The ADA amendments act accommodating students and test takers with learning disabilities

A 1 The ADA Amendments Act: Accommodating Students and Test Takers with Learning Disabilities February 27, 2013 Disability Consortium Meeting Presented by: Rachel Weisberg Staff Attorn

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The ADA Amendments Act:

Accommodating Students and Test Takers with Learning Disabilities

February 27, 2013

Disability Consortium Meeting

Presented by:

Rachel Weisberg

Staff Attorney, Equip for Equality, Illinois ADA Project Manager

Session Outline

Landscape for Individuals with Learning Disabilities

Disabilities in Post-Secondary Education

Disabilities in Standardized Testing

The ADA & ADA

Amendments Act

ADA

• Courts 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).

EEOC Regulations

“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

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Appendix to EEOC

Regulations

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Accommodating College and Graduate

School Students with Learning

Disabilities

Non-Discrimination

Requirements

Title II v Title III v Rehabilitation Act

• Public colleges covered by Title II of the ADA

• Private colleges covered by Title III of the ADA

• Colleges that receive federal funds covered by the Rehabilitation Act

Discrimination Defined

• Slightly 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

Accommodations

• Reasonable modifications may include:

• Extended time for tests

• Alternative sites (distraction-free testing)

• Alternative methods for testing

• Assistive technology (talking book)

• Note-takers

• Readers

• Re-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)

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Reasonable

Accommodations

• Connect with disability services office

• Follow University procedures for requesting

accommodation

• Do not wait until to request an accommodation

• Make requests for accommodations in writing

• Keep records of all requests

• Take advantage of University resources available for all students (tutoring, peer editing, etc.)

Best Practices

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TESTING ACCOMMODATIONS

ADA Requirements

for Testing Entities

•ADA 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 individual’s aptitude or achievement level … rather than reflecting the individual’s [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 & Appendix

•Recognizes extended time as a potential modification

•Requires testing agencies to give “considerable weight” to an individual’s 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 time

• Testing in a separate room

• Use of a computer

• Reader

• Scribe

• Breaks between sections

• Additional rest time

• Alternate non-Scantron answer sheet

Exam 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 DOJ’s complaint

•Individual 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 LSAC’s practice of “flagging” test

scores

What is flagging?

•Annotating scores of test-takers who receive extended time

•Advising 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 conditions”

•LSAC does not average these scores with all other scores

•LSAC 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

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QUESTIONS?

The ADA Amendments Act:

Accommodating Students and Test Takers with Learning Disabilities