her answers in her test booklet, rather than fill in a computer-graded answer sheet. Days one and three, however, remained under dispute. The Board had offered Perches what they termed “cumulative double time.” Perches would be allotted time-and-a-half to write, and would also be allowed half of the original testing time in scheduled breaks. Added together, the breaks and the allotted writing time comprised twice the time other students have to complete the test. Perches maintained, however, that such an offer was neither fair nor in keeping with the recommendations of her physicians. According to Perches, time-and-ahalf for writing is insufficient to account for her snail-like pace; further, she contended she needs to be able to take her own breaks in response to pain, rather than at arbitrarily set times. Finally, she also requested two days to complete the final day of the exam; the scheduled exam is six hours plus a lunch break, which meant \(as would receive twelve hours \(in “cumulaPerches maintains that her arthritis prevents her from writing so long in one day. On the witness stand, the position of the Board appeared to be founded less on the particulars of Perches’ case than on the Board’s sense of its own precedents. In his opening remarks, the Board’s lawyer, Christopher Johnsen, declared precedent the chief factor although Executive Director Martin later denied that in her testimony. Martin maintained that the letters submitted by Perches’ doctors an Austin rheumatologist, an El Paso orthopedic surgeon, and an occupational therapist from the Mayo Clinic specified neither the length nor the scheduling of Perches’ breaks. In explanation for the Board’s decision not to grant Perches the accommodations she and her doctors requested, Martin cited her concerns over maintaining the “validity, reliability and fairness” of the Bar exam. Referring to psychometric research, Martin testified that “accommodations greater than time and a half skew validity” in that “scores can no longer be presumed to be accurate indicators that the examinee possesses all the knowledge and attributes being tested.” Perches’ lawyer, Malcolm Greenstein, suggested that Martin and the Board did Perches a disservice by not investigating her case more specifically before offering limited accommodations. Greenstein introduced evidence that on an earlier standardized examination, for which Perches had double the two-hour time limit, she spent 216 minutes writing and 15 minutes resting. Greenstein maintained that such figures illustrate that Perches needs to take oneor two-minute breaks, and that devoting 25 percent of the testing time to scheduled long breaks, as proposed by the B.L.E., would not meet Perches’ actual needs. Greenstein also questioned why the B.L.E. never forwarded Perches’ file to a physician to get another opinion before making an offer of accommodation \(a THE POSITION OF THE BOARD APPEARED TO BE FOUNDED LESSON THE PARTICULARS OF PERCHES’ CASE THAN ON THE BOARD’S SENSE OF ITS OWN PRECEDENTS. Board letter in response to Perches’ initial application states that her request would be Martin, however, review by a physician is only the Board’s practice when it doubts the authenticity of an applicant’s disability, and the Board’s letter to Perches was not a promise of such a review. After Perches’ own testimony which included her showing Judge Phillips her deformed bones and surgical scars, and a demonstration of her writing process no one in the courtroom doubted Perches’ disability. \(The bailiff later approached Perches and commended her for giving the asked if a dictation process would solve the problem, but Greenstein argued that dictation is a skill which requires practice, and that Perches should not have to worry about an unfamiliar testing situation on top of trying to finish her preparations for the Bar. At the close of testimony, the Judge directed the Board to respond to Perches’ appeal before the court rendered its decision. Despite Martin’s protestations on the witness stand that Perches’ requests were unreasonable and unfeasible, the B.L.E. appeal decision granted Perches most of the accommodations she sought among other concessions, Perches became the first examinee to be allowed to take the third part of the exam over a two-day period. In response to the Board’s decision, Perches withdrew her lawsuit. Would Perches have prevailed on appeal without taking the B.L.E. to court? No one knows. But during her testimony, Rachel Martin responded to Greenstein’ s query of whether the Board had ever made a mistake in deciding accommodations for disabled students by stating flatly, “Well, we’ve never been sued before.” Her clear implication was that in the absence of a lawsuit, the Board was incapable of error. Martin’s rigid hostility to any challenge of the process led Greenstein, following his withdrawal of the lawsuit, to make an unusual request of the Judge: “If the Court was onehalf as outraged as I was [by the testimony given], I would ask the Court to make a statement on the record, so that perhaps the State Board of Legal Examiners will make some change in the process, and that another applicant will not be subject to the same treatment in the future.” The B.L.E.’s counsel objected; the court declined to make such a statement. Sofia Perches had her first day in court now she will sit for the Bar exam. Get DownHome with The Texas Observer. Now you can read your favorite Observer features on The Texas Observer DownHome Page: Investigative Reporting, Molly Ivins, Jim Hightower, Political Intelligence, and all the rest. Also on our site is a list of progressive organizations on the web folks who share our progressive politics. the Editors http://texasobserver.org AUGUST 14, 1998 THE TEXAS OBSERVER 7
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