Kevin H. Smith

excerpted from: Kevin H. Smith, Disabilities, Law Schools, and Law Students: a Proactive and Holistic Approach , Akron Law Review 1-106, 5-33 (1999)(261 Footnotes)

A wide variety of physical and mental impairments may result in a disability as defined by the relevant legal framework; these disabilities occur with varying degrees of severity and frequently occur in combination. Inasmuch as different disabilities, or combinations of disabilities, affect distinct aspects of a student's physical and academic capacities, each disabled student's situation is unique. However, a general understanding of the range of physical and mental disabilities, as well as their causes and typical consequences, will permit law school administrators and legal educators to assess more accurately whether a given student's impairment constitutes a disability and what constitutes a reasonable accommodation. Further, this information will permit legal educators to assist more effectively each disabled law student in maximizing and fulfilling her potential.

Despite their diversity, physical and mental disabilities may be divided into three broad categories based on their etiologies and their resulting functional limitations: physical/medical, learning-related and emotional disabilities. Each category is discussed in turn.

A. Physical/Medical Disabilities.

Physical/Medical Disabilities (PMDs) are disabilities which result from a disease or condition which is primarily physical and medical in nature. PMDs include gross and fine motor impairments due to such factors as spinal cord injury (e.g., paraplegia and quadriplegia), cerebral palsy, and neuromuscular diseases (e.g., muscular dystrophy and Lou Gehrig's Disease); diabetes; autoimmune diseases (e.g., rheumatoid arthritis, lupus, and multiple sclerosis); chronic fatigue syndrome; general physical trauma (e.g., broken limbs and neck or back injuries); thyroid disorders; epilepsy; and HIV/AIDS.

The effects of these PMDs may include loss of fine or gross motor coordination, loss of mobility due to orthopedic problems, fatigue, loss of the ability to concentrate for extended periods, extreme pain, increased susceptibility to common illnesses such as a cold and flu, blackouts, and seizures. As a result, students afflicted with these PMDs may experience limitations in walking, opening doors, climbing or descending stairs, using lavatory facilities, using provided seating in classrooms and libraries, sitting for an entire class period, reaching for and removing books from library shelves, typing, handwriting, looking down to read or write for a long period of time, or turning pages. The fatigue, pain, and inability to concentrate which are associated with some of these PMDs also may impair a student's intellectual functioning.

PMDs also include impairments of the ability to see (e.g., total blindness, glaucoma, tunnel vision, and diabetic retinopathy ), hear, and speak (e.g., stuttering). Each of these PMDs results in rather obvious limitations of the ability to read, research, write and edit written work, and participate in class and moot court activities.

Legal administrators and legal educators must recognize that certain characteristics associated with PMDs require that they take a flexible, holistic, and continuing approach both to determine the nature and severity of a student's disability and to provide the disabled student with reasonable accommodations. First, PMDs differ in their duration, stability, and severity. Some PMDs are permanent and stable, such as paralysis due to a severed spinal cord. Some PMDs and their symptoms vary in severity, with changes being gradual or sudden, permanent or temporary. For example, the condition of a student with a degenerative muscular disease or HIV/AIDS likely will decline, while a student with a chronic illness may experience either periodic exacerbations (e.g., a flare up of lupus, a diabetic coma, or an epileptic seizure) or periods of remission (e.g., lupus or muscular sclerosis). A PMD may be "controlled" by medication for long periods (e.g., diabetes and epilepsy) or cured (e.g., cancer).

Second, even when the primary PMD is stable and permanent, the student may experience secondary problems, such as an increased risk of urinary tract infections in wheelchair-bound individuals, which may cause additional and intermittent functional impairments or disabilities. Although the secondary problems might not significantly impair a non-disabled student's ability to function, they may have a much more profound impact on an already disabled student. Therefore, law school administrators and legal educators should evaluate secondary problems from the perspective of their impact on the disabled student, not from the perspective of their impact on the average law student.

Third, treatments for many PMDs result in additional secondary functional limitations, which vary in frequency (including the frequency of treatment), duration, and severity. For example, anti-pain medication containing codeine may produce a continuous sedative effect that reduces the student's ability to concentrate while studying, in class, or taking exams. Another example is the profound, but relatively short-term impact of intermittent chemotherapy or radiation therapy on the cancer patient.

