Because they're otherwise qualified: Accommodating learning disabled law student writers

Journal of Legal Education

Volumn 46, Issue 2, 1996, Pages 189-214

  Adams, Susan Johanne ^a  

^a CHICAGO KENT COLLEGE OF LAW   (United States)

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EID: 21344450034     PISSN: 00222208     EISSN: None     Source Type: Journal    
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References (143)

1. In April 1995, the issue had an important presence at the ABA Joint Conference on Disabilities Issues in St. Louis.
2. The literature includes William A. Mehrens et al., Accommodations for Candidates with Disabilities, B. Examiner, Nov. 1994, at 33, 36;
3. G. R. Overton, Accommodation of Disabled Persons, B. Examiner, Feb. 1991, at 6;
4. Marjorie Ragosta, Testing Bar Applicants with Learning Disabilities, B. Examiner, Feb. 1991, at 11;
5. Laura F. Rothstein, Introduction to Disability Issues in Legal Education: A Symposium, 41 J. Legal Educ. 301 (1991);
6. M. Kay Runyan and Joseph F. Smith, Jr., Identifying and Accommodating Learning Disabled Law School Students, 41 J. Legal Educ. 317 (1991);
7. Frank R. Vellutino, Documenting the Existence of 'Dyslexia,' B. Examiner, Nov. 1994, at 6, 6-7. Some have questioned how far interpretations of the Americans with Disabilities Act should go to require that law schools forgive poor college performance and failing law school grades.
8. See, e.g., Arthur Frakt, Learning Disabilities: Law School Dilemma, Nat'l L. J., Aug. 1, 1994, at A19. Frakt, dean of Widener University School of Law, remarks: "An individual who lacks the ability to think, reason and solve problems under exam pressures probably will be unable to resolve problems in a timely manner that come up in the practice of law."
9. Id. Frakt calls for Congress to narrow "the application of the ADA in learning-disability situations to those cases in which there is a discrete disability that does not compromise reasoning functions and may be remedied simply."
10. Id. Frakt calls for Congress to narrow "the application of the ADA in learning-disability situations to those cases in which there is a discrete disability that does not compromise reasoning functions and may be remedied simply."
11. Remediation refers to developing effective ways to teach writing concepts so that LD students wll internalize the principles and reproduce them automatically in their writing. Compensation refers to strategies that LD students develop to capitalize on strengths in order to bolster their weaknesses. For example, an aural learner who has difficulty listening to a lecture and taking notes simultaneously will tape lectures. Accommodation refers to measures provided by institutions to alter the writing circumstances in such a way that the students' skills can be put on an equal footing with nondisabled students. For example, accommodation might include permission to use word processors to write examinations if the student has poor handwriting or spelling deficits, or the provision of extra time for essay exams if writing production is slow and organization is a problem. The term accommodation is the one used by federal statutory provisions that mandate special arrangements for those who can demonstrate specific learning disabilities.
12. See generally Mina P. Shaughnessy, Errors and Expectations (New York, 1977). Shaughnessy coined the term "basic writer" to refer to the student who lacks rigorous formal training in writing or experience producing written language. While she does not address the specific needs of LD writers, her study focuses on college-level writers, and most of the strategies she suggests are enormously useful in working with LD writers.
13. See also Noel Gregg, College Learning Disabled Writer: Error Patterns and Instructional Alternatives, 16 J. Learning Disabilities 334, 335 (1983).
14. While some materials are available that focus on the "how to" aspects of dealing with LD students, they are directed mainly at the needs of undergraduate or younger students, and they attempt to address the broad spectrum of learning disabilities rather than focusing exclusively on those students with writing problems.
15. In fact, such luminaries as Edison, Rodin, Woodrow Wilson, Flaubert, Yeats, and even Einstein are said to have suffered from a learning disability of some sort, although this "diagnosis" is only anecdotal. Introduction, in Adults with Learning Disabilities: Clinical Studies, eds. Doris J. Johnson and Jane W. Blalock, 1, 1-2 (Orlando, 1987) [hereinafter Adults];
16. See Joseph K. Torgersen, Learning Disabilities: Historical and Conceptual Issues, in Learning About Learning Disabilities, ed. Bernice Y. L. Wong, 7, 7-17 (San Diego, 1991) [hereinafter Learning].
