Disability Access to the Legal Profession: Timeline of Events and Links to Resources

ADA enacted

Title I covers many state, local, and private legal employers

Title II covers state courts, state bar and public law schools

Title III covers the LSAC, private law schools and private law firms

(Rehabilitation Act provides additional coverage, including of federal legal employers and recipients of federal financial assistance including )

Following the passage of the ADA, the ABA’s Commission on the Mentally Disabled, established in 1973 to respond to the advocacy needs of persons with mental disabilities, is renamed and its mission broadened to serve all persons with disabilities. The new entity is the Commission on Mental and Physical Disability Law.

Access and Fairness Advisory Committee of the California Judicial Council created, with Subcommittee on Access for People with Disabilities.

Committee structure emerged from the Judicial Council’s 1994-95 strategic plan, which identified access, fairness, and diversity as a primary goal of the judicial branch. New committee builds on prior advisory committees, including on Gender Bias in the Courts and on Racial and Ethnic Bias in the Courts.

The Bar Association of San Francisco, together with attorney and filmmaker Abby Ginzberg, produce Breaking Down Barriers, a thirty-minute training video profiling law students and lawyers with disabilities.

Subcommittee on Access for People with Disabilities begins implementing the ADA in the California state court system.

Multi-phase research project initiated to assess perceptions and realities of disability access within the court system. Between August and October 1995, seven public hearings are conducted in six cities: Fresno, Los Angeles (two days), Oakland, Sacramento, San Diego, and San Francisco. Telephone (1,200 participants) and mail surveys (6,000 mailed, 1661 returned) completed.

Witnesses testified to problems of physical access to the courts, the need for improved accommodations such as enlarged print and sign language interpreters, barriers posed by court policies and procedures, such as court scheduling, and lack of knowledge and awareness of disability issues among court personnel.

Most survey respondents believed that persons with disabilities have less access to court programs, activities and services than persons without disabilities, including due to physical access barriers. Survey respondents corroborated public hearing testimony regarding physical access barriers and the lack of knowledge and awareness of disability issues among court personnel. Report: http://www.courts.ca.gov/documents/summarydisabilities.pdf.

Julie Clark proves that the Virginia Board of Bar Examiners’ “Character and Fitness Questionnaire” violates the ADA. Clark v. Va. Bd. of Bar Exam’rs, 880 F. Supp. 430 (E.D. Va. 1995).

California Judicial Council adopts Rule 989.3 (now Rule 1.100). New rule sets forth process by which persons with disabilities, including lawyers, parties, witnesses, and jurors, may request an accommodation to access a court’s programs, services, or activities.

Then-district court judge Sonia Sotomayor holds 21-day bench trial in Bartlett v. Bd. of Bar Examiners. Court finds that prospective lawyer Marilyn Bartlett has a disability under federal law and ordered the New York State Bar to provide testing accommodations. Bartlett v. New York State Bd. of Law Examiners, 970 F. Supp. 1094 (S.D. N.Y. 1997), motion for reconsideration denied, 2 F.Supp.2d 388 (S.D.N.Y. 1997).

Civic Center Courthouse opens in San Francisco with numerous access features.

Second Circuit upholds district court rulings in favor of Marilyn Bartlett. Bartlett v. New York State Bd. of Law Examiners, 156 F.3d 321 (2d Cir. 1998).

ABA adds “disability” to Goal IX (now Goal III): “To promote full and equal participation in the legal profession by minorities, women, and persons with disabilities.” With amended goal, the ABA Commission on Mental and Physical Disability Law begins collecting data on disability from members and leadership.

U.S. Supreme Court issues opinions in Sutton trilogy, sharply limiting the scope of “disability” under federal law. Court vacates and remands ruling in Bartlett case. New York State Bd. of Law Examiners v. Bartlett, 527 U.S. 1031 (1999).

California Legislature enacts Prudence Kay Poppink Act, confirming broad definition of “disability” under state law.

On remand, then-Judge Sotomayor again affirms rulings in favor of Marilyn Bartlett. Bartlett v. New York State Bd. of Law Examiners, 2001 WL 930792 (S.D.N.Y., Aug. 15, 2001).