Fourth, PMDs such as lupus and migraine headaches may be exacerbated by stress. Therefore, it would not be unusual to find a student's symptoms increasing in severity immediately before or during a required moot court competition, a law review write-on competition, or exams. Legal educators and administrators should not view the timing of the student's problem as "convenient" or "opportunistic," but should investigate whether the PMD is one that is normally exacerbated by stress.

Finally, a PMD may result in psychological problems (e.g., depression or negative self-concepts), social problems (e.g., the difficulty experienced by paralyzed or hearing-impaired students in interacting with non- disabled students in the informal settings in which much discussion, learning, and networking takes place), and stigma (e.g., a student with HIV/AIDS).

In conclusion, a PMD may directly reduce a student's ability to engage in the pursuit of a law school education, and the resulting reduction in a student's ability to function will require accommodation. Further, a PMD may result in secondary effects that interfere with academic achievement, such as psychological problems, stigma, and social problems. If secondary effects constitute disabilities, the student must receive accommodations for them. Even if a secondary effect does not, by itself, constitute a "disability," the best view is that it should be addressed by law school administrators and legal educators as part of the overall assistance provided to the disabled law student.

B. Learning Disabilities, Attention Deficit Disorder, and Attention-Deficit Hyperactivity Disorder.

Learning Disabilities (LDs), Attention Deficit Disorder (ADD), and Attention-Deficit Hyperactivity Disorder (ADHD) are relatively specific neurological or biochemical conditions which impair a student's ability to take in, retain, recall, comprehend, analyze, process or manipulate, organize, and/or express (either verbally or in writing) information, concepts, and ideas. These disabilities, principally ADD and ADHD, also include neurological or biochemical conditions which undermine a student's ability to concentrate, stay "on task," avoid being distracted by noise or other stimuli, and organize his or her life and work.

A person with a specific learning disability typically does not perform at an expected level of ability for her age and possesses a large discrepancy between intellectual ability, as measured by tests, and actual performance in one or more domains: "(i) Oral expression; (ii) Listening comprehension; (iii) Written expression; (iv) Basic reading skill; (v) Reading comprehension; (vi) Mathematics calculation; or (vii) Mathematics reasoning."

Learning disabilities are the most common form of disability identified by law students. The potential impact of learning disabilities on the study and practice of law is rather obvious, but the causes of these disabilities are not as obvious.

To simplify greatly, the eyes, ears, and body parts required for speaking and writing, the related nervous system, and the brain constitute a complex meta- system. The brain itself is a complex system in which distinct brain sections are relatively specialized and have significant responsibility for performing a particular physical or mental task. Operations such as seeing, reading, hearing, listening, memorizing and recalling information, generating options, staying focused and on task, performing mathematical operations, analyzing and organizing information and concepts, and expressing (either verbally or in writing) information, concepts, and ideas require that the relevant parts of the brain properly perform their specialized functions. These operations also require that distinct and sometimes distant brain sites communicate effectively and coordinate their activity in an appropriate manner, both with each other and with the relevant sense organs, speech organs, and body parts (such as hands).

This meta-system is able to operate effectively only when the neuroanatomy and neurochemistry of each relevant section of the brain, the communication lines between each relevant brain section, the communication lines between the brain, the sense and speech organs and other relevant body parts, and the sense and speech organs and other relevant body parts themselves function properly and are in proper balance. A problem with a single part of the overall system may result in a profound cognitive and functional deficit.

As with all physiological attributes, significant differences exist between individuals in the efficiency and effectiveness with which the parts of this meta-system function. In most individuals of above-average and high intelligence, all parts of the system function particularly well. In law school students with LDs, ADD, or ADHD, one or more parts of the system do not function as efficiently or effectively as the other parts. Thus, although a student may be of "average and above average intelligence," she may suffer from a "deficit in the processing of visual and/or auditory information," resulting in a "severe discrepancy between [general] aptitude and achievement" in situations in which "sensory and/or physical impairment [is not] a causative factor."

