Posted on June 1, 2009

A Tale of Two Tests: Together We Learn to Read and Write

Francis Beckwith, What’s Wrong With the World, May 29, 2009


Consider two cases about two tests. The first, Bartlett v. the New York State Board of Law Examiners, is from 1997. The other, Ricci v. DeStefano, is presently on appeal before the U. S. Supreme Court, which will issue its opinion sometime soon. In the first case, the jurist who issued the ruling was Judge Sonia Sotomayor when she served on the bench of the Federal District Court of the Southern District of New York. In the latter case, the Supreme Court will be assessing a Second Circuit Court of Appeals ruling in which Judge Sonia Sotomayor participated.

What follows is a summary of the first case, found in the article authored by Ruth Shalit, “Defining Disability Down,” published in the August 25, 1997 issue of The New Republic:Consider the lawsuit filed in 1993 by an aspiring attorney named Marilyn J. Bartlett. Bartlett graduated in 1991 from Vermont Law School, where she received generous accommodations for her reading disability and a disability in “phonological processing.” Nonetheless, Bartlett did not do well, graduating with a GPA of 2.32 and a class standing of 143 out of 153 students. She then went to work as a professor of education at Dowling College, where, according to court documents, she “receives accommodations at work for her reading problems in the form of a full-time work-study student who assists her in reading and writing tasks.”

When it came time to take the bar exam, Bartlett petitioned the New York Board of Law Examiners for special arrangements. She wanted unlimited time for the test, access to food and drink, a private room and the use of an amanuensis to record her answers. Acting on the advice of its own expert, who reported that Bartlett’s test data did not support a diagnosis of a reading disorder, the board refused Bartlett’s demands. Three times, Bartlett attempted the exam without accommodation. After her third failure, she sued the board.

On July 3, 1997, Judge Sonia Sotomayor ruled in Bartlett’s favor. {snip} Judge Sotomayor did not challenge the board’s contention that Bartlett was neither impaired nor disabled, at least not in the traditional sense. In an enterprising new twist, however, she declared that Bartlett’s skills ought not to be compared to those of an “average person in the general population” but, rather, to an “average person with comparable training, skills and abilities”–i.e., to her fellow cohort of aspiring lawyers.

An “essential question” in the case, said the judge, was whether the plaintiff would “have a substantial impairment in performing [the] job” of a practicing lawyer. The answer to this question was “yes,” the judge found. And this answer–the fact that Bartlett would have a very hard time meeting the job requirements of a practicing lawyer–was, in the judge’s opinion, precisely the reason why Bartlett had a protected right to become a practicing lawyer. {snip}

To drive home her point, Judge Sotomayor triumphantly cited Bartlett’s performance during a courtroom demonstration of her reading skills. “Plaintiff read haltingly and laboriously, whispering and sounding out some words more than once under her breath before she spoke them aloud,” the judge recalled. “She made one word identification error, reading the word ‘indicted’ as ‘indicated.'”

It could, of course, be argued that the ability to read is an essential function of lawyering; that any law school graduate who cannot distinguish “indicated” from “indicted,” who cannot perform cognitive tasks under time constraints, is incapable of performing the functions of a practicing lawyer and therefore, perhaps, should not be a practicing lawyer. But one would be arguing those things in the teeth of the law. Thanks to the Americans With Disabilities Act, the Individuals With Disabilities in Education Act and Section 504 of the Rehabilitation Act of 1973, Bartlett and her fellows among the learning-disabled are now eligible for a lifelong buffet of perks, special breaks and procedural protections, a web of entitlement that extends from cradle to grave.

Now, consider another test and another plaintiff of more recent vintage. It is the case of Ricci v. DeStefano. What follows is Stuart Taylor’s summary of the case, published in December 2008 in National Journal Magazine.

Frank Ricci, a firefighter in New Haven, Conn., worked hard, played by the rules, and earned a promotion to fire lieutenant. But the city denied him the promotion because he is not black. Ricci sued, along with 16 other whites and one Hispanic firefighter. After a 7-6, near-party-line vote by a federal Appeals Court to dismiss the lawsuit, the plaintiffs petitioned for Supreme Court review. . . .


But Ricci and other would-be lieutenants and captains with high scores did not get the promotions they expected. The reason was that–because not enough black firefighters had done well enough to be eligible–New Haven decided to discard the test results and make no promotions at all.

In their lawsuit, Ricci and his fellow plaintiffs claimed that the city, Mayor John DeStefano, and other defendants had violated their rights under the Constitution’s equal protection clause and under federal civil-rights laws.

U.S. District Judge Janet Arterton of New Haven dismissed the case. A three-judge panel of the U.S. Court of Appeals for the 2nd Circuit affirmed the dismissal, {snip}.

Arterton was appointed by President Clinton. So were the three 2nd Circuit judges who heard the initial appeal, including Sonia Sotomayor, who is touted by liberal and Hispanic groups as a leading candidate for an Obama appointment to the Supreme Court. The three-judge panel initially deep-sixed the firefighters’ appeal in a cursory, unpublished order that disclosed virtually nothing about the nature of the ideologically explosive case.

Then the Circuit’s more conservative judges got wind of the case. They sought to have it reheard by the full Appeals Court but lost in a 7-6 vote. {snip}

Writing for the six dissenters, Cabranes [Jose Carbranes, a Clinton appointee] said that the majority “failed to grapple with the questions of exceptional importance raised in this appeal,” and he urged the Supreme Court to do so. He also raised the question of whether the case involved “an unconstitutional racial quota or set-aside.”


Cabranes stressed that despite the importance of the issues and the unusually long and detailed briefs, arguments, and factual record, the three-judge panel’s “perfunctory disposition” oddly contained “no reference whatsoever to the constitutional claims at the core of this case.”

Five of the majority judges, including Sotomayor, retorted that New Haven’s decision to discard the test results and deny what would otherwise have been virtually automatic promotions to the highest-scoring white and Hispanic firefighters was “facially race-neutral.” The reason? Because none of the low-scoring, ineligible African-American firefighters was promoted either. These five judges also endorsed Judge Arterton’s conclusion that the city’s decision was justified by fears that promoting the high-scoring whites might violate Title VII of the 1964 Civil Rights Act and bring a discrimination suit by the low-scoring blacks. . . .

Racial politics clearly did figure in the city’s denial of promotions to the white and Hispanic firefighters. Politically powerful African-American leaders made it clear that if not enough blacks were eligible for promotion, then no whites should be promoted either. {snip}

Four questions:

If you were the New Haven fire department, would you hire Ms. Bartlett to represent you in a suit filed against you by Mr. Ricci?

If you were Ms. Bartlett and lived in New Haven and you were trapped in your burning home, would you find more comfort in Mr. Ricci arriving at your home or one of the other firefighters whose performance was not as good as his?

Are these two opinions consistent with each other?

And if so, what legal theory would best account for their consistency?