State Bar of California conducts on-line survey of lawyers with disabilities. 150 lawyers participate. Approximately one half (45%) reported that they had been denied employment opportunities due to their disability. For lawyers with visible disabilities, the percentage was much higher (68%). Many reported problems obtaining reasonable accommodations. Report published 2004, available here: https://www.calbar.ca.gov/portals/0/documents/publiccomment/2004/Disability-Survey-Report.pdf.

Tennessee v. Lane, 541 U.S. 509 (2004). George Lane, a paraplegic, alleged that he was compelled to appear to answer a set of criminal charges on the second floor of a county courthouse that had no elevator. At his first appearance, Lane crawled up two flights of stairs to get to the courtroom. When Lane returned to the courthouse for a hearing, he refused to crawl again or to be carried by officers to the courtroom; he consequently was arrested and jailed for failure to appear.

In upholding a suit for damages under Title II against the state court, the Court considered a “pattern of unconstitutional treatment in the administration of justice.”

Judicial Council amends and clarifies Rule 989.3 to conform to California’s more expansive disability laws.

First National Conference on the Employment of Lawyers with Disabilities. Co-sponsored by ABA and EEOC.

During conference, EEOC unveils new factsheet on Reasonable Accommodations For Attorneys With Disabilities. Range of possible accommodations reviewed. Certain actions not required as accommodation. “Employers are not required to lower or eliminate production standards for essential functions, either quantitative or qualitative, that are uniformly applied. For example, a law firm may require attorneys with disabilities to produce the same number of billable hours as it requires all similarly situated attorneys without disabilities to produce.” Factsheet available here: http://eeoc.gov/facts/accommodations-attorneys.html.

Bar Association of San Francisco holds half-day conference on Hiring and Retaining Attorneys with Disabilities. The Honorable David Tatel is keynote speaker.

The National Association of Law Students with Disabilities (NALSWD) is formed and holds its first national conference. Originally sponsored by the ABA, NALSWD is now an independent nonprofit organization. Read about NALSWD here: http://www.nalswd.org/.

Rule 989.3 is renumbered and becomes Rule 1.100.

ADA Amendments Act enacted, broadening federal definition of “disability.”

Second National Conference on the Employment of Lawyers with Disabilities. Sponsored by the ABA Commission on Mental and Physical Disability Law.

Organizers urge legal employers to sign a pledge to promote disability diversity within their firms, companies, agencies, and organizations. Pledge continues to be promoted and expanded by the ABA Commission on Disability Rights, https://www.americanbar.org/groups/diversity/disabilityrights/initiatives_awards/pledge_for_change/.

Organizers note absence of statistics and other related information that would allow lawyers with disabilities to be identified and described, according to their disabilities and other essential employment-related categories.

Review of ABA data on lawyers with disabilities: In ABA survey of members, 6.7% disclosed disability in 2008; 7.2% in 2007. Rutgers analysis: 3.8%. BLS data: 2.9%.

Review of MCAA (Minority Corporate Counsel Association) data: Of the more than 4,400 attorneys from AmLaw 200 law firms that responded to the MCCA survey, approximately 2% self identified as a person with a disability.

MCCA noted that in their research, only 55% of women with disabilities responded that they were treated equally by their law firm peers. MCAA recommends that law firms audit their existing diversity efforts and initiatives with a view to making sure that they are broad and inclusive of the concerns and challenges faced by lawyers with disabilities.

Review of NALP data: About 1.5% of 2007 law graduates report a disability. The employment rate for this class was a 20-year high: 92% were employed nine months after graduation. For students with disabilities, the rate was 86%. Students with disabilities also were somewhat less likely to obtain jobs in private practice. For the class as a whole, 55.5% entered law firm practice, while for graduates with disabilities that rate was 49.4%. Law school graduates who reported disability were more likely to enter business or government jobs. Graduates with disabilities have lower starting salaries than nondisabled graduates. “When we look at these trends over time, the encouraging news is that these disparities across all diversity sectors have continued to shrink.”

ABA Conference Report, available on Wayback Machine, https://web.archive.org/web/20180501031018/https://www.americanbar.org/content/dam/aba/migrated/disability/PublicDocuments/09report.authcheckdam.pdf.