For example, consider a law student with dyslexia. Although he may have high overall intelligence, his ability to input information visually may be significantly limited. Although he may take a long time to read, he may perform adequately in class discussions. A different, non- dyslexic law student may be a highly effective reader, but may suffer from aphasia, and thus have difficulty comprehending verbal information. Although highly prepared, this student may have great difficulty following and participating in class.

LDs, ADD, and ADHD possess several characteristics which result in suspicion or disdain by law school administrators, legal educators, and non-disabled law students. First, these disabilities usually involve one or more of the mental, communicative, expressive, or organizational skills which are related to being a competent attorney. Although a person with such a disability may be highly intelligent, the student's performance may give the appearance that she lacks the intellect, ability, drive, or discipline required to be a competent attorney. Thus, it is easy to dismiss the student simply as not being "cut out" to be an attorney. For example, a person with an LD which makes it difficult for her to express herself verbally may appear unprepared in class, even though she is quite prepared and could give good answers in writing. The student could be a quite proficient attorney in an area which does not require a significant amount of spontaneous verbal communication.

Second, LDs, ADD, and ADHD are not directly observable and are not subject to the same level of scientific verification and understanding as are PMDs. Most PMDs either are visible or are subject to verification by well- accepted imaging or laboratory tests. On the other hand, LDs, ADD, and ADHD are not externally visible and are diagnosed by methods which are, by comparison to PMDs, qualitative and subjective. Thus, diagnosis remains more of an art than for PMDs. The causes of LDs, ADD, and ADHD are less well understood than are the causes of most PMDs. This lack of understanding contributes to the suspicion and disdain surrounding these disabilities.

Third, diagnoses of these disabilities, particularly learning disabilities, may be made relatively late in an individual's academic career, such as during law school; such diagnoses also may be made at what appear to be opportunistic times, for instance immediately before final examinations. The timing of a diagnosis, combined with the academic success which permitted the student to be accepted to law school, may make the diagnosis suspect in the eyes of many individuals. However, the existence of LDs, ADD, and ADHD has been recognized only relatively recently, and many K-12 schools still do not have comprehensive and effective screening programs or remediation programs; thus, some learning disabled students are not identified until they enter college or law school. Further, many learning disabled students do not realize they possess a disability and remain undiagnosed until they enter the pedagogically different, more stressful, and more intellectually challenging law school environment, where their native abilities and prior coping mechanisms are insufficient.

Fourth, LDs, ADD, and ADHD are difficult for the layperson to distinguish from simple lack of ability, lack of discipline, or laziness. Thus, there seems to be a normative bias against these disabilities. Life is unfair. Unlike Lake Woebegone where all children are above average, not everyone in the real world is blessed with athletic, artistic, musical, literary, verbal, mathematical, or other ability. Even those who are blessed with intellectual talent or ability find they have strengths and weaknesses. For example, an otherwise highly intelligent person may find that she struggles to be even "average" in learning a foreign language. To many individuals, LDs, ADD, and ADHD simply are a manifestation of life's caprice to which they, themselves, were subject and in which they, themselves, both won and lost.

Finally, there is a tendency to view ability globally; we view people as being"athletic," "artistic," "musical," or "intellectually gifted," or not. We forget each of these seemingly global abilities involves a wide variety of aptitudes. A person may be quite gifted intellectually and still suffer from a specific learning disability which makes her appear inept, uninterested, or unintelligent.

Despite the suspicion with which they are viewed, LDs, ADD, and ADHD are real. Unfortunately, those conditions which are neurological in origin are incurable. The functional impairment caused by the condition may be lessened by training, the use of compensatory learning and other strategies, or minor adjustments in classroom procedure and presentation by the professor. Conditions which possess a biochemical component may respond to medication.

An LD or a case of ADD or ADHD is relatively stable in nature and severity, particularly when it is neurological in nature. Thus, there will usually be little need to monitor the disability's existence and severity. The impact of the disability may differ substantially, however, depending upon a particular professor's classroom style, the type (statutes or cases) and amount of reading which is required in a course, and the intellectual functions necessary to process and work with the course material.

