The Accommodation Process & High Stakes

Testing:

A Contextual & Legal A Contextual & Legal PerspectivePerspective

Jo Anne Simon, Esq.Jo Anne Simon, Esq.October 14, 2005October 14, 2005

Blind Men and the Elephant

Definition

Screening

Diagnostic Testing

Accommodation

Intervention

Connected but not unconnected

eligibility

DefinitionDiscrepancy

IQ yes, no, maybe

Cut Off

EQUITYMore Than TestsMore Than Tests

AssessmentMore Than TestsMore Than Tests

Despite efforts. . .

Dropout rates for students with LD higher than their peers (Kaufman, Kwon,Klein, & Chapman, 1999; Scalon & Mellard, 2002)

Acceptance to postsecondary institutions lower for population with LD (Vogel & Reeder, 1999)

Acceptance to professional schools lower for population with LD (Vogel & Reeder, 1999)

Income for population with LD lower than their peers (Vogel & Reeder, 1999)

Whole > Sum of its parts

Totality of the Evidence

Contextual/Legal Contextual/Legal

PerspectivePerspective

Problem

Tests often test the Tests often test the disability rather than disability rather than

the ability of the ability of individuals with individuals with

disabilitiesdisabilities

Validity

““cornerstone of legal cornerstone of legal compliance”compliance”

(Coleman, 2003)(Coleman, 2003)

Clinical Judgment

“ A learning disability is not measurable in the same way a blood disease can be measured in a serum test. By its very nature, diagnosing a learning disability requires clinical judgment”.

Sotomayor, 2001

REAL PROBLEMS Misunderstanding of what the term learning

disabilities means-pseudo LD EXPERTS and Lack of Experimental Research

Type One Error

Ignore what standardized measures document

Identify same accommodations for all individuals with disabilities

Type Two Error

Believe only standardized scoresIgnore historical documentation of the

disabilityBelieve the Bell Curve is next to or better than

godlinessDiscount the high correlation between

cognitive measures of ability and achievement

Empirical Research on Accommodations (Sierci, Li, & Scarpati ,2003)

– Reviewed literature – only 150 studies• Of the 150 studies only 46 pertained to testing

• Only 38 of the 150 involved experimental methodology

• Of the 150 studies, only one experimental study was done with the adult population (college)

Findings are nothing less

than criminal

Substantial LimitationsNot Utter Inability

“. ..stating that the ADA “addresses substantial limitation on major life activities, not utter inabilities”

Bragdon, 524 U.S. at 641.

Reframing LiteracyQuestioning our language

Color BlindnessColor Blindness

Reading with ears not Reading with ears not eyeseyes

Writing with voice or Writing with voice or computercomputer

Who is Protected?

A person with a physical or mental impairment that substantially limits one or more of the major life activities of such individual

"substantially limits"

significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to most people

1993-97

1993 --Plaintiff sues for failure to accommodate

June 1999 -- Supreme Court decides Sutton trilogy of cases re: “mitigating measures” and Bartlett is remanded for reconsideration

2000

Second Circuit issues its decision that a person can demonstrate a disability if the performance of a major life activity slow and/or other limited “conditions, manner, or duration” including side effects, are demonstrated.

Remands for narrow finding on evidence in Bartlett’s individual case

Defendant’s Argument…

Restricted in comparison to most people:– Scores more than 1 SD below mean– Ergo, below 16th% ile

Defendants' Argument . . .

• She can't have a disability if she got through college, graduate and law schools

• She learned German

• LSAT scores (slightly) above the mean

Plaintiff’s Argument…

Assessing whether one is restricted in condition, manner in which most people read requires consideration of information in addition to scores.

Most children have automatized the processes of reading, spelling, and writing.

– Research confirms that the key to efficient reading is automaticity, in other words, processing words quickly and without conscious attention.

– Plaintiff’s accomplishments by alternate routes are consistent with having a learning disability.

Challenges Presented by the Law

How does we measure substantial limitations??There are no truly appropriate measures of reading assessment for adults; no tests have been developed for this purpose because generally adults are not tested.

KEY Finding of the Court

the clinical observations of plaintiff's manner of reading were the most probative evidence of disability.

The Holding

On the totality of evidence . . . including plaintiff's psychometric test scores, . . . plaintiff proved that she is an individual with a disability under the ADA because she is substantially limited in the major life activity of reading when compared to most people.

The Holding…

When considering both the positive and negative effects of plaintiff's self-accommodations, plaintiff is substantially limited in the major life activity of reading . . . by her slow reading rate and by the fatigue caused by her inability to read with automaticity.

Why clinical judgment?

Why a judge? A judge cannot simply follow precedents, she is needed precisely because the law does not tell her exactly what to do.Plato’s philosopher-ruler: one with the capacity to know what differences make a difference.

Trends

Narrowing of definition of disability

Reduction of remedies available

Increase of “State’s rights” decisions by the U.S. Supreme Court

Greater reliance on state legislation

Creative Responses

Speak Bostonian – Write Bostonian

Of course she was!

Self Advocacy

one last thought…

• “Be ashamed to die until you have won some victory for humanity.”

» Horace Mann