Microsoft Word - 1-Masthead - Vol. VIII.doc Elizabeth Burleson Professor Burleson has an LL.M. in International Law from the London School of Economics (LSE) and is a Fulbright Senior Specialist. She began participating in treaty negotiations at the United Nations in 1991 during proceedings for the United Nations Conference on the Environment and Development and helped draft the United Nations Framework Convention on Climate Change (UNFCCC), Agenda 21 and the Rio Declaration. She has written reports for the United Nations and delivered presentations at United Nations conferences. Focusing on emerging International Law, Pro- fessor Burleson has been an advisor to UNICEF's Senior Advisor for the Environment and the New York Director of UNEP. She has also written reports for UNESCO and UNDP. A particular focus has been placed on design, development and implementation of human rights and environmen- tal programs. She was a member of the UNICEF delegation to the Bali Climate Conference; worked with the NWF and UNEP delegations to the Copenhagen Climate Conference and with the IUCN and ASIL delegations to the Cancun Climate Conference. Professor Burleson has also conducted legal research for Amnesty International's London-based International Sec- retariat and New York-based research division. She is joining the faculty of Pace Law School. As a National University of Singapore Centre for Inter- national Law Visiting Fellow, she researched energy and water security. She teaches Public International Law, Energy Law, International Environ- mental Law, UN Law, International Law and China, Property Law, Water Law, and Environmental Law. She also teaches Energy Law at the Univer- sity of Connecticut School of Law, and International Trade and the Envi- ronment as a Fulbright Senior Specialist. Professor Burleson has been a visiting law professor at Florida State and University of Oregon. PERSPECTIVE ON ECONOMIC CRITIQUES OF DISABILITY LAW: THE MULTIFACETED FEDERAL ROLE IN BALANCING EQUITY AND EFFICIENCY Elizabeth Burleson* ABSTRACT Given the recent enactment of the ADA Amendments Act, this article analyzes a Rawlsian philosophical framework with which to view society’s treatment of people with disabilities. Allocation of resources remains a pervasive concern of economists and attorneys alike. Need, merit, and market compete as means by which to decide who should receive what ben- efits. This article concludes that while economics can play a powerful role in the initial allocation of limited resources, there remains a multifaceted federal role to confront discrimination and promote equity. I. INTRODUCTION ............................................................................... 338 II. A PHILOSOPHICAL FRAMEWORK WITH WHICH TO ASSESS DISABILITY LAW ............................................................................ 339 III. A PARADIGM SHIFT IN ATTITUDES TOWARDS DISABILITIES ......... 341 A. The Rehabilitation Act of 1973 ................................................ 342 B. Equal Access and Opportunities to Education ........................ 343 C. Individuals with Disabilities Education Act (“IDEA”) ........... 345 1. Conflict between the Traditional Educational System and IDEA ........................................................................... 345 2. Funding Special Education and the Complexity of Disability Evaluations ....................................................... 347 3. Competing Interests ........................................................... 347 4. An Economic Model for Allocating Special Education Services .............................................................................. 348 5. The Rowley Case ............................................................... 349 6. Proportional Quality ......................................................... 351 D. An “Otherwise Qualified Individual” Under Section 504 ....... 353 IV. THE AMERICANS WITH DISABILITIES ACT OF 1990 ....................... 355 A. Administrative and Judicial Enforcement .................................. 356 B. The Bartlett Case ....................................................................... 357 * Professor Elizabeth Burleson has an LL.M. from the London School of Economics and Political Science and a J.D. from the University of Connecticut School of Law. She teaches at Pace Law School (visiting professor at the Florida State University College of Law). She also writes reports as a consultant to the United Nations. 338 INDIANA HEALTH LAW REVIEW [Vol. 8:2 V. RECOMMENDATIONS ...................................................................... 360 VI. CONCLUSION .................................................................................. 362 I. INTRODUCTION The Americans with Disabilities Act (“ADA”) Amendments Act (“ADAAA”) went into effect in 2009,1 rekindling the federalism debate regarding education. As an expansion of the Americans with Disabilities Act of 1990,2 the ADAAA rejects the Sutton Trilogy3 requirement that mit- igating measures be factored into a disability analysis.4 Instead it reinstates the reasoning of the Supreme Court in School Board of Nassau County v. Arline.5 Eleven percent of students in higher education have disabilities,6 and ten percent of these students have learning disabilities.7 A significant level of awareness has been raised concerning the needs of people with disabili- ties, yet increased visibility and legal protections have been met with strong resistance. While disability advocates speak of fundamental civil rights, opponents speak of economic costs. Law and economics can provide much needed guidance based upon well-reasoned theories and have contributed 1. ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (codified as portions of 42 U.S.C. §§ 12101-12214 and 29 U.S.C. § 705 (2008)). 2. Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327 (codified as amended at 42 U.S.C. §§ 12101-12213 (2009)). 3. Sutton v. United Airlines, Inc., 527 U.S. 471 (1999); Albertson's, Inc. v. Kirkingburg, 527 U.S. 555 (1999); and Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999). 4. Congress expanded the Rules of Construction Regarding the Definition of Disability to specify in (E)(i) that “[t]he determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures.” 42 U.S.C. § 12102(4)(E)(i) (2009). 5. ADA Amendments Act of 2008, § 2(b)(2)-(3); see also School Bd. of Nassau County v. Arline, 480 U.S. 273 (1987). 6. U.S. GOV'T ACCOUNTABILITY OFFICE, GAO-10-33, HIGHER EDUCATION AND DISABILITY: EDUCATION NEEDS A COORDINATED APPROACH TO IMPROVE ITS ASSISTANCE TO SCHOOLS IN SUPPORTING STUDENTS 6 (2009); see also Laura Rothstein, Higher Education and Disability Discrimination: A Fifty Year Retrospective, 36 J.C. & U.L. 843, 871 (2010). 7. U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-10-33, supra note 6, at 11. (noting that “the return of veterans with a variety of conditions ranging from mobility impairments to post traumatic stress disorder will present new challenges for colleges and universities. The Post-9/11 Veterans Educational Assistance Act of 2008, Pub. L. No.110-252, 122 Stat. 2357 (codified at 38 U.S.C. § 3313 (2008)), provides funding for tuition and fees, housing, and other assistance for returning veterans. This is likely to increase the number of individuals on campus returning from active service. Not only might the services they request be challenging, but there may be legal issues about documentation. Individuals returning from active service may not be able to get the traditionally required documentation quickly from the military to justify an accommodation, and institutions will need to determine whether they can adapt their policies to this new population”); Rothstein, supra note 6, at 873; see also Paul D. Grossman, Foreword with a Challenge: Leading Our Campus Away from the Perfect Storm, 22 J. POSTSECONDARY ED. & DISABILITY 4 (2009). 2011] ECONOMIC CRITIQUES OF DISABILITY LAW 339 immeasurably to the sound application of laws and policies. Law and so- ciety scholars have provided countervailing analyses that remain mindful of the need for humane laws and policies. This article begins by offering a philosophical framework with which to view society’s treatment of people with disabilities. In doing so, Part II attempts to balance the predominantly economic approach by which disabil- ity issues have been assessed. Part III then directly addresses the economic way in which the Individuals with Disabilities Education Act (“IDEA”)8 has affected resource allocation to special education. Next, Part III considers what happens to individuals who fall outside of IDEA protection once they reach the age of twenty-one. Many students in this situation have turned to Section 504 of the Rehabilitation Act.9 In the post-secondary context, courts have struggled with the level of protection that the Rehabilitation Act provides. Instead of explicitly addressing economic costs of compliance, much of the analysis in this area has revolved around the clarification of who is “otherwise qualified.” Part IV addresses the intense debate over leg- islative language that has continued, despite a Congressional effort to strengthen its mandate to eliminate discrimination against disabilities by enacting the ADA.10 In the context of higher education and professional entrance examinations, there has been less mention of direct cost benefit analyses. Instead, the debate has revolved around academic standards. Be- neath this discussion, however, there is an economic productivity debate. The following analysis focuses on the economic undercurrent that has per- vaded the process of establishing and implementing civil rights for people with disabilities. This article concludes that while economics can play a powerful role in the initial allocation of limited resources there remains a multifaceted federal role to confront discrimination and promote equity. II. A PHILOSOPHICAL FRAMEWORK WITH WHICH TO ASSESS DISABILITY LAW The American legal philosopher, John Rawls, described a state of na- ture in which individuals have complete freedom within the following hy- pothetical societal framework.11 People are initially identical with regard to physical strength, financial security, religion, race, etc.12 Moreover, these 8. Individuals with Disabilities Education Act (“IDEA”), Pub. L. No. 101-476, 104 Stat. 1142 (codified at 20 U.S.C. §§1400-1482 (2006) (formerly known as the Education for All Handicapped Children Act)). 