17. Anna Gajar, Assisting the Learning Disabled: A Program Development and Service Delivery Guide for University Service Providers, Diagnosticians, Tutors, Counselors, and Learning Disabled Students, 2 (University Park, Pa., 1986).
18. Scott B. Sigmon, Reaction to Excerpts from The Learning Mystique: A Rational Appeal for Change, 22 J. Learning Disabilities 298 (1989). Samuel Kirk is credited with introducing the term learning disabilities at the 1963 Conference on Exploration into Problems of the Perceptually Handicapped Child. In defining the term, he expressly excluded those with sensory disabilities or general mental retardation.
19. Torgersen, supra note 5, at 14.
20. 20 U. S. C. § 1401 (a) (15);
21. See also 34 C. F. R. § 300.541 (outlining criteria for finding a specific learning disability). Recommendations have been made for changes in the definition to recognize, among other factors, that learning disabilities are a heterogeneous group of disorders and that they often persist into adulthood. In addition, the definition fails to acknowledge that problems in social interaction are also characteristic of children with learning disabilities. Torgersen, supra note 5, at 21;
22. See also Runyan and Smith, supra note 1, at 318-19 and nn. 7-9 (discussing Department of Education's reluctance to include social deficits in the definition). The description of learning disability in the Diagnostic and Statistical Manual of Mental Disorders, 4th ed. (Washington, 1994) [hereinafter DSM-IV] of the American Psychiatric Association is similar, but includes a recognition of social deficits: Learning Disorders are diagnosed when the individual's achievement on individually administered, standardized tests in reading, mathematics, or written expression is substantially below that expected for age, schooling, and level of intelligence.... Substantially below is usually defined as a discrepancy of more than 2 standard deviations between achievement and IQ.... Demoralization, low self-esteem, and deficits in social skills may be associated with Learning Disorders.... There may be underlying abnormalities in cognitive processing (e.g., deficits in visual perception, linguistic processing, attention, or memory, or a combination of these) that often precede or are associated with Learning Disorders.
23. Id. at 46-47.
24. Torgersen, supra note 5, at 22.
25. Id. at 30;
26. See also Bob Algozzine, Decision Making and Curriculum-Based Assessment, in Learning, supra note 5, at 39.
27. ADD is characterized by the inability to focus concentration on a task. It is sometimes associated with hyperactivity, which, in turn, is often characterized by a high level of distractibility. See DSM-IV, supra note 8, at 78 (ADHD is a "persistent pattern of inattention and/or hyperactivity-impulsivity that is more frequent and severe than is typically observed in individuals at a comparable age and level of development.");
28. See generally Russell A. Barkley, The Assessment of Attention in Children, in Frames of Reference for the Assessment of Learning Disabilities, ed. G. Reid Lyon, 69, 69 (Baltimore, 1994) [hereinafter Frames];
29. Richard Conte, Attention Disorders, in Learning, supra note 5, at 59, 63.
30. These tests must have been taken within the previous three years. The LSAS requires an information processing deficit and a showing of an achievement/aptitude discrepancy of 1.5 standard deviations. 1995-96 LSAT Accommodations Request Verification Form. For a more detailed description of these tests, see Gajar, supra note 6, at 27-33.
31. The test provides a full-scale intelligence quotient as well as a verbal IQ and a performance
32. The individual scores on the different segments of the test are then compared with the performance of an age-appropriate comparison group.
33. Stephen R. Hooper et al., Measurement of Written Language Expression, in Frames, supra note 11, at 375, 410. Hooper notes that there are few effective instruments available to measure the quality of written discourse. He cautions that [a]ny model for instruction should encompass the process, product, and purposes of the writing process, and an assessment model should tap these in a corresponding fashion. At present, no single instrument has been designed to address all of the aspects of written language expression, with a noticeable lack of formal instruments being available to clinicians and researchers.
34. Stephen R. Hooper et al., Measurement of Written Language Expression, in Frames, supra note 11, at 375, 410. Hooper notes that there are few effective instruments available to measure the quality of written discourse. He cautions that [a]ny model for instruction should encompass the process, product, and purposes of the writing process, and an assessment model should tap these in a corresponding fashion. At present, no single instrument has been designed to address all of the aspects of written language expression, with a noticeable lack of formal instruments being available to clinicians and researchers. Id.