Justice Sonia Sotomayor – a Latina who publicly identifies as having a disability (Type 1 diabetes) – begins serving on the U.S. Supreme Court.

ABA Commission on Mental and Physical Disability Law changes its name to the Commission on Disability Rights. Mission statement: “To promote the ABA’s commitment to justice and the rule of law for persons with mental, physical, and sensory disabilities and their full and equal participation in the legal profession.”

Commission publishes Lawyers, Lead On: Lawyers with Disabilities Share Their Insights, edited by disabled lawyers Carrie G. Basas, Rebecca S. Williford, Stephanie L. Enyart.

Third National Conference on the Employment of Lawyers with Disabilities. Sponsored by the ABA Commission on Disability Rights.

The ABA House of Delegates adopts Resolution 111, urging the LSAC to change its practices with respect to test takers with disabilities who request and/or who receive accommodations on the LSAT.

Commission on Disability Rights publishes Goal III report. In 2011 survey, 4.56% of ABA members stated that they have a disability. Prior years described: 2010 (6.87%); 2009 (6.76%); 2008 (6.69%); 2007 (7.18%). Report: https://www.americanbar.org/content/dam/aba/administrative/mental_physical_disability/2012_GoalIII_Report.pdf.

California’s Department of Fair Employment and Housing (DFEH, now the California Civil Rights Department (CRD)), brings case against LSAC alleging a pattern and practice of discrimination against test takers with disabilities; the U.S. DOJ intervenes. Dep’t of Fair Emp’t & Hous. v. Law Sch. Admission Council, Inc., No. C-12-1830 EMC, 2012 U.S. Dist. LEXIS 150413 (N.D. Cal. Oct. 18, 2012).

California enacts AB 2122, amending the Education Code to add section 99161.5 regarding the LSAT. Chaptered bill here: http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_2101-2150/ab_2122_bill_20120926_chaptered.html.

LSAC sues State of California, alleging that AB 2122 violates its equal protection and free speech rights under the California Constitution.

LSAC loses its case challenging California’s law. Law Sch. Admission Council, Inc. v. State of Cal., 222 Cal. App. 4th 1265 (Jan. 13, 2014), review denied, No. S216650, 2014 Cal. LEXIS 2864 (Apr. 16, 2014).

DFEH and DOJ reach consent decree with LSAC. Dep’t of Fair Emp’t & Hous. v. Law Sch. Admission Council Inc., No. 12-cv-01830-JCS, ECF 203, Consent Decree (N.D. Cal. May 29, 2014), https://clearinghouse.net/doc/69024/; https://calcivilrights.ca.gov/legalrecords/consentdecree-in-dfeh-v-lsac/. Key provisions include diversification of expert consultants used by LSAC to review requests for testing accommodations and automatic grants of certain accommodations previously approved for test taker in standardized testing. Additional issues referred to Best Practices Panel.

In August 2014, the U.S. Department of Justice announces a settlement agreement with the Louisiana Supreme Court. The settlement prohibits the court from asking unnecessary and intrusive questions about bar applicants’ mental health diagnosis or treatment, and requires the court to refrain from imposing unnecessary and burdensome conditions on bar applicants with mental health disabilities, such as requests for medical records, compulsory medical examinations, or onerous monitoring and reporting requirements. https://www.justice.gov/opa/pr/department-justice-reaches-agreement-louisiana-supreme-court-protect-bar-candidates.

Best Practice Panel in LSAC litigation issues Final Report (Jan. 26, 2015), https://calcivilrights.ca.gov/LegalRecords/final-report-of-the-best-practices-panel/. Report states that accommodations previously granted in contexts other than standardized testing, such as such as extra time on college exams, shall presumptively support the request for the provision of similar testing accommodations on the LSAT. Report states: “All reviewers shall begin the process with the presumption that the testing accommodation request is justified.” Most of the report withstands LSAC’s challenge. Dep’t of Fair Emp’t & Hous. v. Law Sch. Admission Council Inc., No. 12-cv-01830-JCS, 2015 U.S. Dist. LEXIS 104751 (N.D. Cal. Aug. 7, 2015).

