I don't know if the policy was changed in reaction to this Findlaw column, but now you can bring apple juice into the New York bar exam without being categorized as a "special" test-taker. Indeed, the 1991 exam situation is probably not predictive of how any disabled test-takers are treated 15 years later. Between federal mandate from the Americans with Disabilities Act, and a general societal change in perceptions of disabled people, Sherry Colb's story is unlikely to recur. I don't entirely agree with her opposition to flagging standardized test scores; if someone took the test under relevantly different conditions -- extra time, an individual room, etc. -- noting the specific difference on the test report informs the recipient without lumping all differently-abled people together. All "normal" test-takers are alike; each disabled test-taker is disabled in his own way.
Anyway, good luck to all bar examining De Novo readers, who probably are too busy cutting up flashcards and doing a last few hundred MBE questions to be reading this or any other blog, with the possible exception of Wings & Vodka.
A Personal Story: The Disabled at the New York Bar Exam
I had a very small taste of the depth of prejudice against the disabled when I was preparing to take the Summer 1991 New York State Bar Examination. About two weeks before the test, I learned that food and drink would not be allowed into the exam room. Since childhood, I have suffered from a relatively mild form of hypoglycemia, a tendency for one's blood sugar to drop if too many hours pass without the ingestion of carbohydrates. As a result, whenever I have taken examinations that last more than an hour, I have brought with me a small bottle or two of apple juice, to avoid developing a headache and becoming very drowsy and light-headed. My need to bring juice to exams had never posed a problem for me or for anyone else prior to the bar exam.
When I called the New York Bar to explain that I needed apple juice in the exam room, I was asked why I had not petitioned for an accommodation prior to the deadline; I explained that I had not known beforehand that I would need to petition at all. I was told I would then have to petition both for a waiver of the petition deadline and for an accommodation for my hypoglycemia. Luckily, my doctor was in town and agreed to write me a note immediately, and my husband, who had himself recently graduated from law school, composed a petition for a deadline extension for me — while I focused on last minute studying for the exam.
The New York Bar granted both petitions. When I arrived to take the test, I was assigned to sit in a special room reserved for people receiving accommodations. Some had syringes because they needed to self-inject insulin during the exam; others had high-intensity lamps because they were vision-impaired. I felt somewhat ridiculous sitting there with my apple juice. At some point, the proctors asked that "the special people" be seated — a label that bothered me.
The exam was scheduled to begin at 9 AM, but the proctors in the "special" room did not hand out the test papers until closer to 10. I worried briefly that we might not get the full time allotted to complete the test, but no one seemed to be keeping an eye on the clock. The next morning, on Day Two of the exam, it appeared we would again be starting late. I asked one of the proctors whether perhaps we could begin our exam at 9 AM on that day. With a puzzled expression on her face, she asked why. I replied that everyone else was taking the exam at 9 AM, and that I did not know of any reason for us to be delayed. She smiled and responded slowly: "If you think you can take the exam with the normal people, why don't you go ahead and try?"
I began to reply to this remarkable comment, but a woman sitting near me who was legally blind interrupted and took me aside. She observed that I must be newly disabled. I was embarrassed to tell her that I had actually been drinking apple juice for most of my life. She said it was not worth getting upset about the proctor's remarks and that she, the applicant, just felt lucky to be allowed to take the exam with her special lamp, since another state bar had refused to let her do so.
In someone's mind, the ability to see without the aid of a special bulb was apparently "essential" to practicing law. This is the same mindset that deems having arms a key qualification for a business school applicant, or the ability to walk from tee to fairway to green a key qualification for a professional golfer. Only someone who is "normally" sighted — and lives in a society designed around that "normal" ability — could possibly view "normal" sight as a sine qua non for being, not a fighter pilot, but simply a practicing lawyer.
Why Flagging Should Not Occur
Though I do not pretend to understand the obstacles faced by the disabled, this experience at the bar exam gave me a window on the daily discrimination and hostility they encounter. Someone had flagged our room of "special people" in such a way that the proctors felt free to treat us with disrespect. Such flagging only makes life more difficult and painful for those who must already contend with physical or mental impairments that others are lucky enough not to face. And in many contexts, it is entirely unnecessary.