35. See Jeffry Gallet, The Judge Who Could Not Tell His Right from His Left and Other Tales of Learning Disabilities, 37 Buff. L. Rev. 739, 742 (1988) (how a state court judge copes with an array of disabilities: "Although I do it differently from the rest of you, I read very efficiently. And although I do it differently from the rest of you, I write very efficiently. But I am always going to be a little different from the rest of you. Not better, not worse-different.").
36. 29 U. S. C. § 794. The operative language is that "[n]o otherwise qualified individual with a disability in the United States... shall, solely by reason of her or his disability, 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."
37. 29 U. S. C. § 794 (a).
38. The term "otherwise qualified" was first interpreted by the Supreme Court in Southeastern Community College v. Davis, 442 U. S. 397, 406 (1979), when it determined that disabled persons are "otherwise qualified" if they are "able to meet all of the program's requirements in spite of... handicap," but did not require that the program standards be substantially lowered to accommodate the disabled.
39. See also 45 C. F. R. § 84.3 (k) (1) (determining that, for purposes of employment, one is "otherwise qualified" when one can perform "essential functions" of job).
40. The extent of the required accommodation under the Rehabilitation Act continued to plague the courts, and the Supreme Court considered that issue in Alexander v. Choate, 300, ruling that, while the federally funded entity "need not be required to make 'fundamental' or 'substantial' modifications to accommodate the handicapped, it may be required to make 'reasonable' ones." The First Circuit examined the extent of "reasonable accommodation" required in a situation where a medical student, recently identified as being learning disabled, requested that he be allowed to take an exam in a non-multiplechoice format
41. Wynne v. Tufts Univ. School of Medicine, 932 F.2d 19 (1st Cir. 1991) (reversing grant of summary judgment to Tufts and remanding)
42. Appeal after remand, 976 F.2d 791 (1st Cir. 1992) (granting summary judgment to Tufts)
43. Cerl. denied, 113 S. Ct. 1845 (1993). In Wynne, the First Circuit announced a test that attempts to balance the needs of the disabled with the requirements of academic rigor: If the institution submits undisputed facts demonstrating that the relevant officials within the institution considered alternative means, their feasibility, cost and effect on the academic program, and came to a rationally justifiable conclusion that the available alternatives would result either in lowering academic standards or requiring substantial program alteration, the court could rule as a matter of law that the institution had met its duty of seeking reasonable accommodation. 932 F.2d at 26;
44. See generally Laura F. Rothstein, Disabilities and the Law (New York, 1992).
45. 20 U. S. C.§ 1401 (a) (1) (A) (i) - (ii).
46. 34 C. F. R.§104.3 (j) (2) (i) (B).
47. 42 U. S. C. § 12101-12213.
48. 42 U. S. C. § 12102 (2) (A);
49. C. F. R. § 1630.2 (h).
50. 42 U. S. C. § 12102 (2) (A);
51. C. F. R. § 1630.2 (i). The Department of Justice regulations implementing ADA state further that "mental or physical impairment" means "any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities." 28 C. F. R. § 35.104 (Title II);
52. C. F. R. § 36.104 (Tide III). But the term specific learning disabilities is not further defined.
53. See generally 29 C. F. R. § 1630 app. (noting Congress's intention that the ADA adopt many Rehabilitation Act definitions and Rehabilitation Act case law).
54. Recently much has been written comparing the coverage of the Rehabilitation Act to that of the ADA. See, e.g., Robert W. Edwards, The Rights of Students with Learning Disabilities and the Responsibilities of Institutions of Higher Education Under the Americans with Disabilities Act, 2J. L. and Pol'y 213 (1994);
55. Claire E. McCusker, The Americans with Disabilities Act: Its Potential for Expanding the Scope of Reasonable Academic Accommodations, 21 J. C. and U. L. 619 (1995);
56. Wayne A. Hill, Jr., Note, Americans with Disabilities Act of 1990: Significant Overlap with Section 504 for Colleges and Universities, 18 J. C. and U. L. 389 (1992).