The existence of a learning disability or a case of ADD or ADHD may also result in, or coexist with, difficulties which may further interfere with academic achievement: psychological problems, stigma, social problems, and a fear of being labeled as someone falsely seeking preferential treatment. The psychological impact of the diagnosis may be particularly severe in both a recently diagnosed student and in a student who performed extremely well as an undergraduate, but finds her disability significantly impairs her law school performance. Indeed, the depression or loss of self-esteem which accompanies the diagnosis and the realization of one's limitation may be, at least in the short-term, disabling in itself. Even if these secondary effects do not, by themselves, rise to the level of a legal "disability," a comprehensive approach to students with LDs, ADD, and/or ADHD must address these effects through counseling or other appropriate actions.

C. Emotional Disabilities.

Emotional disabilities (EDs) comprise a wide variety of neurological, biochemical, and other psychological conditions. Relatively common EDs include depression, manic-depressive disorder, obsessive-compulsive disorder, panic attacks, generalized anxiety disorder, social phobia, agoraphobia, and schizophrenia. EDs may result in a variety of symptoms which substantially limit a student's ability to perform intellectual tasks: fatigue, inability to concentrate, profound and disabling fear of speaking spontaneously before large groups of people, compulsion to perform time-consuming and disruptive rituals due to obsessive thoughts, and negative thoughts and beliefs concerning the student's ability to perform tasks within the student's ability.

At the risk of profound oversimplification, EDs arise from physical problems, problems with thought patterns and the assumptions on which they are based, or a combination of the two. Physical problems may be structural (neuroanatomical and neurophysiological) or biochemical in nature. Structural problems may inhibit or distort the thought and other processes involved in the perception, input, storage, recall, processing, and output of internal and external stimuli. In addition, structural problems may affect the ways in which emotions, moods, dispositions, feelings, thoughts, and perceptions are generated, perceived, processed, and acted upon. Biochemical problems, such as the underproduction of certain neurotransmitters, can prevent a particular part of the brain from functioning properly (causing or predisposing one to particular emotions, moods, dispositions, feelings, thoughts, and perceptions) or prevent different parts of the brain from communicating effectively.

EDs which have a physical origin are particularly chronic. EDs, especially those caused by a biochemical imbalance, may often be treated and somewhat controlled or ameliorated by medication. In addition, certain EDs, such as panic attacks, may be partially controlled or ameliorated through counseling, training in relaxation techniques, and simple understanding of the nature of the disorder.

Problems with thought patterns and the assumptions on which they are based are rooted in conscious or unconscious attitudes, values, beliefs, perspectives, opinions, and assumptions, as well as the manner in which the individual thinks through intellectual, emotional, and social situations. These problems are loosely analogous to a bug in a software program. Even though the computer's hardware functions properly, the software does not function in a manner which achieves the desired or appropriate ends. For example, a person who was continually told as a child that she was ugly and stupid may develop feelings of low self-esteem and an attitude that she is stupid and cannot do the work required in law school. Like defective computer software, EDs based on these problems may require extensive work to debug and rewrite the mental software. This may require lengthy psychotherapy or counseling, although medication may also be of assistance in the short term.

In addition to their different etiologies, EDs have several characteristics which may affect their nature and severity, as well as treatment options and appropriate accommodations. First, EDs may be primary or secondary. A primary ED results directly from a problem with the brain's physical structure and biochemistry, or from atypical thought-patterns and underlying assumptions. For example, a manic-depressive disorder caused by fluctuations in biochemical balances in the brain is primary in nature because the mental illness is the principal illness. Secondary EDs, particularly depression, may result from the occurrence of a PMD, the diagnosis of an LD, ADD, or ADHD, or the existence of another ED.

Second, stress, particularly acute stress, may trigger or exacerbate an ED. A student who coped well with the stress of undergraduate studies may find herself affected for the first time when faced with the chronic and generally greater stress of law school. A student who copes well with the general stress of law school may experience an ED during a particularly stressful situation, such as when she is called on in class, is required to participate in a moot court oral argument, is required to produce a complex written work product under a short deadline, or is required to take an exam. It cannot be emphasized too strongly that stress-induced EDs, just like stress- induced PMDs, may not be triggered until the final exam period, or until a final exam itself. The legal educator and law school administrator must understand that an ED may present itself or reach a debilitating level only in certain situations or under certain conditions.