9. Rehabilitation Act of 1973, Pub. L. No. 93-112, § 504, 87 Stat. 355, 394 (codified at 29 U.S.C. § 794 (2011)). 10. Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327 (codified as amended at 42 U.S.C. §§ 12101-12213 (2009)). 11. JOHN RAWLS, A THEORY OF JUSTICE 136 (1971). 12. David J. Popiel, The Debate Over the Americans with Disabilities Act: A Question of Economics or Justice? 10 ST. JOHN’S J. LEGAL COMMENT. 527, 530 (1995). 340 INDIANA HEALTH LAW REVIEW [Vol. 8:2 fungible individuals have no idea what they will become in the future.13 Given these two basic tenets, Rawls predicted that the rules people would establish would be fair because no one would be able to skew them to bene- fit a given individual circumstance.14 In this way, we can assess our own laws by considering whether a given rule would have been agreed upon in Rawls’ state of nature. Disability legislation, such as the ADA, holds up very well if such a Rawlsian comparison is made. In fact, the disability field provides an ex- cellent real-world scenario for Rawls’ hypothetical decision-making process since no one knows whether they will have to contend with a disability in the future.15 Since our ability to determine whether or not we would indi- vidually benefit from disability legislation mirrors Rawls’ state of nature, it is not surprising that ADA provisions in many ways reflect an undifferenti- ated decision-making process. Without knowing one’s future, individuals would like to be assured that if they acquire a disability in the future, socie- ty will provide basic accommodations. Similarly, if they decide to be em- ployers in the future, these same individuals would want to be assured that accommodating disabilities would not be exceedingly expensive.16 Thus, Rawls provides a rationale for moving beyond a utilitarian discussion of whether the ADA’s financial costs outweigh its financial benefits.17 As Popiel notes, The fact based utilitarian balancing act does not de- fine fundamental fairness. If the provisions of the ADA pass Rawls’ reason based state of nature test, they are just, and there is a strong argument for retain- ing them in spite of their cost. Our society glorifies the economic marketplace; but, in thinking about the worth of laws, marketplace analysis has its limits.18 Much of the criticism of disability legislation is couched in the argu- ment that the costs outweigh the benefits. Cries that disability provisions such as the ADA are too expensive have been countered with assurances that the costs of accommodating disabilities are generally low. Economic arguments have a useful place in society, but they cannot be relied upon as the only indicator of what and how civil rights should be protected. It is important to assess measures that protect people with disabilities in ways that go beyond a narrow framework of economic efficiency. It is not suffi- 13. Id. 14. Id. 15. Id. at 531. 16. Id. 17. Id. 18. Id. at 531-32. 2011] ECONOMIC CRITIQUES OF DISABILITY LAW 341 cient to measure the quantifiable monetary successes or failures of disability legislation to the exclusion of addressing attitudes and their philosophical underpinnings. As Popiel notes, “[i]t is principles, not what you call ‘em- pirical data,’ that will tell you what is right and what is wrong . . . . It is jus- tice that we are after, and justice is not always, or even often, amenable to precise measurement, or even to measurement at all.”19 Popiel goes on to point out that there are other expenditures for which society is willing to pay that can be extremely costly. For instance, in the context of providing fair trials for criminal defendants, looking solely at financial costs rather than the central issue of fairness is likely to lead to a substantial reduction in procedural protections. The fact that we do not perform a pure dollar and cents analysis in ensuring the right to a fair trial indicates that empirical rea- soning is not the only grounds upon which we make decisions. Communi- ties allocate resources based upon a combination of need, merit, and market. In the context of recognizing reasonable accommodations for individuals with disabilities, an even playing field can be established by interpreting and implementing federal legislation in a manner that balances efficiency and equity. III. A PARADIGM SHIFT IN ATTITUDES TOWARDS DISABILITIES Societies throughout history have often excluded or ignored people with disabilities. Misconceptions of an inability for people with disabilities to contribute to society have fostered continued discrimination. The piece- meal approach in which disability legislation has been enacted provides a record with which to trace the gradual transition in perspectives. The United States has come a long way in its treatment of people with disabilities. Throughout the early 1800s states primarily institutionalized such individuals. Income maintenance programs, such as Workers Com- pensation in 1911 and Social Security Disability policy in 1935, marked the first attempts to establish a national disability policy. Benefits initially con- sisted of financial support at a subsistence level, but with little accompany- ing effort to welcome people with disabilities into mainstream society. World War I marked a turning point in the role that the federal government has played in disability issues when the enormous influx of returning veter- ans with disabilities prompted the government to establish vocational reha- bilitation services.20 The 1920s ushered in an era of vocational rehabilitation with a “corrective” rational that would return people to the workplace. This economic, marketplace approach sought to mold the indi- vidual with a disability into his or her existing surroundings, rather than 19. Id. at 529. 20. Judith Welch Wegner, The Antidiscrimination Model Reconsidered: Ensuring Equal Opportunity Without Respect to Handicap Under Section 504 of the Rehabilitation Act of 1973, 69 CORNELL L. REV. 401, 403 (1984). 342 INDIANA HEALTH LAW REVIEW [Vol. 8:2 make an effort to alter the individual’s physical surroundings to accommo- date his or her needs, or confront the prejudice and ignorance that contrib- uted to his or her exclusion. As a result, individuals with disabilities remained isolated. A philosophical paradigm shift began in the 1960s as people started to recognize that all individuals have a fundamental worth and potential. A. The Rehabilitation Act of 1973 Prior to 1973, any special education provisions that existed were based upon disability legislation at the state level. Congress took steps to combat disability discrimination on a national level by passing the Rehabilitation Act of 1973.21 While the Civil Rights Act of 1964 did not provide protec- tion from discrimination on the basis of disability, it did serve as a founda- tion for the Rehabilitation Act.22 The Rehabilitation Act had the goal of “providing equal rights for the nation’s twenty-eight to fifty million physically and mentally handi- capped.”23 The Act implemented a program to integrate people with disa- bilities into all areas of society. Section 504 of the Act states that, “No otherwise qualified [handicapped individual] in the United States . . . . shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”24 While in the original Rehabilitation Act of 1973, the phrase “qualified handicapped individual” only encompassed individuals who could benefit from employment, a 1974 amendment incorporated a broader definition containing the following three components: “(A) a physical or emotional impairment that substantially limits one or more of the major life activities of such an individual; (B) a record of such an impairment; or (C) being re- garded as having such an impairment.”25 Under this definition, learning is considered a “major life activity.” Therefore, people with learning disabili- ties are protected in their educational pursuits. The Rehabilitation Act, and Section 504 in particular, has served as the foundation for broad policies prohibiting discrimination against people with disabilities. The Act contains several serious weaknesses, however. Among the most important criticisms of the Rehabilitation Act are that it is 21. Rehabilitation Act of 1973, Pub. L. No. 93-112, § 504, 87 Stat. 355, 394 (codified at 29 U.S.C. § 794 (West 2011)). 22. See Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (codified as amended in scattered sections of 2 U.S.C., 28 U.S.C., and 42 U.S.C. (2010)). 23. Steven W. Gerse, Mending the Rehabilitation Act of 1973, 1982 U. ILL. L. REV. 701, 701 (1982). 24. Rehabilitation Act of 1973, § 794(a). 25. Rehabilitation Act Amendments of 1974, Pub. L. No. 93-651, §111(a), 89 Stat. 2, 2-3 (1974). 