57. The ADA has proved to be a powerful instrument. Perhaps because of the high visibility that the implementation of the ADA has enjoyed in recent years, especially in access issues, many disabled persons have pressed their rights with more tenacity than they had done under the similar provisions of the Rehabilitation Act. For a useful discussion and citations to materials and programs developed by other universities to address learning disabled students
58. See Runyan and Smith, supra note 1.
59. U. S. Dep't of Education, Office of Special Education Programs, Implementation of the Individuals with Disabilities Education Act: 16th Annual Report to Congress 7 (1994). Between 1976-77 and 1992-93, "the percentage of students age 6 through 21 served under IDEA who had specific learning disabilities increased from 23.8 percent to 52.4 percent...."
60. Id. at 10. The report also notes: "The greatest potential for growth lies in the category for children with other health impairments, since an estimated 3 to 5 percent of all children suffer from ADD."
61. Id. at 10. The report also notes: "The greatest potential for growth lies in the category for children with other health impairments, since an estimated 3 to 5 percent of all children suffer from ADD." Id.
62. See Tamar Lewin, For Learning Disabled, New Help with College, N. Y. Times, Jan. 8, 1995, § 14A (Education Life), at 26. The article also indicated, as a measure of the rapid increase in such disabilities, that 27, 000 students requested accommodation on the SAT exam in 1994, while only 16, 000 had made such a request in 1989.
63. Accommodation is available in the form of increased time, readers, amanuenses, and tape recorders. 1995-96 LSAT Accommodations Request Verification Form at 2. For a student who demonstrates a learning disability regarding writing (syntax, organization, handwriting, mechanics), the normal accommodations may offer no assistance.
64. Linda F. Wightman, Test Takers with Disabilities: A Summary of Data from Special Administrations of the LSAT, LSAC Research Report Series #933-03, at 2 (Dec. 1993). Interestingly, statistics collected in 1989 indicated that 53.8 percent of all disabled professional school applicants went into law while only 47.7 percent of their nondisabled colleagues did so. U. S. Dep't of Education, Office of Educational Research and Improvement, National Center for Education Statistics, Digest of Education Statistics 1994, Table 206. Almost 9 percent of all law students have a disability of some kind. U. S. Dep't of Education, Profile of Handicapped Students in Postsecondary Education 1987, Survey Report by the National Center for Education Statistics CS 89-337 (June 1989).
65. Wightman, supra note 30, at 11.
66. Id. LSAC figures also show that more than 50 percent of all LD accommodated test-takers repeat the LSAT at least once.
67. Id. at 18. Nearly 70 percent of the accommodated LSATs were given to males, and 80 percent to Caucasians.
68. Id. at 15 and Table 4. Males are diagnosed as learning disabled four times more frequently than females. Pamela B. Adelman and Susan A.
69. Vogel, The Learning-Disabled Adult, in Learning, supra note 5, at 563, 584.
70. When the LSAS reports the scores on such tests, it indicates that the applicant was afforded an accommodated administration, but the applicant's request for LSAT accommodation and any supporting documentation will not be forwarded unless the applicant authorizes the LSAC to do so. LSAT/LSDAS Registration and Information Book, 1995-96, at 11;
71. See SUNY Health Science Center at Brooklyn-College of Medicine (NY), 5 NDLR ¶ 77 (Off. of Civ. Rts., U. S. Dep't of Educ. 1993) (an OCR ruling that seems to support LSAC's flagging accommodated LSAT scores).
72. See Alfreda A. Sellers Diamond, L. D. Law: The Learning Disabled Law Student as a Part of a Diverse Law School Environment, 22 S. U. L. Rev. 69, 80-82 (1994) (discussing LD students' unwillingness to take advantage of extraordinary services and comparing it to "threat felt by people of color and women who experience oppression due to dominant normative hierarchies" and willingness to "trade stigmata," preferring lower grades to wearing the label of being less than normal). In an anonymous 1995 survey of about 350 first-year Chicago-Kent law students, nine students responded "yes" when asked whether they had ever been diagnosed as having a learning disability that bears on writing skills. But no students had in fact identified themselves as learning disabled during the application process or after enrolling. Of course, there are a number of reasons why this would be the case, including the student's assumption that the disability was now well under control. The Chicago-Kent Writing Survey, which I administer, is given annually to students at the beginning of their second semester at law school. It explores undergraduate and high school writing experience, and the students' perceptions of their writing-readiness for law school. (Results available on request.)
73. The Rehabilitation Act prohibits discrimination in the admissions process and makes it improper to request preadmission information about disabilities except for the purpose of remediating past discriminatory practices. 34 C. F. R. § 104. 42 (c).