Minor accommodations may relieve the debilitating aspects of a mental illness even though the underlying disease remains. For example, a student who suffers from a panic disorder may find it disabling in the educational context only when called on in class. Even though the illness remains and the student may suffer panic attacks in situations which are unrelated to education, she may find the disorder to be controllable (with respect to education) by being exempted from class participation.

Third, and related to the previous point, an ED may change in severity over time depending upon the combination of external stimuli, such as stress, and internal chemical balances. Even a student who takes medication which "controls" or ameliorates an ED may experience fluctuations in the ED's severity. Medication may help control or ameliorate an ED, but medication does not cure it. Seemingly opportunistic exacerbations of EDs at exam time may reflect the stress-related disruption of intricate biochemical balances. Law school administrators and legal educators must have reasonable expectations about the possibility of the student being able to control or to cure certain EDs.

Fourth, EDs usually cause a functional impairment in one or more of the mental, communicative, expressive, or organizational skills which are related to being a competent attorney. Although a person with an ED may be highly intelligent, the ED may make the student appear to lack the intellect, ability, drive, desire, or discipline required to be an attorney. For example, a person with a panic disorder may perform poorly when called on in class even though she is consistently and fully prepared; to the world she will seem to lack the discipline to prepare and the intellect to analyze, the material. Thus, it is easy to dismiss the student as simply not being "cut out" to be an attorney. Of course, not every student who performs poorly suffers from an ED (or other disability), but legal educators and law school administrators must attempt to understand fully each student's situation when evaluating poor in- class or exam performance and when assessing discipline and intellect.

Fifth, EDs often are treated with particular suspicion by law school administrators and legal educators because EDs are unseen and can persist for years despite aggressive treatment. Further, because of the profound stigma attached to EDs, most students with EDs attempt to act normally and not show any outward sign of their disability. As with LDs and other unseen disabilities, it is appropriate to require a student to provide thorough documentation of an ED by a trained professional.

Finally, many people erroneously view EDs as the result of a lack of willpower or character; they do not understand that someone who suffers from an ED cannot simply think or will it away. The neurological, biochemical, and ingrained psychological aspects of EDs must be fully appreciated.

Of all the disabilities discussed, emotional disabilities may require particular sensitivity and discretion on the part of the law school administrator and legal educators. Profound stigma is attached to EDs. The student with an ED may be particularly reluctant to self-identify, and even after self-identifying may be reluctant to discuss her condition and its impact on her educational process.

The issue of medication is also problematic for students with an ED. Unlike a person with a PMD, such as diabetes, who gladly may take medication to control the disease, a person with an ED may be reluctant to take medication, even if it "controls" the ED. This may be because the medication produces a mild to strong sedative effect which impairs the student's ability to concentrate and to think, speak, and write clearly. For example, a tranquilizer such as Xanex often is prescribed to a student with a panic disorder. The student may conclude that the tranquilizer's sedative effect so diminishes her ability to concentrate on her studies and to follow the discussion in class that it is seriously interfering with her educational experience. She may reasonably decide it is to her overall educational advantage to be exempted from being called on in class, rather than to take the tranquilizer and suffer its effects.

A student may also be reluctant to take medication which would alter her personality, even if "for the better." Further, a student may be concerned about the ED medication's side effects, which could include nausea, headaches, weight gain, and decreased sexual desire and performance. Side effects are of particular concern to the student who is pregnant or who is planning to have a child. Considering all aspects of the situation, the student may reasonably and legitimately conclude the medication's side effects outweigh any possible educational benefits. Yet, she might be criticized by law school administrators or legal educators who wonder why her condition has not improved over time and why she is not taking active steps to "cure" or "control" her illness with available medication.

On the other hand, should the student decide to take medication, the medication's side effects may impair the student's educational performance in other ways. Even if the side effect does not rise to the level of a disability, it should be treated as part of the underlying ED and the student should be granted needed accommodations, such as additional time to take examinations.