DISABILITY DISCRIMINATION LAW: THE IMPACT ON LEGAL EDUCATION AND THE LEGAL PROFESSION. Laura Rothstein *

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1 DISABILITY DISCRIMINATION LAW: THE IMPACT ON LEGAL EDUCATION AND THE LEGAL PROFESSION Laura Rothstein * Disability discrimination law affects every lawyer, even those who do not plan to represent clients with disabilities or practice in the area of discrimination law. It also affects every law school and every institution of law, from the courts to federal governmental agencies. It affects gatekeepers to legal practice the Law School Admission Council and the state bar admission authorities. It applies to areas of concern for the American Bar Association accreditation process and the Association of American Law Schools membership requirements. The fortieth anniversary of the beginning of federal policy prohibiting discrimination on the basis of disability is a good time to reflect on the impact on legal education and the legal profession. The year 1973 was a significant year in the law for several reasons. Two significant Supreme Court decisions Roe v. Wade 1 and San Antonio v. Rodriguez 2 were decided that year. The Watergate hearings highlighted an array of legal issues ranging from separation of powers to ethical issues. These cases and developments received substantial attention within the legal profession and within legal education. The general public was very aware of these legal developments as well. Below the radar screen of attention, however, was the passage of an extraordinarily significant law Section 504 of the Rehabilitation Act 3 that would provide the framework and underpinnings of what would become a major part of the lives of all lawyers, law schools, legal institutions (courts, criminal justice system, etc.) and of all Americans. At the time Section 504 was passed, however, there was little to indicate what an enormous impact this law would make. Forty years later, we can reflect * Professor of Law and Distinguished University Scholar, University of Louisville Louis D. Brandeis School of Law. This commentary is based on a lecture given on March 20, 2013, for the Faculty Showcase Series sponsored by the Brandeis School of Law Student Bar Association and University of Louisville Law Review. Appreciation is expressed to Jacob Giesecke (SBA President, J.D., 2013) and Edward M. O Brien (Editor in Chief of the Law Review, J.D., 2013) for initiating this series and for recognizing the value of faculty scholarship. Appreciation is also extended to Robin Rice for his kind introduction at that event. The author is currently writing a comprehensive law review article about these issues. 1 Roe v. Wade, 410 U.S. 113 (1973). 2 San Antonio v. Rodriguez, 411 U.S. 1 (1973) U.S.C. 794 (2012). 429

2 430 UNIVERSITY OF LOUISVILLE LAW REVIEW [Vol. 51:429 on how the Rehabilitation Act changed not only the lives of all Americans by changing the physical environment of buildings and public spaces and providing a more accessible world in many ways but particularly how it has changed the work that lawyers do, how they do it, and how legal education provides access to students with disabilities and trains them to address issues relating to disability policy and law. Section 504 of the Rehabilitation Act provides that programs receiving federal financial assistance may not discriminate on the basis of disability. 4 Institutions of higher education, including law schools, were included in that coverage. For several years, however, there was little awareness of the law, little knowledge by legal professionals about how to enforce the law, and nothing much changed. Once regulations were promulgated in 1978 and courts began interpreting the Rehabilitation Act, awareness and understanding increased. By 1990, advocacy groups had succeeded in convincing Congress that a broader law was needed, and the Americans with Disabilities Act ( ADA ) 5 was enacted. This made disability discrimination law applicable to employers (with fifteen or more employees), state and local governmental programs (such as courthouses, prisons, and police departments), and twelve categories of private providers of public accommodations (including lawyers who provide service to the public). The enactment of the Americans with Disabilities Act in 1990 applied virtually the same legal requirements as the Rehabilitation Act and made disability discrimination laws more broadly applicable to the legal profession, affecting both employment of attorneys and provision of services to clients with disabilities. Bar admission authorities, which were not subject to the Rehabilitation Act, are covered under the ADA. The Law School Admission Test, which was not directly affected by the Rehabilitation Act, is covered under Title III of the ADA. The 2008 ADA Amendments broadened the definition of who is disabled, so that today s judicial focus is less on whether the individual has a disability and more on whether the individual is otherwise qualified and what reasonable accommodations are required. The 2008 amendments were particularly significant in light of the high number of cases involving individuals with learning disabilities and the LSAT and bar exams. 4 In 1973, the term handicap was used, but that has been amended and replaced by the term disability. 5 Americans with Disabilities Act of 1990, Pub. L. No , 104 Stat. 327 (codified as amended at 42 U.S.C (2012)).