DOJ issues guidance document on testing accommodations. ADA Requirements: Testing Accommodations (Sept. 8, 2015, last updated Feb. 28, 2020), https://www.ada.gov/resources/testing-accommodations/. Where test taker documents accommodations “previously received on a similar standardized exam or high-stakes test,” testing entities should generally grant the same accommodation without further documentation. Testing entities should “defer to documentation from a qualified professional who has made an individualized assessment of the candidate,” and documentation requested should be reasonable and narrowly tailored to the information needed. Testing entities must respond in a timely manner to requests for accommodations and should provide a reasonable opportunity for applicants to respond to any requests for additional information and still take the test in the same exam cycle.

American Bar Association passes Resolution 102, urging bar authorities to eliminate questions about prospective lawyers’ mental health history, diagnoses, or treatment, and instead ask questions that focus on a bar applicant’s ability to practice law in a competent, ethical, and professional manner.

In February 2019, the Bazelon Center for Mental Health Law publishes a 50-state survey of bar admissions questions pertaining to mental health, school/criminal history, and financial issues, https://www.bazelon.org/wp-content/uploads/2019/12/50-State-Survey-To-Post.pdf.

Disabled law students created the Law School Disability Advocacy Coalition to share tips on how to navigate the often-complex process of receiving accommodations while entering the legal profession. This network ultimately becomes the National Disabled Law Students Association. https://ndlsa.org/about-ndlsa/.

Law professors with disabilities, including Katie Eyer and Katherine A. Macfarlane, successfully advocate for creation of Association of American Law Schools (AALS) affinity group for law professors with disabilities and allies. Affinity group goes on to provide content for annual AALS meeting and to advocate with AALS on issues relevant to disabled law professors, including reasonable accommodations and disability access to the conference for disabled participants.

In November 2020, then-Chief Justice Debra Stephens of Supreme Court of Washington (State) charters task force to study alternatives to the traditional bar exam.

In December 2020, Committee of Bar Examiners of the State Bar of California approves first iteration of revisions to rules governing testing accommodations on the bar examination. https://board.calbar.ca.gov/Agenda.aspx?id=15922&tid=0&show=100028113.

National Association for Law Placement (NALP) establishes the Neurodiversity in the Legal Profession Task Force. https://www.nalp.org/neurodiversity_primer.

American Bar Association publishes its 2021 Goal III Report. As of August 31, 2020, 7.4% of ABA members identified as having a disability. https://www.americanbar.org/content/dam/aba/administrative/diversity-inclusion-center/2021-aba-goal-iii-report-final.pdf.

Disability advocates urge rejection of proposed rules on testing accommodations on the California bar exam and set out the principles that the State Bar of California should follow. https://dredfstg.wpengine.com/wp-content/uploads/2021/03/2021-03-12-DREDF-and-LAAW-Comments-to-California-State-Bar.pdf.

In January 2022, the Oregon Supreme Court approves in concept two alternatives to the bar exam to become licensed to practice law through experience and supervision: the Supervised Practice Portfolio Examination (SPPE) and the Oregon Experiential Portfolio Pathway (OEPE), https://lpdc.osbar.org/.

On June 29, 2022, State Bar of California holds “Testing Accommodations Stakeholder Input Forum,” https://board.calbar.ca.gov/Agenda.aspx?id=16714.

In August 2022, the American Bar Association reviews progress in the elimination of mental health questions for bar exam applicants, releasing a video, https://www.americanbar.org/news/abanews/aba-news-archives/2022/08/impact-of-resolution-102/.

On September 16, 2022, State Bar of California holds second “Testing Accommodations Stakeholder Input Forum,” https://board.calbar.ca.gov/Agenda.aspx?id=16808.

On October 14, 2022, Committee of Bar Examiners of the State Bar of California approves second iteration of revisions to rules governing testing accommodations on the bar examination. https://board.calbar.ca.gov/Agenda.aspx?id=16831&tid=0&show=100034380.

In October 2022, LSAC distributes a survey to all 2022 law school matriculants with questions on disability.

American Bar Association publishes its 2022 Goal III Report. As of August 31, 2021, 7.5% of ABA members identified as having a disability. https://www.americanbar.org/content/dam/aba/administrative/diversity-inclusion-center/aba-goal-3-report-2022.pdf

In December 2022, NALP publishes data on disabled law graduates. While disability status is underreported by law graduates, the percentage of law graduates self-reporting a disability has grown in recent years (from 4.1% in 2019 to 5.5% in 2021). Law graduates with disabilities were more likely to be women or gender non-binary, and twice as likely to identify as LGBTQ. Disabled graduates were less likely to be graduates of color and were slightly older compared to their peers.

