Special Treatment for All Takers

As our esteemed president continues his journey of repentance and spiritual renewal, his lawyers and aides continue the far more essential task of making excuses. And, if there is anything that the American people swallow more easily than apple pie and apologies, it is excuses. We understand--he was lonely, his appetites got the better of him, the lawsuit was politically motivated, Ken Starr is Satan.

Forget cynicism, skittishness, veneration for the mechanism of impeachment or genuine forgiveness. The average American appreciates the president's laughable defense because, whether for wrongdoing or incompetence, the average American would be lost without his or her own recourse to often tenuous justifications, explanations and extenuations.

Many types of excuses have gone through distinct stages of popularity in recent memory. In the arena of malfeasance, for a while, childhood abuse was the excuse du jour. Then O.J. Simpson helped reinvigorate racial disadvantage as a form of pardon. Now, as the president struggles to conceal his criminal culpability behind the right to privacy, a new excuse for the common man's ineptitude has been ensconced in law.

On Monday, the U.S. Court of Appeals in New York ruled that Marilyn Bartlett, an aspiring attorney who had failed the state's bar exam on four occasions, was entitled to special accommodations during the exam. In the suit, Bartlett argued that her previous failures were due to a learning disability and that the New York Bar Association acted improperly when it denied her requests for extra time, permission to tape-record her essays and the right to mark her multiple choice answers in the test booklet rather than on that pesky answer sheet.

This case at first seems like no big deal. Ever since the passage of the Americans With Disabilities Act, more and more people have received special accommodations for standardized tests. Clearly, a genuine disability is not an disingenuous excuse. What is significant about this case, however, is that the successful plaintiff may not actually be disabled.

The Bar said it denied Bartlett's requests for special testing arrangements on the recommendation of an outside expert, who reported that she suffered from no identifiable disability. Her scores on a reading test were not high, but the expert felt they were well above the range of disability. (In fact, Bartlett reads better than 30 percent of the population.) Not surprisingly, for the trial Bartlett was able to hire her own expert to contradict the bar expert's diagnosis; this was enough for the court to rule in her favor.

Celebrating the verdict, disabilities rights activist Sid Wolinsky told the New York Times, "The most significant thing about the case...is the finding that these professional bodies should not be second-guessing the determinations of learning disabilities made by the applicants' own clinicians."

If you can hire a doctor who will say that you are "disabled," that may now be a sufficient basis on which to receive special treatment. Licensing boards like the bar and state medical associations are understandably concerned by the court's ruling. They fear that their ability to uphold professional standards through fair testing may be compromised. After all, learning disabilities are more difficult to pin down than physical disabilities. It is not always easy to determine whether an applicant learns differently yet is perfectly competent, or whether he or she simply can't cut it.

Before the Bartlett ruling, the New York Bar granted special testing accommodations to more than 80 percent of those who requested them. If the Bar's clinician had been out to deny the truly disabled their rights, he or she had not been doing a particularly good job. It seems more likely that the clinician was trying to weed out those seeking an excuse for low performance from those with legitimate claims. Now that that discretion will lie with people on the payroll of the applicant, you can be sure that the number of "necessary accommodations" will balloon.

The Bartlett case is just one more boost to the great American tradition of fudging. If at first you don't succeed, try to bend the rules. If you fail to meet a standard, either of morality or competency, there's always room to maneuver.

It remains unclear whether President Clinton's web of excuses will save his job. But it seems likely that Marilyn Bartlett's court victory will not be enough to her earn her a passing grade. In 1993, when her lawsuit was first filed, the Bar permitted her to take the exam with the accommodations she requested--on the condition that the results would be withheld until the court issued its judgment. Afforded extra time, provided with tape recorders and freed from that pesky answer sheet, Bartlett failed for the fifth consecutive time. Rest assured, she will try again.

Noah D. Oppenheim '00 is a social studies concentrator in Adams House. His column will appear on alternate Fridays.