2011] ECONOMIC CRITIQUES OF DISABILITY LAW 343 ambiguous in its language and is limited in its scope. Since only recipients of federal financial assistance fell within the Act, much of the private sector could continue to discriminate against people with disabilities. To remedy this flaw, Congress introduced new legislation to strengthen the Rehabilita- tion Act’s protection.26 This process culminated in the passage of the ADA, which is discussed further in Section IV. B. Equal Access and Opportunities to Education The doctrine of “separate but equal” did not reach the Supreme Court until1896 and was not originally established in relation to disability, or to education. Instead, Plessy v. Ferguson27 involved transportation. The case most people associate with the doctrine, however, is Brown v. Board of Ed- ucation,28 in which African-American elementary school children in Tope- ka, Kansas were given the right to go to an integrated school. Initially, the three-judge district court, found that segregation in public education had negative effects on African-American children, but denied relief on the ground that the segregated schools had roughly similar buildings, transpor- tation, curricula, and educational qualifications of teachers.29 Such a find- ing disregarded the argument that segregation itself inflicted a sense of inferiority, which affected the motivation of a child to learn. The Supreme Court concluded that “separate educational facilities are inherently une- qual.”30 This raises the question of how the “separate is unequal” conclu- sion relates to individuals with disabilities. Segregation of special needs students dates back at least as far as the 1800s when states began organizing separate schools for the deaf and blind. Kentucky opened the first state school for the deaf in 1823. Similar schools in Ohio, Massachusetts, and New York soon followed. Special Education programs were not integrated into public schools, however, until the 1960s. Even when physical integration did begin to take place, this development did not have a significant effect on the teaching approach taken with special needs students or on their exposure to peers who did not have disabilities. The contemporary concept of mainstreaming only began in the 1970s in the wake of the following court cases and federal statutes. In 1971, Pennsylvania Association for Retarded Children (“PARC”) v. Commonwealth of Pennsylvania challenged a state law that discriminated against children with disabilities based on the assumption that they would 26. President Reagan created the National Council on Disabilities, which ultimately authored Public Law 101-336, otherwise known as the Americans with Disabilities Act (“ADA”). 27. Plessy v. Ferguson, 163 U.S. 537 (1896). 28. Brown v. Bd. of Educ., 347 U. S. 483 (1954). 29. Id. at 486. 30. Id. at 495. 344 INDIANA HEALTH LAW REVIEW [Vol. 8:2 be unable to profit from public school.31 Specifically, PARC challenged the constitutionality of a Pennsylvania statute that excluded retarded children from public schools.32 The Supreme Court struck down the statute and re- quired Pennsylvania to stop “deny[ing] to any mentally retarded child ac- cess to a free public program of education and training.”33 This case was followed by Mills v. Board of Education of the District of Columbia, in which the court found that schools could not deny services on the basis of cost, but instead had to extend the right to free and appropriate education to special needs children.34 The court held that a school cannot exclude a child unless it provides, “adequate alternative educational services suited to the child’s needs which may include special education or tuition grants . . . . [and] a constitutionally adequate prior hearing and periodic review of the child’s status, progress, and the adequacy of any educational alternative.”35 Mills is most often quoted for its requirement that districts must not exclude special needs students on the basis of a school’s lack of resources. The court established this with the strong statement that, If sufficient funds are not available to finance all of the services and programs that are needed and desira- ble in the system then the available funds must be ex- pended equitably in such a manner that no child is entirely excluded from a publicly supported education consistent with his needs and ability to benefit there from. The inadequacies of the District of Columbia Public School System whether occasioned by insuffi- cient funding or administrative inefficiency, certainly cannot be permitted to bear more heavily on the ‘ex- ceptional’ or handicapped child than on the normal child.36 This language in Mills and the protection outlined in PARC became instru- mental in the creation of subsequent federal legislation. In 1975, Congress passed the Education For All Handicapped Chil- dren Act (“EAHCA”).37 Both the House and the Senate reports attribute the impetus for this act to the two federal court judgments previously discussed, PARC and Mills.38 Most importantly, the term “appropriate” apparently 31. PARC v. Pennsylvania, 334 F. Supp. 1257, 1258 (E.D. Pa. 1971). 32. Id. 33. Id. at 1258. 34. Mills v. Bd. of Educ., 348 F. Supp. 866 (D.C. Cir. 1972). 35. Id. at 878. 36. Id. at 876. 37. Education for All Handicapped Children Act of 1975, Pub. L. No. 94-142, 89 Stat. 773 (1975). 38. Hendrick Hudson Bd. of Educ. v. Rowley, 458 U.S. 176, 180 (1982). 2011] ECONOMIC CRITIQUES OF DISABILITY LAW 345 came from these cases. In the PARC case, the district court required that handicapped children be provided with “education and training appropriate to [their] learning capacities”39 and in Mills, the district court referred to the need for “an appropriate educational program.”40 The EAHCA was amend- ed in 1990 and renamed the Individuals with Disabilities Education Act (“IDEA”).41 C. Individuals with Disabilities Education Act (“IDEA”) Despite the growing realization that children with disabilities could benefit educationally from being in the regular classroom, many states con- tinued to deny educational services on the basis of cost and institutional difficulty. In the early 1970s, it was estimated that one to two million chil- dren were excluded from public school services.42 Congress used the con- servative one million figure to argue for the passage of IDEA and incorporated the “Child Find” program into the legislation.43 This initiative succeeded in locating many previously-excluded children with disabilities. While the Department of Health, Education, and Welfare (“HEW”) estimat- ed that 463,000 children remained excluded from school in 1976, by 1980 the figure had dropped to 22,600.44 Just as excluded students were entering the public school system, the number of newly identified special needs stu- dents increased dramatically rising from 2.1 million children in 1966, to 4.2 million in 1982.45 1. Conflict between the Traditional Educational System and IDEA Beyond the misconceptions people have about disabilities, acceptance of IDEA is further hindered by the fact that the legislation is contradictory to the system in which it has been implemented. IDEA introduces a needs- based approach into a merit-based educational system.46 Under the statute, the role of educational merit and needs are reversed. That is to say, the spe- cial needs students who have the lowest performance often receive the most resources.47 39. PARC v. Pennsylvania, 334 F. Supp. 1257, 1258 (E.D. Pa. 1971). 40. Mills, 348 F. Supp. at 879. 41. 20 U.S.C. § 1400 (2006) (describing the reasons for amending the EAHCA). 42. William H. Clune & Mark H. Van Pelt, A Political Method of Evaluating the Education for All Handicapped Children Act of 1975 and the Several Gaps of Gap Analysis, 48 L. & CONTEMP. PROBS. 7, 15 (1985). 43. Id. For information on “Child Find” see US Office for Special Education at http://www.childfindidea.org/overview.htm. 44. Clune & Van Pelt, supra note 42, at 15. 45. Id. 46. 20 U.S.C. § 1412 (a)(3) (2006). 47. Katherine T. Bartlett, The Role of Cost in Educational Decisionmaking for the Handicapped Child, 48 L. & CONTEMP. PROBS. 7, 24-26 (1985). 346 INDIANA HEALTH LAW REVIEW [Vol. 8:2 While IDEA calls for an individualized educational program for a special needs student, school systems are based on a system of standardiza- tion in which a set of uniform educational opportunities is provided.48 In such a system, the ideal goal is to become blind to individual backgrounds. In this respect, educators may see the inclusion movement as a way to bridge this discrepancy between individual and collective approaches. Yet, inclusion sometimes becomes an economic catchall approach for denying services. The placement of all children with disabilities in the regular class- room is as great a violation of IDEA as is the placement of all children in separate classrooms on the basis of their type of disability. Inclusion is not universally good or evil. Different children require different services. For instance, a Down Syndrome child benefits from socialization opportunities in the regular classroom, while a child with a mild learning disability bene- fits from separate, remedial academic skill-building. Those seeking sociali- zation can benefit from inclusion but this should not be grounds for insisting that children who are seeking the same educational goals as their non-disabled peers can equally benefit from inclusion. Watering down a concept so that it can be learned within the constraints of the traditional classroom does not help the latter. The basis of inclusion is a modified cur- riculum, essential for some children with disabilities and inadequate for others. IDEA brought a compulsory funding requirement into a political sys- tem of resource allocation―a system in which negotiations determine how much money goes where.49 The following political disadvantages facing special needs students at the local level indicate why Congress deemed it necessary to ensure their individual rights. Discomfort and prejudice to- ward people with disabilities remains widespread. Greater understanding is hindered by the reality that teachers and administrators are overburdened and are already struggling to adjust to funding shortages, while juggling increasingly overcrowded classrooms, high student-teacher ratios, and out- dated facilities.50 Despite the need to protect children with disabilities from systematic discrimination, introducing federal control into a system histori- cally run by state and local decision-makers increased the animosity of schools toward special education.51 When public education was first creat- ed in the United States, decisions were made on a local level by parents and the local government.52 During the nineteenth century, schools were con- solidated and increasingly made accountable to states.53 In contrast, the uniform federal procedures established under IDEA limit local autonomy. 