How Would Blackstone Teach Today's Law Students with Learning Disabilities?: A Proposal

Schmitz, Suzanne J., Forum on Public Policy: A Journal of the Oxford Round Table

Abstract

Although Sir William Blackstone would not have known if he had been lecturing to students with learning disabilities, today's law professors are. Law schools are legally required to accommodate students with learning disabilities unless the requested accommodation would alter the fundamental nature of the program. Courts give great deference to academic institutions in their determinations of what would alter the fundamental nature of the program; however, courts do expect law schools to deliberate and consider alternatives to the program requirements and to reach a rationally justifiable conclusion that the available alternative will either result in lower academic standards or require substantial alteration of the program.

Law faculty who clearly articulate the goals and objectives of each of their courses will be better prepared to meet this legal test. Moreover, they will be better prepared to accommodate requests of students. Those who are deliberate about their goals are able to consider alternative means of helping students learn the material and alternative means of assessing student performance. In this way, these faculty members will avoid law suits. Law schools should institute institutional incentives to encourage faculty members to do just that. Law school administrators must educate faculty members and others about the legal requirements and types of disabilities to be accommodation. Further, they might adopts such incentives as financial rewards and released time for faculty who are interested in more clearly defining their educational goals and methods.

I. Introduction

William Blackstone would not have known if he had been lecturing to students with learning disabilities, but students with learning disabilities are in today's law school classrooms. In too many cases, however, legal educators might well be in the age of Blackstone, because they are unprepared to respond to the needs of these students. While courts are willing to defer to the academic expertise of institutions such as law schools, courts do expect law schools to carefully respond to the requests of these students. (1) This paper will discuss the need for institutions and faculty to act.

Part II of this paper explores Blackstone's views on legal education and some views applicable to this issue. It also provides background concerning students with learning disabilities and their impact on law schools. Part III offers the legal background to the issue, including the deliberative process courts expect of postgraduate institutions. Part IV explores that deliberative process as applied to typical requests for law school accommodations. Part V proposes two tracks for law faculty and law schools to better prepare them for law students with disabilities.

II. Background

A. Blackstone on Legal Education

When William Blackstone was preparing to lecture at Oxford, the two major means of legal education were apprenticeships and Inns of Court. Blackstone criticized apprenticeships as emphasizing the practical at the expense of basic legal principles and criticized the Inns of Court for failing to provide sufficient supervision or guidance. (2) Blackstone proposed to place the study of law in the University. He offered a series of lectures to lay out a "general map of the law," stating the fundamental principles of law. (3) His goal was "to render the whole [of law] intelligible to the uninformed minds of beginners." (4) Blackstone's approach was "so ubiquitous and readable that he made it appear easy to learn law.... It was the very lucidity and conciseness of Blackstone that concerned advocates of more comprehensive legal education" in nineteenth century America. (5)

Blackstone argued for a fairly inclusive approach to legal education. A basic understanding of the law was necessary to those with considerable property, those who wrote their own wills, those who would serve as jurors, magistrates, judges, or legislators, those who conducted business, the nobility, clergy, physicians and those engaged in foreign commerce. (6)

Blackstone also showed some understanding of what we today would call psychology and learning theory. He understood that a novice to the study of law, overwhelmed at the beginning of his study by too much detail, would either "desert his studies or will carry [them] heavily" resulting in despondence. (7) Thus, he opted to introduce students to the study of law by presenting the "general map of the law." (8)

B. Legal education Today and Learning Disabled Students

Blackstone may have had students with learning disabilities but he would not have known the concept. Today students with learning disabilities enter law school. The Law Student Admission Council reports a 100% increase in testing accommodations requests between 1990 and 1993, with 62% of those requests based on learning disability. (9) A 1995 study indicated that law schools had received almost 600 requests for accommodations from students with learning disabilities. (10) Likewise, bar examiners regularly report receiving requests for accommodations on the bar examination based on learning disabilities. (11) If anything, because of the fear of stereotyping, the numbers of students who request accommodations is understated. (12)

C. How Learning Disabilities Impact Law Students

A person with a learning disability experiences a discrepancy between his intellectual ability and actual performance in oral expression, listening comprehension, written expression, basic reading skill, reading comprehension, mathematics comprehension, or mathematic reasoning. (13) In persons who do not have a learning disability and are of above average intelligence, all parts of the system by which parts of the brain communicate with each other and with sense and speech organs and other relevant body parts function particularly well. (14) In students with learning disabilities, one or more parts of the system do not function as efficiently or effectively as the other parts, likely due to a central nervous system dysfunction. Disorders included in the term learning disabilities include: "perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia." (15)

For example, a law student with dyslexia (16) may have high overall intelligence, but may be significantly limited in his ability to input information. He may take a long time to read but be able to perform adequately in class discussions. Conversely, a law student with aphasia (17) may have difficulty comprehending verbal information and her inability to follow and participate in class may be mistakenly viewed as unprepared, even though she is quite bright and well-prepared.

D. Can Learning Disabled Students Succeed in Law School and Law Practice? Judge Jeff Gallet has written of his struggles through law school, without being diagnosed as learning disabled. After passing the bar, he learned that he had dyslexia, dysgraphia, (18) and dyscalculia. (19) Yet he has had a successful law practice, serves as a judge, has written five books, forty articles, and 30 published opinions, lectures and teaches law. (20) As Gallet says, "[a]lthough I read differently than you, I read very efficiently." (21) Likewise, "I write very efficiently. But I am always going to be a little different from the rest of you. Not better, not worse--different." (22)

Other stories are reported in the literature including a lawyer who learned he was dyslexic after failing the bar. (23) Once diagnosed and accommodated, he passed the bar and earned a master's in law degree with a 3.9 grade point average. (24) He credits his success to working in advance of deadlines and expending more time in preparation. (25) Another law student was diagnosed and accommodated while in law school and earned a position as an associate at a prestigious law firm in Los Angeles. (26) He puts in long hours because he is a slow reader. He also stays well-organized in order to make the time he needs for reading. (27)

The literature has no longitudinal studies of the careers of law graduates with learning disabilities. Nor is there yet good data on the number of such lawyers. (28) There are sufficient lawyers with disabilities, including learning disabilities, that the American Bar Association Commission on Mental & Physical Disability Law has a Mentor Program for law students with disabilities. (29)

III. Meeting the Legal Challenge to Accommodate Students With Learning Disabilities

A. What the law requires

Law students with disabilities, including learning disabilities, are protected by either of two acts. Section 504 of the Rehabilitation Act of 1973 (30) requires institutions of higher education to admit qualified handicapped persons and permit them to participate in the educational …

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Publication information: Article title: How Would Blackstone Teach Today's Law Students with Learning Disabilities?: A Proposal. Contributors: Schmitz, Suzanne J. - Author. Journal title: Forum on Public Policy: A Journal of the Oxford Round Table. Publication date: Winter 2007. Page number: Not available. © 2008 Forum on Public Policy. COPYRIGHT 2007 Gale Group.

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