The ADA Amendments Act: Accommodating Students and Test Takers with Learning Disabilities
February 27, 2013Disability Consortium Meeting
Presented by: Rachel WeisbergStaff Attorney, Equip for Equality, Illinois ADA Project Manager
*Session OutlineADA Amendments Act: Changing the Landscape for Individuals with Learning Disabilities Accommodating Students with Learning Disabilities in Post-Secondary Education Accommodating Test Takers with Disabilities in Standardized Testing
The ADA & ADA Amendments Act
ADACourts narrowly interpreted the definition of disability. Individuals with learning disabilities often not covered.ADA Amendments Act Expanded protection for individuals with learning disabilities.Same definition of actual disability: Impairment that substantially limits a major life activity. Definition of disability shall be construed in favor of broad coverage to the maximum extent permitted by the terms of this Act. 42 U.S.C. 12102(4)(A).
In determining whether an individual has a disability . . ., the focus is on how a major life activity is substantially limited, and not on what outcomes an individual can achieve. For example, someone with a learning disability may achieve a high level of academic success, but may nevertheless be substantially limited in the major life activity of learning because of the additional time or effort he or she must spend to read, write, or learn compared to most people in the general population.
29 C.F.R. 1630.2(j)(4)(iii)
Individuals diagnosed with . . . learning disabilities will typically be substantially limited in performing activities such as learning, reading, and thinking when compared to most people in the general population, particularly when the ameliorative effects of mitigating measures, including therapies, learned behavioral or adaptive neurological modifications . . . studying longer, or receiving more time to take a test, are disregarded as required under the ADA Amendments Act.
29 C.F.R. 1630.2(j)(1)(v) Appendix A*Appendix to EEOC Regulations
*Accommodating College and Graduate School Students with Learning Disabilities
*Non-Discrimination RequirementsTitle II v. Title III v. Rehabilitation ActPublic colleges covered by Title II of the ADAPrivate colleges covered by Title III of the ADAColleges that receive federal funds covered by the Rehabilitation Act Discrimination DefinedSlightly different requirements, but generally, prohibit discrimination against individuals with learning disabilities. Discrimination includes failing to make reasonable modifications or accommodations in policies, practices, or procedures.
*Reasonable AccommodationsReasonable modifications may include:Extended time for testsAlternative sites (distraction-free testing)Alternative methods for testingAssistive technology (talking book)Note-takersReadersRe-take tests in certain circumstances.Peters v. University of Cincinnati College of Medicine, 2010 WL 3878601 (S.D. Ohio, Sept. 6, 2012)
Reasonable modifications may not include:Lowered criteria for admission. Gent v. Radford Univ., 976 F. Supp. 391, 393 (W.D. Va. 1997)Requests to lower academic standards or required GPA. Betts v. Rector and Visitors of University of Virginia, 198 F. Supp. 2d 787 (W.D. Va. 2002) (waiving of GPA requirement was not reasonable)Requests to modify curriculum. Guckenberger v. Boston Univ., 8 F. Supp. 2d 82 (D. Mass. 1998) (waiver of foreign language requirement was not reasonable)
*Connect with disability services officeFollow University procedures for requesting accommodationDo not wait until to request an accommodationMake requests for accommodations in writing Keep records of all requestsTake advantage of University resources available for all students (tutoring, peer editing, etc.)
* TESTING ACCOMMODATIONS
*ADA Requirements for Testing EntitiesADA has a section specific to requirements for testing entities. 42 U.S.C. 12189. Examinations related to applications, licensing, certification, or credentialing must be offered in a place and manner accessible to persons with disabilities. 42 U.S.C. 12189. Examination must accurately reflect the individuals aptitude or achievement level rather than reflecting the individuals [impairment]. 28 C.F.R. 36.309.Must provide auxiliary aids, unless they would result in a fundamental alteration or undue burden. 28 C.F.R. 36.309.