74. Determining whether a declared learning disabled student is "otherwise qualified" involves a careful study of the undergraduate record, the LSAT, and any testing data that have been offered to the law school in support of the application for admission or for LSAT accommodation. A serious reading deficit obviously poses a major problem, especially if the student's academic record reveals that she has chosen courses with minimal reading expectations. A similar analysis should be made of the student's writing record if the student claims a deficit in composition. There may be reason for concern if the student has clearly chosen a major and electives that normally put little or no stress on writing. If, on the other hand, there is evidence from the transcript and application that the student has struggled to confront the deficit (in a classroom or work setting), with or without accommodations, this factor should weigh in her favor. The contents of the application may be minimally useful, given the possibility that the applicant sought help from others in its preparation. A weak showing on the LSAT writing sample may offer strong clues, but should probably not be dispositive, if the record is otherwise strong, because of the stressful conditions of the LSAT. In any case, if an applicant either declares a writing deficit or demonstrates seriously poor writing skills in the sample or the application, the admissions committee would be wise to consult a writing specialist. Students who are disinclined to identify themselves as learning disabled should keep in mind that in some states the bar examiners may adopt a use-it-or-Iose-it approach to permitting accommodations on bar exams when the LD student has survived law school without accommodation or when the student is diagnosed following law school-especially when the diagnosis comes after the student has failed the bar one or more times. The student who can demonstrate that the disability was diagnosed at an earlier date and who has a record of benefiting from accommodation will make a stronger case in an application for an accommodated bar exam.
75. A useful aid to all disabled law students is the type of comprehensive handbook that has been assembled by the University of California Hastings College of the Law and the University of Houston Law Center; the Houston handbook provides a comprehensive listing of available resources, procedures, and accommodation request forms. University of Houston Law Center Handbook for Students and Applicants with Disabilities (1993). The handbook requires that students wishing accommodation for learning disabilities provide professional testing and evaluation results: The four criteria necessary to establish a student's eligibility for learning disability adjustments or accommodations are: (1) average or above average intelligence as measured by a standardized intelligence test which includes assessment of verbal and non-verbal abilities; (2) the presence of a cognidve achievement discrepancy or an infra-cognitive discrepancy indicated by a score on a standardized test of achievement which is 1.5 standard deviations or more below the level corresponding to a student's sub-scale or full-scale IQ; (3) the presence of disorders in cognitive or sensory processing such as those related to memory, language, or attention; and (4) an absence of other primary causal factors leading to achievement below expectations such as visual or auditory disabilities, emotional or behavioral disorders, a lack of opportunity to learn due to cultural or socio-economic circumstances, or deficiencies in intellectual ability. App. A (Documentation Policy).
76. I intend no general indictment of high schools on this account. In fact, the Chicago-Kent Writing Survey revealed that almost 28 percent of the 349 respondents perceived their most rigorous writing training as coming in high school (for 32 percent it was undergraduate school; for 25 percent, law school).
77. Apparently most undergraduates are still required to take some sort of freshman writing course or seminar. In 1995, 83 percent of first-year students at Chicago-Kent reported that they had been required to take such a course.
78. Fully 31 percent of first-year Chicago-Kent students reported that, as undergraduates, they "rarely" or "occasionally" wrote analytical papers of five or more pages. Similarly, 35 percent reported that they "never" or only "sometimes" had essay components on their undergraduate examinations.
79. "A realization that has emerged from this study is the need to conceptualize learning disabilities as a continuum disablement where more and more students become LD as each succeeding school level is looked at." Robert J. Swan, Testing a Model for Promoting Academic Success of Learning Disabled Students at the University Level 9 (Long Beach, 1983).
80. At the very least, such a misunderstanding of the requirements of law school cries out for more realistic prelaw counseling. Of course, some types of learning disabilities-for example, difficulties with mathematical computation-pose few problems to a law student.
81. Admittedly, some LD attorneys have become quite proficient at compensating for continuing weaknesses, relying heavily on dictaphones and secretaries with superior skills. This expedient may become less and less feasible now that many talented women who might have become legal secretaries a generation ago are going to law school instead.