3 2013] Disability Discrimination Law 431 Both Section 504 and the ADA protect individuals who are substantially limited in one or more major life activities, those who have a record of such an impairment, or those who are regarded as having such an impairment. This definition covers not only those with mobility and sensory impairments (vision and hearing), but those with learning disabilities and those with mental impairments or impairments resulting from substance abuse. Since 1973 the application of disability discrimination law to legal education and the legal profession has been clarified, with an enormous body of judicial opinion and regulatory guidance. The American Bar Association, the Association of American Law Schools, the Law School Admission Council, the National Conference of Bar Examiners, and other organizations have responded by sponsoring studies and issuing reports and recommendations on an array of issues relating to disability discrimination law. So what are the areas that have been affected that relate to the legal profession and legal education? They are much more numerous than most might realize. They include accessibility in courthouses and prisons, accessibility in the law office (both for clients and the attorneys), and accommodations such as sign-language interpreters for individuals with hearing impairments. Website accessibility for those with visual impairments may be required of law schools and of law firms and government agencies. Significant attention has been given to mental health and substance abuse issues, as well as accommodations for learning disabilities and related disabilities (such as ADD, ADHC, and anxiety disorders). These issues are significant within law schools and the legal profession because they apply at the initial admission stage, then during law school, and ultimately to entry into and in the practice in the profession. Substantial judicial attention has been given and continues to focus on issues of test accommodations for both law school admissions and bar admissions. Character and fitness issues involving individuals with mental health and substance abuse histories are frequently addressed by the courts. Currently attention is being focused on whether accommodated LSAT tests should be flagged. Several recent cases have addressed accommodations on the bar exam for individuals with visual impairments and what deference should be given to the fact that the requested accommodations had been granted while in law school. Technology issues arise not only in the area of accessible websites for law schools and law firms, but also with respect to accommodations for individuals taking online courses or distance learning. Use of Kindle and

4 432 UNIVERSITY OF LOUISVILLE LAW REVIEW [Vol. 51:429 similar readers can raise issues of access for individuals with visual impairments. Mental health issues are increasingly a matter of attention because of the high rates of mental health and substance abuse problems for law students and within the profession. This concern raises issues of character and fitness and reporting diagnosis and treatment (rather than only behavior and conduct) to bar admission authorities. It raises issues of whether a condition rises to the level of substantially limiting a major life activity so that the lawyer or law student might be entitled to reasonable accommodations. This can be an issue in the context of sanctions for misconduct in practice. In the practice of law itself, regardless of whether an attorney regularly handles disability discrimination cases, disability issues can arise. Construction law can involve issues of compliance with accessible design standards. Property law might involve zoning or private deed restrictions that may affect group homes for individuals with intellectual disabilities or putting a ramp on the front of a house in contravention of home owner association design standards. Clients may bring questions about whether emotional-support animals must be allowed in an apartment with a no-pets clause. Even Disneyland must deal with whether to allow Segways. Disability law is not a narrow area that only a few lawyers will see. Section 504 and the ADA have ensured substantially greater access for a large segment of society. These statutes have surely affected law schools, the practice of law, and the clients who are served. While disability policy requirements continue to be fine-tuned and clarified, it is important to recognize the value of this forty-year-old mandate to society. In light of the fact that approximately one in five Americans has a disability, this policy has opened the world to many. The public awareness of disability policy has increased dramatically, particularly in light of high-profile stories involving athletes with disabilities and other human interest stories that frequently are told in the popular press and on television programs. The understanding of the challenges faced by those with disabilities and the importance of laws protecting those individuals has increased substantially in the past forty years. At the University of Louisville Louis D. Brandeis School of Law lobby entrance, there is a mosaic with a quote by Justice Louis D. Brandeis. Our students pass this every day. The quote states that knowledge is essential to understanding and understanding should precede judging. As more is learned about the societal value of nondiscrimination and reasonable accommodation within legal education and the legal profession, people will

5 2013] Disability Discrimination Law 433 better understand these issues and judge the benefits of these laws and those affected by them with appropriate perspective and renewed appreciation.