*DOJ Regulations & AppendixRecognizes extended time as a potential modification. Requires testing agencies to give considerable weight to an individuals past modifications and accommodations.Reports from experts personally familiar with the candidate should take precedence over those from reviewers for testing agencies who have never personally met the candidate. Testing agencies should accept documentation from a qualified professional and provide the supported accommodations. Testing entities may only seek reasonable documentation limited to the need for the accommodation requested. 28 C.F.R. 36.309(b)(2); 28 C.F.R. 36 Appendix A .
*Extended timeTesting in a separate roomUse of a computerReaderScribeBreaks between sectionsAdditional rest time Alternate non-Scantron answer sheetExam Modifications
*DOJ Action Against LSAC
The Department of Fair Employment and Housing v. LSAC Inc. 12-cv-1830 (N.D. Cal.)DOJ intervened in a lawsuit filed in California. LSAC engages in widespread and systemic deficiencies in the way it processes requests by people with disabilities for testing accommodations. LSAC fails to provide testing accommodations where needed to best ensure that those test takers can demonstrate their aptitude and achievement level rather than their disability. Identified claims of individuals with various learning disabilities.
*Example of one individual identified in DOJs complaintIndividual diagnosed with dyslexia at age seven. Evaluated on four different occasions by qualified professionals. Long history of testing accommodations, including extended time on tests. Requested testing accommodations for the June and October 2011 administration of the LSAT, including extended time.Submitted a full neuropsychological evaluation and proof that he received extended time on multiple AP exams, multiple administrations of the SAT, as well as throughout elementary school, high school and college.
DOJ Action Against LSAC
*LSAC denied his request for extended time in full without any explanation. When the applicant requested an explanation of the denial, LSAC disputed the accuracy of his well-documented and consistent diagnosis, as well as his long history of testing accommodations. Requested reconsideration, but LSAC continued to deny request.
Note: There are a handful of other lawsuits pending against LSAC with similar claims.
DOJ Action Against LSAC
*DOJ also challenges LSACs practice of flagging test scores
What is flagging? Annotating scores of test-takers who receive extended timeAdvising law schools that these scores should be interpreted with great sensitivity and flexibility Advises law schools to carefully evaluate LSAT scores earned under accommodated or nonstandard conditionsLSAC does not average these scores with all other scoresLSAC does not provide a percentile rank for these scores
DOJ: Flagging Scores
*Why is flagging unlawful?Uses a method of administration that has the effect of discriminating on the basis of disability; Affords unequal, separate or different opportunities; Discourages people with disabilities from taking the LSAT or requesting testing accommodations; and Interferes with the right of applicants with disabilities to have the LSAT administered in an accessible manner and retaliates against individuals who assert rights under ADA. Note: Flagging recently discontinued for ACT, SAT, GMAT.
DOJ: Flagging Scores
*QUESTIONS?The ADA Amendments Act: Accommodating Students and Test Takers with Learning Disabilities
**The Americans with Disabilities Act of 1990 (ADA) makes it unlawful to discriminate against a qualified individual with a disability in all employment practices, including recruitment, hiring, firing, training, job assignments, promotions, pay Barriers can be attitudinal, architectural, communicative, or transportational in nature.(continued on next slide)
*The Americans with Disabilities Act of 1990 (ADA) makes it unlawful to discriminate against a qualified individual with a disability in all employment practices, including recruitment, hiring, firing, training, job assignments, promotions, pay Barriers can be attitudinal, architectural, communicative, or transportational in nature.(continued on next slide)
*Communicating with people with disabilities is similar to interacting with anyone you have just met, sometimes you arent sure you are being understood or if you understood the other person. The best thing you can do is to try every way you can think of to get your message across-- without talking down to them. Some people may not have a visible disability, but may need your help. Being sensitive doesnt mean you have to walk on eggs with people with a disability. You dont have to worry about using phrases like, Do you see what I mean to a person who is blind. You dont have to pretend the disability isnt there. Generally, showing respect and consideration to the person goes a long way. People with disabilities dont need to be rescued- they just want to be able to work, get information, etc.
All your efforts will be appreciated.