82. Many of the typical features of the LD writer turn up in a number of the early papers in a legal writing course. Inevitably, the legal writing teacher must address bad writing habits and fill in the blanks for students whose prior training has been weak. Not every student who fails to tidy up her writing skills has a learning disability; writing faculty are all too aware of the cynical student who chooses to devote energies to the other first-year courses, especially if those courses carry more credit and require less time, or if the grades in legal writing are pass/fail. Some students may tune out on legal writing if their egos cannot withstand the scrutiny of their writing, if they have had bad experiences in previous writing courses, or if they fail to see that writing is an essential professional skill.
83. See Noel Gregg et al., Written Sentence Production Error Patterns of College Writers with Learning Disabilities, 3 Reading and Writing: An Interdisciplinary J. 169 (1991). Gregg has developed a complex scheme for analyzing syntactical error patterns in adult writing. He notes that punctuation, capitalization, and spelling are of particular concern, and reminds us that "[m]echanical errors can often be a red flag for syntax disorders rather than simply the result of lack of instruction. "
84. Id. at 180.
85. Hooper et al., supra note 15, at 375.
86. See Doris J. Johnson, Disorders of Written Language, in Adults, supra note 5, at 173, 175-77;
87. Virginia W. Beminger, Future Directions for Research on Writing Disabilities, in Frames, supra note 11, at 419, 421. Studies have now shown that the ability to spell and the ability to speak are controlled by quite different parts of the brain.
88. Elisabeth Wiig and Eleanor Semel, Language Assessment and Intervention for the Learning Disabled, 2d ed., 34 (Columbus, 1984) (quoting L. S. Vygotsky, Thought and Language, ed. 8c trans. Eugenia Haufmann and Gertrude Vakar, 99 (Cambridge, Mass., 1962)).
89. Berninger, supra note 46, at 421.
90. Johnson, supra note 46, at 174. Specialists have estimated that at least 80 percent of all LD adults have disorders of written language.
91. Susan A. Vogel, Issues and Concerns in LD College Programming, in Adults, supra note 5, at 239, 257.
92. If syntax is understood to be a system for indicating the relationships between words in sentences, then almost any error except perhaps some misspellings reflects in some sense a syntactic problem. A comma splice, for example, misrepresents the grammatical independence of two sentences; a missing inflection creates an ambiguous relationship between a word and some other part of the sentence; even a carelessly omitted word can produce a major syntactic derailment.... Syntax is generally, and loosely, used by teachers to mean the "big" problems in sentences-problems that keep a sentence from "working" or being understood.... Shaughnessy, supra note 3, at 46-47.
93. Hooper et al., supra note 15, at 378;
94. See generally Adelman and Vogel, supra note 32, at 563;
95. Vogel, supra note 49, at 239-75;
96. Johnson, supra note 46, at 200-03.
97. Doris J. Johnson, Principles of Assessment and Diagnosis, in Adults, supra note 5, at 9, 24;
98. See also Alyce Barr et al.. Successful College Tutoring: Focussing on the Learning Disabled Student in the Learning Center, Brooklyn Campus Task Force, Long Island University Transition Project 3 (1987).
99. Johnson, supra note 52, at 24.
100. Johnson, supra note 46, at 178.
101. Shaughnessy, supra note 3, at 12-13.
102. Johnson, supra note 46, at 194.
103. Id. at 197.
104. Samual A. Kirk and James C. Chalfant, Academic and Developmental Learning Disabilities 227-28 (Denver, 1984).
105. Johnson, supra note 46, at 198.
106. Kirk and Chalfant, supra note 58, at 226. Students with learning disabilities have difficulty detecting about one-third of their own errors. Indeed, proofreading, in Shaughnessy's view, is one of the "simple" skills students seldom learn.... But it is a way of reading that must be learned, not merely enjoined or, worse, taken over by the teacher. Seeing things is always a selective activity-a matter of not seeing some things in order to see others. In proofreading the.reader must be trained to look consciously at what he would normally need to ignorefeatures of the code itself.
107. Shaughnessy, supra note 3, at 85.
108. One obvious problem for law school administrators is determining the extent of accommodations that would withstand scrutiny under the law. For example, in the writing context, would it be a "reasonable accommodation" to provide an LD writer with an editor who corrects all obvious errors (beyond the support that grammar-checking and spell-checking programs could provide) and rewrites faulty sentences? Would this be appropriate support for the LD writer on essay examinations? While the legal writing teacher could assess analytical abilities in an oral format, this technique would defeat the purpose of the course, which is to develop important writing skills. In short, is there a point where accommodation defeats an important purpose of the curriculum?