48. Id. at 20. 49. Id. at 21. 50. Id. at 23. 51. Id. at 26. 52. Id. at 27. 53. Id. 2011] ECONOMIC CRITIQUES OF DISABILITY LAW 347 This was a change in the role of the federal government, which had tradi- tionally been concerned with increasing access to education rather than set- ting standards for the content of educational programming.54 2. Funding Special Education and the Complexity of Disability Evaluations Realizing that IDEA created an expensive compliance burden for states, Congress incorporated a partial funding mechanism into the legisla- tion.55 This federal aid would not compensate for all the costs of compli- ance but it was hoped that the money would ease the burden of providing evaluations and new programs and make districts more willing to change organizational routines and attitudes. As a result, schools receive special education funding in proportion to the number of children identified with disabilities.56 Linking funding to the labeling process, however, does not give schools the additional incentive to make sure services are appropriate. A common criticism of special education is that labeling drives the services. That is to say, a school’s access to funding affects a child’s eligi- bility and placement recommendations. There is a disincentive to provide for new disabilities because each new category dilutes the funding available to existing programs. These circumstances have led many advocates to ar- gue for the separation of funding from the evaluation process. Even if this were to occur, however, other issues remain problematic. For instance, states have had widely divergent standards of whom and what defines a given disability. In 1977, “thirty states had definitions of mental retardation inconsistent with the [IDEA] definition.”57 Even if a district has a broad definition of eligibility, under-referrals may result from a backup in the as- sessment process, overcrowding of programs, or personality traits.58 To clarify the latter, if a child is not disrupting the class, a teacher may not real- ize he or she is having difficulty. One way to mitigate under-referrals is to increase special education training among regular classroom teachers. This may or may not lead to the opposite problem of over-referrals. Referring children too often results when teachers are at their wits’ end with disrup- tive students. 3. Competing Interests Despite valid criticisms, IDEA did provide funding, moral authority, a standard of free and appropriate education, and the leverage to ask for new 54. Id. 55. See generally 20 U.S.C. § 1411 (2005). 56. 20 U.S.C. § 1411(a)(2)(B)(i) (2005). 57. Clune & Van Pelt, supra note 42, at 18. 58. Id. at 22-23. 348 INDIANA HEALTH LAW REVIEW [Vol. 8:2 organizational procedures.59 IDEA offers a “demand entitlement” which can be used by those willing to request change.60 This change, however, depends on the given party’s resources to demand it. IDEA gives parents a litigation entitlement, as opposed to a clear entitlement of say $1,000 for a given disability. As a result, parents are limited by the cost of litigation yet not confined by a fixed voucher or categorical grant in a fluctuating econo- my. This pragmatic approach limits social change to balancing the compet- ing economic and ethical interests of parents and schools. Unfortunately, litigation entitlements have a number of disadvantages. First, legal goals do not consider the existing competition between priori- ties. Second, legal remedies do little to address bureaucratic red tape or genuine technical ignorance. Special education cannot have an unlimited budget, despite the current views of parents seeking to recover very large sums of money for private placements. Schools will either attempt to bal- ance special education provisions with those allocated to non-disabled chil- dren or they will resist accommodating special needs students because there is no pressure to do so or because the legal provisions are impossible to comply with, given budgetary constraints. Third, legal objectives generally do not address the expense of compliance. As a result, districts opt for sur- face compliance. In assessing the merits of such compliance, however, it is important to realize the validity of the competing interests. The educational rights of non-disabled students, normal working hours, a teacher’s ability to teach effectively, and efficient use of taxpayers’ money are not discrimina- tory objectives. Assessing them, however, does not necessarily mean giv- ing them a higher priority than the needs of children with disabilities.61 4. An Economic Model for Allocating Special Education Services Maximizing efficiency between two populations of children, those with disabilities and those without disabilities, is a function of schools and parents. In identifying a source of market failure in this context, this Article focuses on maximizing the efficiency of education for all children. Schools and parents become primary decision-makers, each of whom must maxim- ize their objectives subject to their respective budgets. As rational decision- makers, parents seek to maximize their utility. They do this by maximizing educational opportunity for their child(ren) given their budget constraints. Similarly, as rational decision-makers, schools seek to maximize education- al benefit across the two populations of children: those with regular educa- tional needs and those with special needs. 59. See generally 20 U.S.C. § 1411 (2005). 60. Clune & Van Pelt, supra note 42, at 39. 61. Id. at 41. 2011] ECONOMIC CRITIQUES OF DISABILITY LAW 349 To what extent do parents have the right to shift their budget lines outward by requiring schools to finance services for their special needs child(ren)? IDEA mandates a free and appropriate education for all handi- capped children, but what is appropriate? The analysis is complicated by the fact that some parties are seeking greater access for special needs stu- dents in regular classrooms while others are seeking a greater number of out-of-class services. In conducting a cost-benefit analysis for special edu- cation, parents must weigh the needs of their child(ren) against personal budget constraints and the opportunity cost of other personal needs. Con- versely, schools must analyze their opportunity cost of providing educa- tional services to non-disabled children, given the externality of future cost to society of individuals with disabilities. What incentives do schools have to spend more money on special ed- ucation now to save costs for other sectors of the society later? Are funding patterns toward education efficient, given the crucial role human capital plays in our economy? Should each student be competitive in getting a good job or simply able to obtain economic survival? Is it the school’s re- sponsibility to prepare all its students for higher education or should voca- tional training be the objective? Must reading and spelling be mastered perfectly before pursuing abstract ideas? The answers to these kinds of questions greatly effect what are the perceived needs of a child. Further- more, perspectives on a child’s needs will vary depending on whether the school takes a short-term perspective of a school year or a long-term per- spective of the life span of the special needs person. Do the opposing goals of schools and parents create a paradox of compensation or can special edu- cation law create efficient incentives for both schools and parents? Invest- ing in education can reduce support cost later on. A given school, however, does not directly benefit from the costs that are saved in the individual’s adult years. Therefore, there is a lack of local incentive to pay the price of benefits to other sectors of society in the future. As funding for education continues to decrease in relation to the demand for services, the controversy over resource allocation mounts.62 5. The Rowley Case Hendrick Hudson District Board of Education v. Rowley63 provides a landmark judicial interpretation of the level of services that IDEA requires. The Supreme Court restrictively interpreted IDEA to require schools to provide merely “adequate” educational benefit.64 Mr. and Mrs. Rowley 62. Charles McCormick & Patricia F. First, The Cost of Inclusion: Educating Students with Special Needs, 60 SCH. BUS. AFF. 30, 30 (1994). 63. Hendrick Hudson District Bd. of Educ. v. Rowley, 458 U.S. 176 (1982). 64. Id. at 210. 350 INDIANA HEALTH LAW REVIEW [Vol. 8:2 sought a sign-language aide for their daughter, Amy.65 She had minimal residual hearing but was an excellent lipreader.66 As plaintiffs on Amy’s behalf, her parents argued that refusing to provide Amy with a sign lan- guage interpreter when she entered first grade was a denial of a “free ap- propriate public education” under IDEA.67 The court found that Amy performed better than average in the class and was advancing easily from grade to grade, despite understanding less than half of what went on in the classroom.68 There was a clear disparity between Amy’s actual achieve- ment and potential. On these grounds, the district court decided that Amy was not being provided a “free appropriate public education.”69 The court defined the latter as “an opportunity to achieve [her] full potential commen- surate with the opportunity provided to other children.”70 The Supreme Court, however, disagreed with the lower court’s ruling that Amy should be provided with a sign language interpreter.71 Instead the Court found that since she was receiving an “adequate” education, was performing above average work, and was receiving some personalized instruction and services the lower court should not have found that IDEA required anything fur- ther.72 In his dissent, Justice White disagreed with the Court’s conclusion that IDEA only mandated “adequate” educational benefit.73 He pointed out that Congress did not intend courts to end all inquiry if a child is performing on grade level. In fact, Congress repeatedly used the term “full” rather than anything that could be interpreted to mean “adequate.” As Justice White explains, [t]he Act itself announces it will provide a “full edu- cational opportunity to all handicapped children” 20 U.S.C. § 1412(2)(A) (emphasis added). This goal is repeated throughout the legislative history, in state- ments too frequent to be “passing references and iso- lated phrases” . . . . Congress wanted not only to bring handicapped children into the schoolhouse, but also to benefit them once they had entered.74 65. Id. at 184. 