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Forty Years of Disability Policy in Legal Education and the Legal Profession: What Has Changed and What Are the New Issues Laura Rothstein

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Forty Years of Disability Policy in Legal Education and the Legal Profession: What Has Changed and What Are the New Issues Laura Rothstein Journal of Gender, Social Policy & the Law Volume 22 | Issue 3 Article 1 2014 Forty Years of Disability Policy in Legal Education and the Legal Profession: What Has Changed and What Are the New Issues Laura Rothstein Follow this and additional works at: http://digitalcommons.wcl.american.edu/jgspl Part of the Law Commons Recommended Citation Rothstein, Laura. "Forty Years of Disability Policy in Legal Education and the Legal Profession: What Has Changed and What Are the New Issues." American University Journal of Gender Social Policy and Law 22, no. 3 (2014): 519-650. This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in Journal of Gender, Social Policy & the Law by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. Rothstein: Forty Years of Disability Policy in Legal Education and the Legal FORTY YEARS OF DISABILITY POLICY IN LEGAL EDUCATION AND THE LEGAL PROFESSION: WHAT HAS CHANGED AND WHAT ARE THE NEW ISSUES? LAURA ROTHSTEIN I. Introduction and Overview ..................................................................... 523 II. Historical Overview .............................................................................. 526 Professor of Law and Distinguished University Scholar, University of Louisville, Louis D. Brandeis School of Law; B.A., University of Kansas; J.D., Georgetown University Law Center. While many portions of this Article are informed by work on a range of task forces, committees, workgroups, boards, and speeches given to organizations (including the Association of American Law Schools, the American Bar Association Section of Legal Education and Admission to the Bar, the Law School Admission Council, the National Conference of Bar Examiners, the National Association of Law Placement, the National Association of College and University Attorneys, and the Association of Higher Education and Disabilities), the views expressed in this Article are my own. I am also informed by my own experiences as a faculty member in legal education since 1976 and as an administrator (Director of Admissions, Associate Dean for Student Affairs, Associate Dean for Graduate Studies, and Dean) at various times since 1976. I am grateful to a number of individuals and organizations that have provided opportunities for me to develop my perspectives on higher education and disability law. These individuals include Leigh Taylor, E. Gordon Gee, Betsy Levin, Frank (Tom) Read, the late Marilyn Yarbrough, and Michael Olivas. My work seeks to carry out my goal of being an “advocate through education”—that by informing individuals and institutions about the law, they might better put in place policies, practices, and procedures, and make informed decisions about how to address situations involving individuals with disabilities through proactive means rather than through litigation. The preparation of this Article was assisted greatly by my research assistants Robin David Rice and Jonathan Rayman. Becky Wenning and Rita Siegwald were very helpful in preparing the manuscript drafts. I appreciate the support of my scholarship by Dean Susan Duncan. 519 Published by Digital Commons @ American University Washington College of Law, 2014 1 Journal of Gender, Social Policy & the Law, Vol. 22, Iss. 3 [2014], Art. 1 520 JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 22:3 A. The Statutes and Regulations ..................................................... 528 1. Key Principles ..................................................................... 528 2. Section 504 of the Rehabilitation Act .................................. 529 3. The Americans with Disabilities Act of 1990 ..................... 532 4. The Americans with Disabilities Amendments Act of 2008 ................................................................................... 534 B. Judicial Attention and Federal Agency Attention Generally ..... 535 III. Impact on Legal Education and the Legal Profession ......................... 545 A. Definition of Coverage .............................................................. 545 1. What Impairments Are Protected Disabilities? ................... 545 a. Learning and Related Disabilities .................................. 547 b. Mental Conditions ......................................................... 551 c. Substance Use and Abuse .............................................. 552 d. Sensory Impairments ..................................................... 553 e. Known Disabilities ......................................................... 553 f. Transitory and Minor Impairments ................................ 553 2. Otherwise Qualified ............................................................. 553 3. Direct Threat ........................................................................ 555 B. Reasonable Accommodations .................................................... 556 1. Responsibility and Standards ............................................... 557 2. Fundamental and Essential Requirements ........................... 562 3. Undue Burden ...................................................................... 564 4. “Best Ensures” Standard ...................................................... 564 5. Deference to Past Accommodations .................................... 566 6. Documentation Issues .......................................................... 570 a. General Overview .......................................................... 570 b. Qualifications for Documenting .................................... 572 c. Currency of Documentation ........................................... 572 d. Documentation Relating Disability to Requested Accommodation .......................................................... 573 e. Payment for Documentation .......................................... 574 7. Auxiliary Aids and Services ................................................ 574 a. General Requirements .................................................... 574 b. Accommodations for Individuals with Hearing Impairments ................................................................. 577 c. Accommodations for Individuals With Visual Impairments ................................................................. 578 d. Tutors ............................................................................. 579 e. Accommodations for Clients and Attorneys With Disabilities ................................................................... 579 8. Modification of Policies, Practices, and Procedures ........... 580 a. Testing............................................................................ 582 b. Reduced Course Loads and Impact on Financial Aid .... 586 http://digitalcommons.wcl.american.edu/jgspl/vol22/iss3/1 2 Rothstein: Forty Years of Disability Policy in Legal Education and the Legal 2014] FORTY YEARS OF DISABILITY POLICY 521 c. Second Chances ............................................................. 587 d. Attendance ..................................................................... 588 e. Excusing Performance or Behavior Deficiencies .......... 588 f. Billable Hours and Related Issues .................................. 589 g. Employee Transfer, Job Reassignment, or Job Restructuring ............................................................... 590 C. Mental Health and Substance Use and Abuse Issues ................. 590 1. Definition of Disability for Mental Health and Substance Abuse ................................................................................. 591 2. Otherwise Qualified ............................................................. 592 3. Law School Admission and Enrollment .............................. 594 4. Professional Licensing ......................................................... 594 D. Technology Issues ...................................................................... 598 1. Law School Instruction ........................................................ 598 2. Distance Learning ................................................................ 599 3. Websites .............................................................................. 600 4. Archived Materials .............................................................. 601 5. Access in the Courtroom ..................................................... 601 E. The Law School Experience ....................................................... 601 1. Treatment of Law Students With Disabilities ..................... 601 2. Curriculum Including Disabilities Issues............................. 603 3. Clinical Programs and Internships/Externships ................... 606 4. Study Abroad Programs ....................................................... 608 F. Faculty Issues ............................................................................. 608 G. Impaired Attorney Issues ........................................................... 609 H. Client Issues ............................................................................... 612 1. Providing Accommodations ................................................ 612 2. Other Issues ......................................................................... 612 I. Architectural Barrier Issues ......................................................... 612 1. Law Schools .......................................................................
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