109. See generally LSAC/LSAS, Defining Legal Writing: An Empirical Analysis of the Legal Memorandum (Newtown, Pa., 1994). In this study researchers constructed a six-factor model for assessing a memorandum: in order of importance, analysis, style, mechanics, issues, conclusion, and facts. Analysis stresses the application of law to facts, providing support for statements and providing a complete explanation; style involves "clarity, flow, organization, and thesis statements"; mechanics involves grammar, punctuation, word choice. The three most important factors also happen to be the ones most likely to plague the typical learning disabled writer.
110. Another ball for the student to juggle is the requirement of proper legal citation. Citation form is likely to be onerous to the student who has difficulty with rule application, automaticity, and self-monitoring. Legal writing professionals should become familiar with the various citation checking programs, which may provide some measure of support.
111. All other explanations must be ruled out, including very weak academic writing training; lack of writing experience; poor motivation or attitude; English learned as a second language; strong dialect interference; or serious motor, vision, or hearing problems. A sensible course would be to work closely with a weak writer through the first semester and then monitor the student's performance on the first-semester examinations. If the student has performed badly on essay examinations and in the writing class, if the writing shows similar types of severe weaknesses, and if there are no obvious extrinsic factors to explain the poor showing, professional evaluation might be recommended.
112. See Edwards, supra note 25, at 238-47 (arguing that mandatory separate programs for disabled students may constitute denial of equal benefit).
113. Ideally, the student would give permission to the writing teacher to see achievement testing, especially such tests as the composition portion of the Woodcock-Johnson, which would highlight weak areas.
114. A 100-question error-identification diagnostic exercise is readily available in the teacher's annotated edition of Laurel Currie Oates et al., Diagnostic Test for Grammar, Punctuation, and Mechanics, in The Legal Writing Handbook, at A-i (Boston, 1993). A "Pattern of Errors Sheet, "
115. Id. at A10, accompanies the answer key and permits the student to identify specific areas of weakness.
116. The Chicago-Kent exercise has 35 multiple-choice questions and focuses on such chronic problems of mechanics and style as agreement, apostrophes, faulty parallelism, nominalization, and mismodification. The exercise is returned to the students with an answer key that briefly explains the problem illustrated and is cross-referenced to our online Legal Writing Teaching Assistant so the student can get an immediate self-help tutorial on the subject. (Examples available from the author.)
117. Legal writing teachers should not be put off by the idea of yet another grading task. This exercise is valuable in identifying gross writing deficits, but also sends a strong wake-up signal to all writers in the class. A quick checklist rating handwriting, punctuation, organization, spelling, development, sentence variety, and transitions as good, average, or weak makes the grading task easy to accomplish and the assessment easy for the student to understand.
118. The structured, in-class writing exercise is helpful for the entire class because it identifies those students who should consider typing their final examinations. Both severe spelling deficits and illegible handwriting are problems common to LD writers, but they may be a bar to communication for many others as well. Increasingly, typing exams is an option in many law schools, and it should be a standard accommodation for those students who can demonstrate such severe problems.
119. The extreme anxiety that law students contend with, especially in their first year, has been studied extensively. It has been attributed to "the competitive atmosphere, the Socratic Method, the lack of opportunity for feedback, the impersonal nature of the education, and the distant and often mistrustful relations between faculty and students." Michael E. Carney, Narcissistic Concerns in the Educational Experience of Law Students, J. Psychiatry and L., Spring-Summer 1990, at 10.
120. Swan, supra note 40, App. A, at 4.
121. Id. at 25.
122. See Laurel Currie Oates, Conducting Individual Writing Conferences, in The Legal Writing Handbook, supra note 67, at I-61, for further tips about conducting conferences.
123. A program that does not allow for tutorial assistance on work in progress will not best serve the problem writer, who should have access to support throughout the writing process. This may especially be a problem in a program that has an anonymous grading scheme. While it is often the case that the seriously disabled student effectively waives anonymity because of the breadth and depth of the problems, it is imperative that the writing teacher monitor progress unimpeded.