66. Id. at 184. 67. Id. at 185. 68. Id. 69. Id. at 185-86. 70. Id. at 186 (quoting Rowley v. Bd. of Educ., 483 F. Supp. 528, 534 (1980)). 71. Id. at 210. 72. Id. 73. Id. at 215-20. 74. Id. at 213. 2011] ECONOMIC CRITIQUES OF DISABILITY LAW 351 Justice White goes on to criticize the majority opinion’s use of the PARC and Mills cases.75 He contends that, the fact that “these decisions served as an impetus for the Act does not, however, establish them as the limits of the Act.”76 Allocating resources for special education appears to create a paradox of compensation. If the law requires that a child be afforded the maximum development possible then schools have an efficient incentive to identify and serve children with disabilities. Parents, on the other hand, do not have efficient incentives. They do not have anything obligating them to make sure the cost of a service is offset by the benefit to their child. On the other hand, if the law only requires that “adequate” educational services which offer merely “some” educational benefit be afforded to a special needs child, then parents are the ones who have efficient incentives to find out what services are essential. Schools, on the other hand, do not have effi- cient incentives to provide services beyond the first increment of education- al benefit. The incentive on the part of schools to provide as little as possible, is what concerned Justice White in the Rowley case and has led several states to establish standards above the Rowley precedent of “ade- quate” educational benefit.77 The following section seeks to strike a bal- ance between educationally beneficial services and those ensuring maximum possible development. 6. Proportional Quality IDEA requires that every child has a right to a free and appropriate education in the least restrictive setting possible.78 Yet, interpreting these provisions can be confusing. For example, does a child have access to spe- cial education if there is a testable disparity between achievement and po- tential, or merely if that disparity is below grade level (i.e., the underlying issue in the Rowley case)? A general misunderstanding of disabilities ag- gravates such complexities. Disabling conditions do not preclude students from performing above grade level. In fact, it has been estimated that one sixth of the population of gifted children have disabilities.79 75. Id. at 215-20. 76. Id. at 214. 77. See id. 78. “Each public agency must ensure that—(i) to the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are nondisabled; and (ii) special classes, separate schooling or other removal of children with disabilities from the regular educational envi- ronment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” 20 U.S.C. §300.114(a)(2). 79. LINDA KREGER SILVERMAN, Gifted and Talented Students, in SPECIAL EDUCATION & STUDENT DISABILITY, AN INTRODUCTION: TRADITIONAL, EMERGING, AND ALTERNATIVE PERSPECTIVES 377, 408 (Edward L. Meyen & Thomas M. Skrtic eds., 1995). 352 INDIANA HEALTH LAW REVIEW [Vol. 8:2 Currently, enormous but inadequate amounts of money are being in- vested in special education. These funds undoubtedly help a large number of children. It is important, however, to make sure the value of a service to a given child is greater than the cost of the service. This is not synonymous with determining that the value to the child is greater than the value of an alternative resource to non-disabled children. For example, if an aide for a special needs child can only be afforded at the expense of a classroom chalkboard, it makes sense to ensure that the benefit of an aide to the child with a disability justifies the cost of the aid. While administrative biases and discrepancies in defining value (i.e., economic productivity verses indi- vidual dignity) can make the benefit hard to calculate, it is clear that the service should be worthwhile to its recipient. In contrast, determining whether the special needs child can use the aide more productively than the other students can use the chalkboard legitimizes replacing the rights of less highly valued individuals with the rights of more highly valued individuals. To give up something in the present in order to receive something greater in the future may be efficient. To require one group of children to sacrifice something so that another group can have something, even if the gain is greater than the loss, is not efficient. Pareto Efficiency requires that the party not being made better off is at least not made worse off.80 Unlike a strict cost-benefit analysis, proportional quality programming does not compare services on the basis of goals but rather sees each group of chil- dren as having entitlements to the same degree of respect and a right to learn. While it is unrealistic not to consider costs in determining special edu- cation services within a system that is forced to weigh the costs and benefits of every other aspect of its program, the issue of cost should be confronted directly, not disguised under the educational term “least restrictive envi- ronment.” Cost considerations must be made on a quality basis. If schools only compare costs, they will continue to systematically deny special edu- cation programs on the basis of higher cost. If sacrifices must be made, they should be made across the board instead of always being made by a single group of students. Therefore, before costs are used to legitimize not providing an educationally beneficial special service, schools have to offer special needs students a program that is comparable in quality to the pro- gram available to non-disabled students.81 A proportional quality approach can narrow the discrepancy between the nondiscriminatory mandate of Section 504 and the affirmative require- ments imposed by IDEA. A child with a disability must be able to benefit 80. Pareto Efficiency or Pareto Optimality “occurs when resources are so allocated that it is not possible to make anyone better off without making someone else worse off.” See OECD, Glossary of Statistical Terms, http://stats.oecd.org/glossary/detail.asp?ID=3275 (last visited 05/31/11). 81. Bartlett, supra note 47, at 9. 2011] ECONOMIC CRITIQUES OF DISABILITY LAW 353 from the instruction under IDEA. Section 504, on the other hand, merely requires that a handicapped child be offered the same educational access as a non-disabled child. Additionally, Section 504’s protection does not bring money with it. Federal funding determines whether Section 504 is applica- ble but the money does not have to be disability funding. Section 504 is a civil rights law rather than a funding law. While IDEA provides more de- tailed provisions for those who qualify, Section 504 extends to a range of individuals with disabilities who are not protected under IDEA. Many col- lege students, for example, find that the accommodations that they received throughout elementary and secondary school are no longer protected in post-secondary pursuits since IDEA only covers individuals with disabili- ties up to the age of twenty-one. 82 The following discussion focuses on the struggle that post-secondary students have experienced. D. An “Otherwise Qualified Individual” Under Section 504 One of the greatest obstacles that post-secondary students have faced pursuant to Section 504 of the Rehabilitation Act, has been to successfully argue that they are an “otherwise qualified individual with a disability.” Southeastern Community College v. Davis83 was the first case to interpret the meaning of this phrase under the Rehabilitation Act. In Davis, a woman with a hearing impairment brought suit under Section 504 after being de- nied admission to a clinical nurse-training program.84 The district court entered a judgment for the university, concluding that Davis’s handicap would prevent her from safely participating in the training program.85 The Court of Appeals for the Fourth Circuit reversed, based on the finding that Southeastern had to evaluate the plaintiff’s credentials without considering any limitation that would result from her handicap.86 The Supreme Court rejected the Court of Appeal’s reasoning and held that “[a]n otherwise qual- ified person is one who is able to meet all of a program’s requirements in spite of his handicap.”87 Furthermore the Court concluded that, [the] respondent could not participate in Southeast- ern’s nursing program unless the standards were sub- stantially lowered. Section 504 imposes no requirement upon an educational institution to lower 82. IDEA, Pub. L. No. 101-476, 104 Stat. 1142 (codified at 20 U.S.C. §§1400-1482 (2006)). 83. Southeastern Cmty. College v. Davis, 442 U.S. 397 (1979). 84. Id. at 400. 85. Id. at 402-03. 86. Id. at 404. 87. Id. at 406 (emphasis added). 