NALP reports that the employment rate for disabled 2021 graduates (85.8%) was about 6 percentage points lower than the overall employment rate for the class. Employed graduates with disabilities were almost twice as likely to take a job in public interest (15.4% vs. 8.7% for all graduates). Those employed in public interest were more likely to work for small law firms. Across all employer types, the median salary for graduates with disabilities was $7,500 less compared to the class overall ($72,500 vs. $80,000). This salary differential is attributable to the higher rate of public interest and small private law firm jobs. NALP, Employment Outcomes for Graduates with Disabilities (Dec. 2022), https://www.nalp.org/1222research.

Over three comment periods, one ending January 31, 2023, one ending July 31, 2023, and one ending October 7, 2023, disability advocates continue to push the State Bar of California to adopt rules that follow established principles on testing accommodations. https://dredfstg.wpengine.com/wp-content/uploads/2023/01/2023.01.31-DREDF-LAAW-DRA-Comments-w-Exhs-A-and-B.pdf, https://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000030512.pdf, https://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000031502.pdf, https://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000031684.pdf.

American Bar Association publishes its 2023 Goal III Report. As of July 24, 2023, 7.8% of ABA members identified as having a disability. https://www.americanbar.org/content/dam/aba/administrative/diversity-inclusion-center/2023-goal-3-report.pdf

Judge Jamal Whitehead, a Black man with a physical disability (uses prosthetic leg), begins serving as a federal judge for the United States District Court for the Western District of Washington. He previously represented the interests of people with disabilities in discrimination matters. Jordan Berger, disabled lawyer and NDLSA co-founder, serves in Judge Whitehead’s first class of law clerks.

In October 2023, LSAC publishes data from its disability survey: 12% of respondents identified as disabled. More than 50% of students with disabilities chose not to disclose to some or all the law schools to which they applied. LSAC, 2022 First-Year Law School Class: A Focus on Students with Disabilities, https://www.lsac.org/data-research/research/2022-first-year-law-school-class-focus-students-disabilities.

On November 7, 2023, the Oregon Supreme Court approves the Supervised Practice Portfolio Examination (SPPE) alternative to the traditional bar exam. The SPPE alternative is scheduled to be available starting in May 2024. https://www.osbar.org/sppe.

On November 16, 2023, State Bar of California approves new rules on testing accommodations, https://board.calbar.ca.gov/Agenda.aspx?id=17069, https://www.calbar.ca.gov/Portals/0/documents/Chapter-7-Testing-Accommodations.pdf. The approved rules automatically grant certain accommodations that were previously granted to the test taker, including additional time up to double time, but only for accommodations previously granted on standardized tests such as the LSAT. Accommodations previously granted on timed law school exams are not automatically granted. A private room, off-the-clock breaks, and additional time beyond double time are not automatically granted. Timeline problems for applicants are not resolved. The rules are not yet approved by the Supreme Court of California.

State Bar of California proposes a pilot project allowing law graduates to participate in a portfolio alternative to the two-day bar exam. https://www.calbar.ca.gov/About-Us/News/News-Releases/state-bar-of-california-board-of-trustees-approves-plan-to-pilot-alternative-pathway-to-licensure. Disability and legal services advocates support the proposal.

On March 15, 2024, the Supreme Court of Washington (State) approves alternative pathways to lawyer licensure, including apprenticeship and portfolio. https://www.courts.wa.gov/newsinfo/?fa=newsinfo.internetdetail&newsid=50389. The Court states: “After more than three years of extensive study – bringing together data and research with testimony from scholars and experts – the Task Force came to two important findings: The traditional bar exam disproportionately and unnecessarily blocks marginalized groups from entering the practice of law, and the traditional bar exam is at best minimally effective for ensuring competent lawyers.”

• American Bar Association, Commission on Disability Rights
• Job Accommodation Network
• National Association for Law Placement
• National Disabled Law Students Association
• National Association of Law Students with Disabilities