124. The "process" approach to teaching writing is well suited to the complexity of the writing task: Since the 1980s, writing has been conceptualized as a problem-solving process whereby authors attempt to produce visible, understandable, and legible language reflecting their declarative knowledge (i.e., knowledge of the topic). The quality of written products is increased or constrained by a multitude of documented factors, such as an author's declarative knowledge, procedural knowledge (i.e., knowledge of the writing process and various strategies to produce different genres of text), and conditional knowledge (i.e., understanding of which writing strategy to use to produce a specific genre for a particular audience, or an audience with unknown needs and expectations). Less well documented are neuropsychological factors (e.g., attention, language, memory, neuromotor functions, social cognition); personality factors (e.g., motivation, self-esteem); and other endogenous and exogenous factors contributing to the writing process (e.g., teacher-student relationships, amount of writing instruction, teacher knowledge of the writing process).
125. Hooper et al., supra note 15, at 377-78 (citations omitted).
126. Steve Graham et al., Writing Instruction, in Learning, supra note 5, at 309, 312-18 (providing useful description of "writers' workshop" process approach in LD context).
127. Id. at 313, 335.
128. Researchers have stressed that LD students can benefit from understanding their own cognitive processes, or "metacognition," with a view toward developing strategies for manipulating them. Regulation of cognitive processes includes developing such metacognitive activities as "planning, monitoring, testing, revising, and evaluating."
129. Bernice Y. L. Wong, The Relevance of Metacognition to Learning Disabilities, in Learning, supra note 5, at 231, 234. Along the same lines, many teachers are beginning to recognize the usefulness to both students and teachers of a personality inventory such as the well-known Myers-Briggs Type Indicator.
130. See generally John K. DiTiberio and George H. Jensen, Writing and Personality (Palo Alto, 1994). In addition, the University of Denver College of Law's extensive Learning Styles Research Project is currenUy conducting a study of how law students process information, using Kolb's Learning Style Inventory. The results of this three-year project should provide invaluable information about the teaching/learning experience in law school.
131. Dysgraphia is a condition characterized by an inability to reproduce thoughts on paper in a readable form. See Runyan & Smith, supra note 1, at 341-43 (offering useful glossary of terms to describe various learning deficits).
132. Johnson, supra note 46, at 183.
133. Nancy Engen-Wedin and Terence Collins, Composition, Word Processing, and the Learning Disabled College Writer: An Annotated Bibliography 5 (Minneapolis, 1986). Marc Grinker of Chicago-Kent has developed a law student-oriented, interactive computer program offering lessons and exercises in grammar and style. For some learning disabled students, the online Legal Writing Teaching Assistant will be a useful option. In addition, voice-activated computer programs are a rapidly developing technology that will soon play an important role in accommodating disabled students.
134. See Kristin R. Woolever, Untangling the Law 91 (Belmont, Cal., 1987).
135. A useful variation on the IRAC method is the paradigm developed by Richard K. Neumann, Jr., in Legal Reasoning and Legal Writing, 2d ed., 84 (Boston, 1994). This model calls for a conclusion, rule, rule proof, and application. The text stresses the flexibility of the scheme, noting that rule proof can be very narrow or fully fleshed out, depending on the need to cite and explain authority, the need to discuss policy considerations, and the need to consider counteranalyses. One danger in using an analytical paradigm is that students will succumb to the temptation to develop the discussion on a case-by-case basis rather than synthesizing principles from many sources. Weak writers must not be permitted to use the paradigm to avoid the very difficult task of synthesis.
136. In assessing differences among basic writers, LD writers, and normal writers, the frequency of spelling and punctuation errors identified the LD writers. Gregg, supra note 3, at 335.
137. If this is the case, and the student is obviously stringing together simplistic sentences, sentence-combining exercises can be of use.
138. See Shaughnessy, supra note 3, at 16-43 (useful discussion of teaching punctuation to basic writers). The absolute number of students who enter law school with severe learning disabilities affecting their writing skills is unlikely to be staggering, but it will
139. Punctuation admits of some variation, and some errors are more reader-unfriendly than others. For example, if the student suffers from a variety of comma problems, limited tutorial time might be better spent on punctuating the more troublesome appositives and other "internal" set-offs than on punctuating introductory phrases or independent clauses joined by conjunctions, unless they pose a serious risk of misreading.
140. See generally Johnson, supra note 46 (providing useful discussion of strategies for teaching spelling to learning disabled adults).
141. See, e.g.
142. See, e.g. Id.
143. Shaughnessy, supra note 3, at 160-86.