354 INDIANA HEALTH LAW REVIEW [Vol. 8:2 or effect substantial modifications of standards to ac- commodate a handicapped person.88 Davis allowed educational institutions to merely demonstrate a rational ba- sis for denying admission on the basis of disability. A university was not required to make any “reasonable accommodations” to permit a student with a disability to participate. The Supreme Court did not establish the “reasonable accommoda- tions” standard until 1985. Alexander v. Choate89 called for the Supreme Court to review its earlier holding in Davis. In Alexander v. Choate, the Court concluded that, “while a grantee need not be required to make ‘fun- damental’ or ‘substantial’ modifications to accommodate the handicapped, it may be required to make ‘reasonable’ ones”90 The Court also altered its previous holding in Davis with regard to the term “otherwise qualified.”91 In Davis, an individual was not “otherwise qualified” unless he or she was able to meet all of a program’s requirements in spite of a disability.92 In Alexander v. Choate, on the other hand, an individual could still be “other- wise qualified” even if he or she required “reasonable accommodations” to meet all of a program’s requirements.93 While Alexander v. Choate con- cerned a medical policy rather than a post-secondary context, it did substan- tially affect the analysis regarding students seeking accommodations for disabilities.94 Reasonable accommodations can be difficult to determine. Hidden disabilities, such as dyslexia, have proven to be particularly controversial. The Court of Appeals for the First Circuit sought to provide a clearer inter- pretation of the Alexander v. Choate reasonable accommodation require- ment in Wynne v. Tufts University School of Medicine95 by establishing the following standard: If the institution submits undisputed facts demonstrat- ing that the relevant officials within the institution considered alternative means, their feasibility, cost and effect on the academic program, and came to a ra- 88. Id. at 413. 89. Alexander v. Choate, 469 U.S. 287 (1985). 90. Id. at 300 (finding Tennessee’s medical policy, which limited the number of covered hospital days, did not violate Section 504 since a policy that has a disparate impact on individuals with disabilities does not necessarily create a prima facie case of discrimination under the Rehabilitation Act). 91. Id. at 301. 92. Davis, 442 U.S. at 406 (emphasis added). 93. Alexander, 469 U.S. at 301. 94. Robert W. Edwards, The Rights of Students with Learning Disabilities and the Responsibilities of Institutions of Higher Education Under the Americans With Disabilities Act, 2 J.L. & POL’Y 213, 227 (1994). 95. Wynne v. Tufts Unv. Sch. of Med., 976 F.2d 791 (1st Cir. 1992). 2011] ECONOMIC CRITIQUES OF DISABILITY LAW 355 tionally justifiable conclusion that the available alter- natives would result either in lowering academic standards or requiring substantial program alteration, the court could rule as a matter of law that the institu- tion had met its duty of seeking reasonable accommo- dation.96 Wynne argued that he failed several first year medical classes as a result of having dyslexia and that, therefore, the university discriminated against him in not modifying the standard multiple-choice exams to accommodate his learning disability.97 The court deferred to the University’s academic judgment that modifying multiple-choice examinations did not constitute a reasonable accommodation.98 While the court ultimately decided in favor of the University, the case did clarify the notion that a university must fully defend its grounds for revoking admission of a student with a disability. The Interpretive Guidelines for the ADA, drafted by the Department of Jus- tice (“DOJ”) and Equal Employment Opportunity Commission (“EEOC”) point out that, given the similarities between Section 504 and the ADA, many of the statutory interpretations of Section 504 can be used in evaluat- ing the ADA.99 Therefore, the decisions made in Davis, Alexander, and Wynne may apply to the ADA as well. IV. THE AMERICANS WITH DISABILITIES ACT OF 1990 The purpose of the ADA is “to provide a clear and comprehensive na- tional mandate for the elimination of discrimination against individuals with disabilities.”100 Perhaps the greatest achievement of the ADA is its exten- sion of disability rights to the private sector. This corrected a fundamental flaw in the government’s efforts to bring people with disabilities into main- stream society—a goal that Section 504’s limited scope was inherently un- able to achieve. As John J. Sarno points out, The primary intent of the ADA is to eradicate day-to- day discrimination against persons with disabilities. The ADA represents an attempt to legislate compre- hensive social policy by barring attitudinal as well as environmental barriers. Such an effort demonstrates a society working to transform itself by striking a bal- 96. Id. at 793 (quoting Wynne v. Tufts Unv. Sch. of Med., 932 F.2d 19 (1st Cir. 1991)). 97. Id. at 792. 98. Id. at 795. 99. H.R. Rep. No. 101-485, pt. 2, at 53-55 (1990). 100. 42 U.S.C. § 12101(b)(1) (2010). 356 INDIANA HEALTH LAW REVIEW [Vol. 8:2 ance between the morality of the marketplace and the imperative of equal opportunity.101 In contrast, critics of the ADA see it as an effort on the part of Congress simply to privatize the expense of accommodating people with disabili- ties.102 A. Administrative and Judicial Enforcement It is important to ensure not only a strong, well-funded, and capable infrastructure to enforce the ADA, but also a staff knowledgeable and sup- portive of its statutory goal of eliminating discrimination against individuals with disabilities. Ultimately, neither Congress nor the judiciary is capable of legislating a change in attitudes towards people with disabilities. Laura Rothstein notes that institutions of “[h]igher education had evolved practic- es, policies, and procedures before other sectors affected by the ADA (with the exception of K-12 education).”103 Society-wide, integration is at best a precursor to acceptance. It is not acceptance itself. Carrie Basas notes that, “the daily struggle of managing other people’s reactions to and stereotypes about disability can become a job in itself.”104 She goes on to point out that, When “reasonable accommodation” is bandied about, minds ultimately turn to a list of tangible tools, equipment, and changes in the physical environment such as large-screen monitors, curb cuts, automatic doors . . . . without considering the combined effects of impairments, the cultural weight of disability, and the long-term impact of societal inaccessibility.105 Enforcement of established civil rights and clear guidelines as to what those rights entail are essential to eliminate discrimination. The legislature must adequately fund and staff enforcement entities. This legislative approach, however, is not always sufficient in confronting the problem of clarifying 101. John J. Sarno, The Americans with Disabilities Act: Federal Mandate to Create an Integrated Society, 17 SETON HALL LEGIS. J. 401, 405 (1993). 102. Id. at 412. 103. Rothstein, supra note 6, at 863 (noting that, “Colleges and universities also followed the admonition in Southeastern Community College v. Davis that: ‘Technological advances can be expected to enhance opportunities to rehabilitate the handicapped or otherwise to qualify them for some useful employment. Such advances also may enable attainment of these goals without imposing undue financial and administrative burdens upon a State.’”). 104. Carrie Griffin Basas, The New Boys: Women with Disabilities and the Legal Profession, 25 BERKELEY J. GENDER L. & JUST. 32, 57 (2010). 105. Id. at 60-61. 2011] ECONOMIC CRITIQUES OF DISABILITY LAW 357 the language of the ADA. Courts must play the important role of making statutory interpretations that are consistent with the legislative intent of eradicating discrimination. Assessing the ADA depends, in part, on what one interprets its mandate to be. Thus far, however, a great deal of the ADA analysis has remained at the initial level of determining whether the individual can even qualify as having a “disability.” One area in which this has been difficult has been for post-secondary students with learning disa- bilities. As Wendy Hensel notes, [t]he problem for most students in higher education, particularly those in graduate or professional school, is that they have attained a level of educational achievement which surpasses the majority of Ameri- cans. Some large cities have nearly 50% of their stu- dents drop out of high school with no diploma, and nationally less than one-third of all adults attain col- lege degrees. There is abundant evidence that the av- erage person cannot read at a high school level, let alone at a collegiate one.106 The following case exemplifies the ongoing struggle that law students con- tinue to face with regard to seeking reasonable accommodations on bar ex- aminations. B. The Bartlett Case In Bartlett v. New York State Board of Law Examiners,107 despite be- ing given extra time throughout law school, on the Multistate Professional Responsibility Examination and on the Pennsylvania Bar Examination, the New York State Board of Law Examiners repeatedly denied Dr. Bartlett’s applications for accommodations based upon a learning disability.108 Individuals with learning disabilities often have a difficult time con- veying their skills on standardized tests that are timed, yet, New York Bar Board member Laura Taylor Swain testified that the bar examination is not intended to measure the ability to work under time constraints.109 Rather, the Board assumes that there is sufficient time for the average person to an- swer the questions.110 In fact, the Board has never attempted to determine 106. Wendy F. Hensel, Rights Resurgence: The Impact of the ADA Amendments Act on Schools and Universities, 25 GA. ST. U. L. REV. 641, 672 (2009). 107. Bartlett v. N.Y. State Bd. of Law Exam’rs, 970 F. Supp. 1094 (S.D.N.Y. 1997). 108. Id. at 1101-04. 109. Id. at 1130. 110. Id. at 1130-31. 