In 2022, 12 percent of students entering law school and approximately 19 percent of students across all years of law school self-reported having a disability. Both the Law School Admission Council (LSAC) Matriculant Survey and the Law School Survey of Student Engagement (LSSSE) found that law students with reported disabilities included those with mental health, developmental, or intellectual disabilities. Many of these types of developmental or intellectual disabilities are commonly referred to as “invisible disabilities” because they involve mental or neurological conditions that are often not externally visible to others. And sometimes, the “invisible” nature of these disabilities also means that a law student may not realize they have a disability prior to entering law school.
These types of invisible mental health or developmental disabilities are often referred to collectively as “neurodivergence.” Neurodivergence is a non-medical term that encompasses a variety of biological or physical changes that impact brain structure and function. While neurodivergence broadly includes conditions—both genetic and acquired—that make a person’s brain different, neurodiversity, on the other hand, refers to the more global diversity of individuals’ brain structures across society, much like biodiversity in the ecosystem. Conversely, “neurotypical” refers to a person whose brain functions “within societal standards and norms.”
As mentioned, we do not always know who is or is not neurodivergent—nor should we. A person’s decision to disclose or even discover their neurodivergence is a personal one. Some students may simply not know (though they may suspect) that they are neurodivergent for a variety of reasons, including physicians’ outdated biases about how certain developmental disabilities or conditions present, lack of knowledge regarding how these conditions manifest in women and minorities, the expense and availability of diagnosis, and the development of heavy masking skills from childhood that can make a disability even more “invisible.”
In the last few decades, new knowledge about the many developmental and mental conditions tied to neurodiversity, along with improvements to previously problematic diagnostic criteria, have led to an increase in adult diagnoses. These challenges led some children to be under- and misdiagnosed; as adults, however, they may now have more access to resources or support to overcome this hurdle. As a result, neurodivergent adults’ diagnoses continue to grow—like a domino effect. And because the law school population is an adult demographic, it is important for law schools to address the impact of this increase in late-diagnosed adult neurodivergence within their communities.
Legal education institutions have an obligation to support their (likely increasing) neurodivergent law student populations. Both federal and state laws require law schools to provide reasonable accommodations to students with disabilities to ensure a level playing field with their neurotypical and able-bodied peers. This typically occurs through applications for individual accommodations, either via school disability services offices for classroom settings or through bar examiner boards for standardized exams.
However, for undiagnosed neurodivergent law students, accommodations cannot be provided in the same way. Students who are undiagnosed cannot go through their campus disability office for accommodations. Furthermore, late- or underdiagnosed law students often lack the lifetime documentation that many boards of law examiners expect (and essentially require) to grant accommodations on the bar exam. Given these barriers, accommodation can and should be further supported by reasonable adaptation of the learning environment in a way that supports neurodivergent and neurotypical law students alike. One of the most beneficial ways to accomplish this would be to more purposefully integrate skills and experiential learning into the typical, content-heavy “podium” course.