional time requested
by XXX (one and two-thirds of the standard time, rather than the
one and one-half time it had previously agreed to) and to
cooperate with the Department in the administrative investigation
of the Board's policies that was initiated on the complaints.
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XXX
The Board did not dispute that the plaintiff was a qualified
individual with a disability and was entitled to accommodations
under the ADA, but argued that allowing her unlimited time to
take the examination within the two regularly scheduled days was
sufficient to meet its obligation. The Board agreed that any
security issues raised by extending the examination over
additional days could be resolved. in making this decision, the
Board rejected the medical opinion of plaintiff's treating
physician, but did not consider or produce any medical opinion or
evidence to contradict the recommendation submitted by the
plaintiff. The court found that "(w)ithout addressing
Dr. XXX medical opinions, the Board, by fiat, determined
that plaintiff Is request was unreasonable and not required."
F. Supp. at XXX . The court granted the injunction, finding that
the Board's decision to disregard the opinion of the plaintiff's
treating physician was "unwarranted and ill-advised and (could
not) withstand scrutiny under the ADA."
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B. Additional victims
XXX
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November 7 through 30, 1990. 10 The neuropsychologist
recommended that essay tests "should be given under untimed
conditions" and expressed hope that XXXX would be provided with
"a bar examination which can be administered under conditions which
will not penalize her for her selective cognitive impairments."
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June 25, 1992 letter to XXX from Mr. Fuller offers the same
accommodations that were provided for the February 1992
examination and states that 11(t)he Board has considered your
request and determined that we cannot exceed that which was
previously provided to you." There is no other medical
information in the file. XXX did not take the July 1992
examination.
XXX
XXX
XXX
XXX sought double time and a separate testing room for the
July 1992 examination as an accommodation for her learning
disability. In support of her request, she submitted psycho-
educational evaluations from April 1989 and April 1992. The 1989
evaluation was done by an educational consultant at the Reading
and Learning Disorders Center in Rochester, Hew York, who
administered a number of tests, including the Wide Range
Achievement Test, subtest of word recognition; the Peabody
Individual Achievement Test, subtest of word recognition; the
Peabody Picture Vocabulary Test, Form L; and the Peabody reading
comprehension test. Based on the results of these and other
tests, the consultant recommended that XXX should "have time
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constraints waived" on "tests that require reading speed and
comprehension" and "should not be judged by timed reading tests
or tests that require an individual to function within a specific
time."
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XXX applied to take the February 1993 examination and sought
the same accommodations (double time and a separate testing room)
that she had previously requested. She submitted the same
evaluations that she had submitted for the July examination. She
also submitted a letter citing the ADA and the cases filed
against the Board by other applicants. The letter did not
explicitly threaten litigation, but did indicate that XXX was
aware of her rights under the statute and that she was willing to
exercise them.
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conditions that gave XXX an equal opportunity to demonstrate the
legal knowledge and legal reasoning skills that the examination
purports to measure.
XXX
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that the request for bathroom access was based on frequent
urination, which is a side effect of XXX medication. 15
VICTIMS OF DISCRIMINATION
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