358 INDIANA HEALTH LAW REVIEW [Vol. 8:2 what reading speed is needed under standard conditions.111 Instead they assume that there is enough time for most people.112 The United States District Court for the Southern District of New York found that a reading disorder cannot be assessed solely by the Wood- cock Reading Mastery Test (“WRMT”), a standardized test of reading mas- tery, since it does not make distinctions between rates of automaticity, nor does it measure the ability to recognize and read a word with fluency.113 Furthermore, the WRMT was created to test children and does not have a sufficient number of difficult questions for the average adult.114 Most im- portantly, since the WRMT is not a timed test, it is incapable of measuring how slowly someone reads, which is a significant component of diagnosing an adult with dyslexia.115 The court of appeals agreed with the district court that Dr. Bartlett does have a disability pursuant to the ADA and the Rehabilitation Act.116 Yet, the court of appeals held that the district court erred in going as so far as to find whether Dr. Bartlett had a disability with regard to her ability to “work” since the district court could have concluded that she has a disabil- ity that substantially limits her major life activities of “reading” and “learn- ing.”117 Given her reading and learning disability, the court of appeals held that the district court’s ultimate conclusion, that Dr. Bartlett requires rea- sonable accommodations, was correct.118 A person has a disability under the ADA and Section 504 of the Reha- bilitation Act if, he or she has “a physical or mental impairment that sub- 111. Id. at 1131. 112. Id. at 1130-31. In 1992 the New York Court of Appeals commissioned a study called, An Evaluation of the New York State Bar Examination. Otherwise known and the Millman Report, this study was released in May of 1993. It found that the Bar Exam tested only legal knowledge, legal reasoning, and legal ability. The Millman Report did not assess the impact of time pressure. Instead the panel of experts who measured content validity found that speed should not be a major component of the examination. JASON MILLMAN ET AL., AN EVALUATION OF THE NEW YORK STATE BAR EXAMINATION (1993). This supports the district court's rejection of the Board’s claim that the bar examination was intended to be a reading test in the Bartlett case. The district court found that “speed in reading is not tested by the Bar Examination, nor is speed in reading one of the essential functions of lawyering.” Bartlett, 970 F.Supp. at 1128. The court held that the Board was “estopped from arguing that the Bar Examination is intended to test either reading or the ability to perform tasks under time constraints.” Id. In reaching this conclusion, the court pointed out that “numerous accommodations, including time extensions are granted every year to persons whose physical impairments make it difficult visually to read, including persons who are blind.” Id. at 1130. The simple fact that there are blind members of the Bar indicates that the bar examination does not require a visual ability to read. 113. Id. at 1114. 114. Id. 115. Id. at 1112. 116. Bartlett v. N.Y. State Bd. of Law Exam’rs, 156 F.3d 321 (2d Cir. 1998). 117. Id. at 329. 118. Id. at 327. 2011] ECONOMIC CRITIQUES OF DISABILITY LAW 359 stantially limits one or more [of the] major life activities.”119 While neither of these statutes defines this language, Congress authorized the EEOC to issue regulations regarding discrimination in the workplace under Title I of the ADA.120 Congress authorized the DOJ to issue interpretive guidelines regarding discrimination in public and private service organizations under Titles II and III of the ADA.121 Dr. Bartlett brought suit against the Board as a public licensing entity pursuant to Title II of the ADA.122 She argued that she had an impairment that substantially limited her major life activities of “learning,” “reading” and “working.”123 The DOJ’s regulations defining “physical or mental impairment” pursuant to Title II of the ADA include “specific learning disabilities.”124 Furthermore, these regulations define “major life activities” as expressly including “learning and working.”125 Title II regulations do not clarify the meaning of “substantially limits,” but the DOJ has said to look to Titles I and III in interpreting Title II, as long as these provisions are not inconsistent with the Rehabilitation Act regula- tions.126 The Second Circuit held that self-accommodating measures employed by Bartlett should not be considered when determining whether she was substantially limited in a major life activity.127 Given the Supreme Court’s decision in Sutton that mitigating measures should be part of a substantially limited determination, the case was remanded to the district court.128 The district court held that Bartlett was not substantially limited given her self- accommodation measures.129 The Second Circuit disagreed for a second time, finding that average skills on some measures did not offset below av- erage skills on other measures when the latter substantially limited her abil- ity to read.130 Slow reading speed could be distinguished from wearing contact lenses, which is what the district court used as a comparison.131 119. 42 U.S.C. § 12101(1)(A) (2009); see also 29 U.S.C. § 706(9) (2010). 120. 42 U.S.C. § 12116 (2006). 121. 42 U.S.C. § 12134(a) (2006) (Title II, Subtitle A); 42 U.S.C. § 12186(b) (2006) (Title III). 122. See 42 U.S.C. § 12132 (2006). 123. Bartlett, 156 F.3d at 328. 124. 28 C.F.R. § 35.104 (2011) (Disability). 125. Id. 126. 28 C.F.R. § 35.103(a) (2011). 127. Bartlett v. N.Y. State Bd. Of Law Exam’rs., 226 F.3d 69, 74 (2d Cir. 2000). 128. Id. 129. Bartlett v. N.Y. State Bd. of Law Exam'rs, No. 93 CIV. 4986(SS), 2001 WL 930792, at *1 (S.D.N.Y. Aug. 15, 2001). 130. Bartlett, 226 F.3d at 81. 131. Id. 360 INDIANA HEALTH LAW REVIEW [Vol. 8:2 V. RECOMMENDATIONS The legal community should promote the understanding that lawyer- ing is just as much about coming up with creative legal arguments as it is about being able to read quickly. The real question should be whether the person who wishes to be a lawyer has the analytical and creative skills to contribute to the profession. We do not ask people whether they can walk the fifteen miles it might take to get to work each morning. We recognize that with the use of a car they can arrive at work on time. Frequently, disa- bilities can be reasonably accommodated. Yet, it remains to be seen how broadly the judicial system will be willing to interpret Congress’s man- date.132 Finding that Bartlett does not read at the level of an average person is similar to Justice White’s dissent in Rowley. In Rowley, Justice White used the Mills finding to argue that providing Amy with an equal educational opportunity would require an interpreter since, in comparison to her class- mates, she could only understand half of what was going on in the class- room.133 Having a Ph.D. and a J.D. would generally be considered to be above average, yet in the same way Justice White broke Rowley’s disability into its component parts, the court of appeals in Bartlett concluded that Dr. Bartlett’s impairments in automaticity and phonological processing cause a substantial limitation to a major life activity. Reasonable accommodation of a learning disability offers a useful sliver of the disability debate with which to assess the powerful role that the ADAAA can play in restoring the civil rights of people with disabilities. The ADAAA’s clarification of definitions applies to both the ADA and to the Rehabilitation Act giving students generally and law students with learning disabilities in particular clear rights to reasonable accommodations that help them read, concentrate, and learn. While the ADAAA did not need to strengthen “reasonable accommodation” language under the ADA since it was already a very comprehensive framework, this article recom- mends that federal disability legislation’s broad “reasonable accommoda- tion” provisions be implemented without further delay. 132. Alex B. Long, Introducing the New and Improved Americans with Disabilities Act: Assessing the ADA Amendments Act of 2008, 103 NW. U. L. REV. COLLOQUY 217, 228 (2008) (noting that, “[u]nfortunately, Congress has done little to assist courts in devising a clearer standard regarding what qualifies as a ‘reasonable’ accommodation. The original version of the ADA did little to define the concept, leaving it to the courts to flesh out its contours. Unfortunately, the few times the Supreme Court has addressed the concept of reasonable accommodation or reasonable modification, the cases have been so fact specific as to provide little guidance for future cases.”); see also Conference Panel, What the ADA Amendments and Higher Education Acts Mean for Law Schools, 18 AM. U. J. GENDER SOC. POL'Y & L. 13 (2009) [hereinafter Conference Panel]. 133. Hendrick Hudson District Bd. of Educ. v. Rowley, 458 U.S. 176, 193 (1982). 2011] ECONOMIC CRITIQUES OF DISABILITY LAW 361 Litigation may turn on nuanced hardship analyses134 but general recognition should be forthcoming that, as the EEOC explains, “most ac- commodations can be provided at little or no cost.”135 Mastroianni goes on to address the important role of law schools in following through on the ADA’s mandate: I think it's important for us to take a step back and look at how wrong the United States Supreme Court and the lower federal courts were in interpreting this law. What are we not getting across in legal educa- tion that’s enabling judges and enabling attorneys who are working with these laws to understand that, yes, the definition of “disability” is broad; that yes, it’s a remedial civil rights statute and it should be in- terpreted broadly.136 I recommend that legal education emphasize the acquisition of critical thinking skills and the effectiveness of a combination of superior intellect, judgment, dedication, and interpersonal skills in serving society. Part of this paradigm shift involves achieving a broader recognition of assistive technology and other reasonable accommodations as well as recognition of leaders in the legal profession who have disabilities. The National Associa- tion of Law Students with Disabilities has begun establishing mentoring and networking communities.137 Existing networks of all stripes can help support the disability community to thrive in a legal arena. Disability is a cross-cutting issue that can and should be considered with regard to infrastructure, assistive technology, and educational theory. Recognizing that universal design can optimize learning and assessment across an entire learning community can lead to increasing small group in- teraction, take-home assignments, and a range of multi-sensory teaching approaches. Computers have allowed many attorneys with disabilities to work independently, reducing the need to request accommodations. For others it is still important to obtain extended exam and assignment time, interpreters, texts in an alternate format, etc. Beyond task-based accommo- dations, individual law schools, the American Bar Association (“ABA”), and the American Association of Law Schools (“AALS”) can collectively 134. Conference Panel, supra note 132, at 30. 