October 21, 2021
October 2021: Marissa Ditowsky
Marissa Ditowsky (she/her)
Diversity Chair, ACS District of Columbia Lawyer Chapter
The legal profession was not built with access and inclusion in mind. In fact, it was specifically designed to exclude. Our profession hangs onto elitist, classist, ableist, racist, and sexist requirements and notions of competency. Exclusion occurs at every step to become a lawyer, starting at K-12 education, continuing through the licensing process (including the Bar exam and discriminatory, overbroad character and fitness questions about mental health), and ending with employment in the profession. The latest American Bar Association disability statistics survey conducted in 2010 showed that only about 6.87% of respondents self-identified as disabled. According to the National Association for Law Placement, Inc.'s 2019 report on diversity in U.S. law firms, only about half of one percent of all lawyers in large United States law firms identified as having a disability. The pipeline is leaking. Every process is so much extra effort for disabled students and attorneys--so much additional fighting and advocacy. We are forced to be extraordinary to survive. We must focus on our work and academics while simultaneously advocating for our own humanity and access.
I am a disabled attorney with myotonic dystrophy, as well as several other disabilities and chronic conditions. I cannot guarantee that I would be here today without consistently advocating for myself, hearkening to the wisdom of disabled elders and others in the collective struggle for liberation, and support from other disabled students and allies seeking a common goal and equity. When I first got to law school, some of my accommodation requests were denied. I had to push my university to provide these accommodations. After drafting some strongly worded letters citing my legal rights and laying the foundation of my argument, they eventually provided all of my requested accommodations to me. However, it should not have been so difficult. When I took the Multistate Professional Responsibility Exam (MPRE), the National Conference of Bar Examiners (NCBE) denied my accommodation request for time and a half, although they did grant my request for a non-scantron answer sheet. I had received additional time on all exams in law school because of the extra time it takes to write, type, or dictate answers due to my disability, as well as the pain that can be incredibly distracting during exams. NCBE denied my request for these same accommodations despite evidence of this reasoning and previous receipt of these accommodations. I, somehow, managed to receive the score I needed on the MPRE. Others in my position have not been so lucky. The NCBE regularly and excessively denies accommodations to disabled students. Generally, when applying for accommodations for the Bar exam, state bars ask about what accommodation applicants have received on the MPRE. That can affect whether we receive accommodations, and if so, which accommodations we receive on the Bar exam.
When I took the Bar exam, I was so grateful that all of my accommodation requests were granted. That is not always to be expected, although it should be the norm. So many applicants must appeal accommodation decisions, and in some cases, they receive decisions past appeal deadlines. However, even with my accommodations, the Bar exam was grueling and inaccessible. I was exhausted, in pain, and experienced chronic migraines and gastrointestinal distress the entire summer I studied. This is known as a flare of chronic symptoms. While having time and a half during the exam was absolutely necessary for me to have sufficient time to type and dictate when in pain, it also made an already extremely lengthy exam even longer. For someone with chronic fatigue, and pain as well as symptoms that are exacerbated by fatigue and exhaustion, the test was extremely difficult to get through. Focusing and maintaining stamina was difficult, if not impossible for me. Many push back on critics of accommodations and argue that they are simply a way to "level the playing field." For me, no accommodation on such a test could possibly "level the playing field." The extra time allowed me to recoup some of the time lost focusing on my pain and spent dazed in my chronic fatigue, but such a lengthy exam is hugely inaccessible. That is what many do not understand about accommodations--even with accommodations, disabled students are often still at a disadvantage on traditional, timed exams. Again, I somehow managed to push through and pass on my first try. Others in my position were not able to excel while facing these unreasonable and discriminatory barriers established by our profession.
Now that I am an attorney, I am so blessed to work in an extremely accommodating workplace. Not only is my organization flexible, but they view my disability as an asset in my work and in building relationships with clients. However, many lawyers do not work in such welcoming spaces. There are many workplaces without formalized or widely publicized accommodation request policies, that are not familiar with disability or how to appropriately discuss disability, and that foster anxiety-inducing and toxic environments. I also experience access barriers outside of my office constantly. When court was held in person, the main entrance was inaccessible. I therefore had to use a separate accessible entrance. However, that entrance is a staff entrance, and anyone entering not on staff must be let in. I would often wait about twenty minutes in the cold before someone would even let me in to court. Further, events for attorneys often lack proper captioning, and I miss content due to my hearing loss. I regularly encounter misconceptions about the value disabled lawyers bring to the table. We are often pigeonholed in positions related to disability or accessibility--even disabled lawyers with no interest in that practice. Disability is often not even considered an aspect of diversity in hiring priorities, and not all firms even have affinity groups for disabled attorneys. Lastly, many workplaces do not even consider how disability intersects with other identities to further marginalization. We must do better--that includes law schools, career offices, law firms, non-profits, corporations, and other organizations. That is why I am a leader of the National Disabled Law Students Association (NDLSA), an organization with the mission of changing the nature of legal education and the profession to make it more inclusive and accessible for disabled students and lawyers.
October is National Disability Employment Awareness Month (NDEAM). Take this opportunity to educate yourself about how you can help to fix the leaky pipeline and why disabled lawyers, and their invaluable perspectives, are an asset to your workplace (NDLSA has several fantastic resources on these questions). Think about what systemic change you can help effect to make the profession less exclusionary and more attainable for all. Change policies at your workplace. Keep telework options in place as offices reopen. Help to advocate for diploma privilege. Donate to the Community Fund for Black Bar Applicants. Use your power as alumni and attorneys to assist current students at your alma mater experiencing access barriers. Listen to and learn from disabled people. We are in this fight together.