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Promoting Disability Accommodation
in Legal Education and Training:
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Preface
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This guidebook is the result of a study conducted by Reach in 2002-2003. Earlier Reach projects focusing on equity in legal education resulted in two manuals, called respectively A Framework for Action and Navigating Law School. Those volumes concentrated on law schools, university environments and bar admission programs. The earlier publications, along with the present guidebook, are intended for use by many groups: lawyers, law graduates and law students who have disabilities; law society, taw school, continuing legal education (CLE) and bar admission course managers and staff; law teachers and trainers; and providers of disability accommodation services and support.
The present guidebook assesses the extent and effectiveness of equity-based approaches in legal education, especially accommodation* policies and practices that are or ought to be promoted and made available for individuals with disabilities in all facets of education and training in the legal profession, including for clients of legal practitioners.
(*Accommodation may be defined as the adjustment of a rule, practice, condition, or requirement to take into account the specific needs of an individual or group. To some degree it involves treating individuals differently. Different treatment to adjust for a disability is legally required if the accommodation is needed to ensure that the individual has the opportunity to participate fully and equally.)
Law faculties, law/bar societies and others involved in providing legal education and training must ensure the provision of reasonable accommodation to promote equity for individuals who have disabilities. There is a similar legal duty with respect to serving clients. The legal duty to provide reasonable accommodation is governed by provincial, territorial, and federal human rights law, including the equality rights guaranteed for individuals with disabilities by Section 15 of the Canadian Charter of Rights and Freedoms. Judicial and tribunal interpretations of the aforementioned laws have reinforced accommodation rights for everyone in Canada who has a disability. The combined effect of this legislation and the judicial and tribunal rulings has been taken into account in professional practice rules issued for lawyers by their provincial and territorial law or bar societies.
The duty to accommodate in employment, educational and other fields is balanced by the notion that the employer, legal education institution, professional association or other relevant entity is not obligated to provide accommodations that cause "undue" hardship for the employer or entity. The legal obligation to accommodate participants in legal training, employees and prospective or current clients who have disabilities does not stop, however, when minor inconveniences or "hardships" are encountered. There is a legal obligation to have policies, standards and practices that do not create artificial barriers unrelated to the true essentials of the specific educational purposes or employment under consideration. Another basic obligation is to consider all reasonable options for providing accommodation, rather than assuming that it might be too difficult or costly.
In deciding whether alleged hardships are excessive or undue, a court or human rights tribunal might look at factors such as: the financial resources required to provide an accommodation; the degree and kinds of effects that accommodations will have on employees; the impact of accommodations on the overall firm, department, educational program or other relevant entity; and unusual risks, if any, that accommodations may pose for others, such as other employees or clients (including those who have a disability).
We make a common sense assumption that reasonable accommodations in educational environments (which generally have few inherent physical dangers) would almost always be legally required. Provable undue hardship for a law school or a law/bar society may be rare. One potential exception is a situation in which massive renovations are needed to make an old building more accessible, or when funds needed are not reasonably available from any source. A situation could also theoretically arise in which providing to one student every additional academic support that he/she asks for (when equally reasonable and less resource-intensive alternate accommodations are available) would effectively deny resources needed to give fair accommodation to many other students.
In educational and other fields, accommodations help to give capable people who may not fit a particular "norm" a fair chance to succeed personally and professionally. Although educators and others need to offer accommodations based on systematic application of good practices, each person who has a disability usually requires an individualized approach. The severity of a disability varies among individuals and each person responds to and succeeds differently with the "same" disability. Every situation is unique and must be assessed individually.
Reasonable accommodations do not compromise academic integrity or standards because assessed proof of knowledge and of relevant skills is expected of all participants. Rather, accommodation can ensure that persons with special needs are given a fair opportunity to achieve the applicable professional and academic standards. Accommodation facilitates flexibility and recognizes that individuals may achieve equally good results in different ways.
One facet of legal education and training that this guidebook aims to promote is the preparation of lawyers to avoid discrimination against individuals who are not legally trained, by offering appropriate accommodation for employees and clients who have disabilities. Such desirable and ethical conduct by lawyers is demanded by human rights law, particularly as interpreted by the Supreme Court of Canada (see Annex C) and as mandated by Rules of Professional Conduct.
Much of the information in this guidebook was obtained through questionnaires distributed to legal education institutions (at all levels and stages of training and practice) and to law students and law graduates who have disabilities. We also undertook focus group discussions and individual interviews with people from each of these target groups. In addition, we explored the websites of every law school and law society in Canada and many other websites of organizations of Canada and elsewhere (particularly in the USA) that are involved with legal education. Online data and publications from a broader spectrum were also examined by the Editor and by other project researchers.
Those who participated directly in the project surveys and discussions were asked to highlight useful accommodation efforts that they had encountered and to share personal survival tips. Participants provided reality-based observations on the quality of equity and accommodation initiatives. While this guidebook looks at "best practices" that others can and will learn from, we also mention a few "worst practices" that our survey partners told us about. These stories and bits of advice might alert law students, law teachers, lawyers and lawyers’ organizations, disability services providers and others about better approaches to take concerning access and accommodations, and about hurdles that can be prevented, worked around or overcome.
Many of our study participants and respondents were representative of people with mobility, physical, sensory and learning disabilities, and with other invisible disabling conditions such as chronic pain. Survey respondents identified many areas needing improvement in legal education and training.
A central goal of the Reach study and of this guidebook has been to provide data and insights that are useful in real life for legally educated individuals and or clients who have disabilities. We trust that the information will be useful in professional work for those who strive to promote equitable access to justice and to legal education.
In the experience of our survey respondents, legal education organizations and institutions in general have a long way to go before approaching full attainment of the recommendations expressed by David Lepofsky to Law Deans a dozen years ago. Most legal education bodies and institutions have made progress - in some cases very laudable progress - and some individual legal education sites and personnel (administrators, staff and law teachers) have been highly praised. We have however heard as well about instances of backsliding, discriminatory attitudes, erosion of previous gains made (often through change of personnel and loss of institutional memory) and failures to make serious efforts to accommodate. We intend this guidebook to play a role in influencing legal educators to comply with human rights law and to borrow "best practices" that we have noted re education equity and disability accommodation.
An objective of this book is to encourage and assist law schools, law societies, bar admission and CLE programs to strive for enhanced accommodations in legal education and to encourage better access to the legal profession for clients who have disabilities. Among the people who did research for this guidebook there are law students, law graduates, lawyers, health professionals and others with diverse disabilities who have successfully dealt with potential career hurdles linked to disability. We intend that this guidebook will help other individuals who have disabilities to become better equipped to self-advocate. We hope that the collegial tips offered in Chapter 2, the good practices described in other chapters, and the recommendations offered by David Lepofksy and by members of our writing team will prove useful for individuals whose duties and interests cause them to consult this publication.
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