135. U.S. Equal Employment Opportunity Commission, Reasonable Accommodations for People with Disabilities, EEOC, www.eeoc.gov/facts/accommodations-attorneys.html (last visited Feb. 2, 2011); see also Donald H. Stone, The Disabled Lawyers Have Arrived; Have They Been Welcomed with Open Arms Into the Profession? An Empirical Study of the Disabled Lawyer, 27 LAW & INEQ. 93, 103 (2009). 136. Conference Panel, supra note 132, at 24. 137. Id. at 26. 362 INDIANA HEALTH LAW REVIEW [Vol. 8:2 play a powerful role in supporting the establishment and linkage of disabil- ity support and advocacy communities. My recommendation, as courts begin to balance reasonable accommo- dations vis-a-vis academic and licensing standards under the ADAAA,138 is to implement best practices that maximize optimal learning and assessment conditions for everyone. While cost is a concern to legal and professional institutions alike, equity and efficiency can be balanced through broad im- plementation of requisite reasonable accommodations pursuant to federal disability legislation. VI. CONCLUSION In the over three decades since the passage of the Rehabilitation Act in 1973 we have come a long way in ensuring that the civil rights of people with disabilities are respected. Given the lag time between passing such laws as the ADA and having them effectively implemented, the law is still in it’s infancy in coming to terms with recognizing civil rights on the basis of disability. We have a great deal of work yet to do to embrace individuals who have disabilities on a participatory level. IDEA did succeed in ending the exclusion of students with disabilities from public school, providing a range of special education programs, and giving schools incentives to increase their provisions for children with disa- bilities. In return for complying with federal statutory mandates, Congress provides states with partial funding. Therefore, if states offer special educa- tion services within certain specifications, they can receive federal aid. While this has helped schools create programs, it has also distorted the identification process. As a result, the labeling process sometimes drives services. Separating special education services from funding mechanisms, however, would dismantle the equilibrium of incentives. If IDEA were not funded, schools would have inefficient incentives to provide services. That is to say, schools would have a strong incentive to avoid identifying stu- dents with disabilities. If IDEA were fully funded, however, there would be no incentive to make sure the costs of the service were worthwhile to the 138. Jenkins v. Nat’l Bd. of Med. Exam’rs, No. 08-5371, 2009 WL 331638 (6th Cir. Feb. 11, 2009) (detailing how plaintiff, a third-year medical student, was diagnosed with a reading disorder early in life and had received accommodations throughout his academic career). The Jenkins case did not resolve the balancing between academic standards and reasonable accommodations. See also Hensel, supra note 106, at 672, 684 (noting further that, “[t]he ADAAA will undoubtedly expand eligibility for students with disabilities in elementary and secondary school seeking accommodations pursuant to § 504 of the Rehabilitation Act. This may prove to be problematic for schools, particularly in the context of children with learning disabilities. The newly liberal § 504 eligibility standards are in tension with the restrictive threshold interpretation that some courts and administrative hearing officers have given to learning disabilities under IDEA. This conflict has the potential to result in confusion for administrators and the inconsistent treatment of similarly situated children.”). 2011] ECONOMIC CRITIQUES OF DISABILITY LAW 363 special needs child. In this way, IDEA enables change by providing new resources, but the change is bound by the limitations of these resources. If enough states increase the standard of educational services provided to children with disabilities, then the Supreme Court may overturn the Row- ley precedent. The paradox of compensation, however, illustrates that the latter would simply reverse incentives—still leaving one party with the in- centive to be inefficient in analyzing the costs and benefits of providing special education services. Proportional quality programming, on the other hand, can alleviate the tension created by establishing individualized rights for one disadvantaged group by evaluating those rights in relation to legiti- mate goals of the system in which those rights must be provided. The suc- cess of a quality approach, however, depends on decision-makers’ ability to remain committed to establishing protective rights for special needs chil- dren without allowing these rights to preempt those of non-disabled chil- dren. In this way, we can go beyond simply allowing every child to occupy a chair in the classroom to providing each child the opportunity to learn. What happens, however, when students who are over the age of twen- ty-one try to request accommodations in undergraduate and graduate pro- grams? Higher education is becoming an essential credential in a competitive market place. IDEA, however, no longer protects these stu- dents’ rights to special accommodations. Ultimately, individual biases can- not be eliminated through legislation. However, when those personal misconceptions affect an individual’s ability to pursue their legal right to equal education and access to professional entrance examinations, then it is society’s responsibility to end such institutionalized discrimination. In our society, we need to recognize how dangerous it is to set aside individuals who are unable to conform to a given mold no matter how eco- nomically or socially efficient restricted access may appear. In Rawls’ the- ory of justice, individuals are put in a room without knowing where in society they would return.139 They are deprived of a sense of history and thus do not know whether they were a minority group in the past or will be so in the future. This veil of ignorance takes away all cultural and historical perspective. Rawls first tenet, that there would be a maximum level of lib- erty, would ensure that each person has as much liberty as possible as long as everyone else has the same level of liberty. His second tenet that social and economic inequalities would be arranged in accordance with the great- est benefit of the least advantaged and that positions would be open to all ensures equal opportunity. In predicting what maxims people would create for society, Rawls points out that no one would want to be on the bottom.140 People would decide to make everyone equal—thus, maximizing the bene- 139. RAWLS, supra note 11. 140. Id. 364 INDIANA HEALTH LAW REVIEW [Vol. 8:2 fit of the least advantaged in order to raise them up to the same level as those who are already advantaged. While Rawls does not provide a historical account of how people have gone about protecting civil rights, his theory of justice provides a useful philosophical rational for granting such rights. Like any model, there are problems with thinking that reality will correspond perfectly with such a hypothetical state of society. Lack of exposure and understanding of disa- bilities in general can skew people’s commitment to providing a sufficient safety net in the area of disability protection. A substantial body of litiga- tion provides evidence of this lack of commitment. Furthermore, there are some disabilities to which people do not believe they would be susceptible. Ignorance and irrational discounting of personal risk can lead to an insuffi- cient level of disability protection. There are disabilities that tend not to develop until later in a person’s life. Despite the fact that learning disabilities can result from severe head injuries, people who do not already have a learning disability generally do not believe that they are susceptible to such a condition. Thus, applying Rawls decision-making model to accommodating the needs of people with learning disabilities may not work as well as applying the theory to accom- modating a condition to which people feel more susceptible. The scenario is complicated by the level of ignorance about the hidden nature of learning disabilities vis-a-vis the more obvious needs of someone who uses a wheel chair. Reality appears to only reflect half of a Rawlsian model. While we do not know what will occur in the future, we are not blind to the past or to present hierarchies of physical and mental aptitude. Nor do we set aside the existing distribution of wealth when deciding whether to pay for civil rights measures for people with disabilities. Within this middle ground lies a sub- stantial opportunity to carry out the full intent of Congress in passing feder- al disability legislation. Now that we have clarified a broad civil rights approach, the legal community can move on to helping individuals with disabilities obtain reasonable accommodations.