Law Students with Disabilities and Advocates

Reasonable Accommodations and Law School Admissions Testing: the Stakes are High and So is the Anxiety

Frequently Asked Questions from Students [1]

Despite known limitations in the content and construct validity of many high stakes tests, particularly admissions tests, the practice of testing is becoming more prevalent in American education, not less. This discussion deals with admissions and licensing or credentialing tests, such as the Law School Admissions Test (LSAT). Students with disabilities about to take these tests have a number of questions.

Q. What are testing agencies required to do to accommodate a test-taker’s disability?

A. Private providers of examinations related to postsecondary education (such as the LSAT) are covered by Title III of the Americans with Disabilities Act (ADA). They are required to offer such examinations ” in a place and manner accessible to persons with disabilities or offer alternative accessible arrangements for such individuals”. (28 C.F.R. ¡ì 36.309)

For a test-taker with sensory, manual or speech impairments, the test provider must ensure that the examination is selected and administered “so as to best ensure that” the examination results accurately reflect the individual’s aptititude or achievement level or whatever other factor the examination purports to measure, rather than reflecting the [disability].
If a test is administered specifically for students with sensory, manual or speech impairments, it must be offered at equally convenient locations, as often, and in as timely a manner as other examinations.
Examinations must be offered in facilities that are accessible to individuals with disabilities or alternative accessible arrangements must be made.
Required modifications to an examination may include extra time or changes in the manner in which the test is given.
The test-provider must provide appropriate auxiliary aids and services for test-takers with sensory, manual, or speaking impairments, unless doing so would fundamentally alter the skills or knowledge the examination is intended to test or would result in an undue burden.

Q. I understand that if I receive extra time on the LSAT, my score will be “flagged”. What does that mean?

A. According to the Law School Admissions Council (LSAC), which administers the LSAT

If you receive additional test time as an accommodation for your condition, LSAC will send a statement with your Credential Assembly Service (CAS) or LSAT Law School Reports advising that your score(s) should be interpreted with great sensitivity and flexibility.
Scores earned with additional test time are reported individually and will not be averaged with standard-time scores or other nonstandard-time scores.
Percentile ranks of nonstandard-time scores are not available and will not be reported.
All information related to your request for accommodations will remain confidential unless you authorize its release. If you want this information to be sent with your law school reports, you must complete and submit the Authorization to Release Information Form.

Whether to authorize release of information about your accommodations is a difficult question. Without information about what the accommodations were, the school receiving the “flagged” score may imagine the worst. However, authorizing the release of information means ALL the information goes to the school, including any back-and-forth discussions or appeals between the student and the LSAC, which may create false impressions. Applicants need not disclose a disability in the law school application process; in fact, schools are prohibited from asking for this information. Nevertheless, some students believe that disclosure would be in their best interests. Before signing an authorization giving the LSAC the right to disclose one’s entire disability history vis a vis the LSAC, one would be wise to consider framing one’s disclosure of sensitive information in one’s own way. Many students do so through their personal statements, describing the nature of their disability and what effect it may have had on their academic history or personal characteristics, such as developing perserverence and senstivity to the plight of others.

Q. I was just denied accommodations by the LSAT. I know someone who received accommodation on the LSAT 6 years ago. His disability is not nearly as serious as mine. What happened?

A. The standardized testing industry has advanced rationales such as concerns that too many students without disabilities were seeking a competitive edge and were savvy enough to see the “right” doctors and psychologists. While the possibility of charlatanism exists in every field, no testing organization has yet produced evidence that this practice either exists or is sufficiently wide-spread so as to justify the increasingly stringent scrutiny being applied. Among these changes are heightened requirements for demonstrating a disability in a manner that requires demonstration of typicality, early diagnosis and formality of interventions and accommodations, none of which are actually required by law. The standardized testing industry actively lobbied against the amendments to the ADA.

Three major factors or pressures appear to have given rise to the current condition:

(a) The generally narrow interpretation of the ADA by the federal courts throughout the country;

(b) Increasingly intense pressure by the graduate admissions and licensing level testing organizations for the two college admissions tests – the SAT and ACT – to cut down on the number and type of accommodations granted (thus reducing the amount of evidence of accommodation history when the student later applies for a graduate program); and

(c) The agreement first by the College Board, and then the ACT to cease “flagging” the test scores of those receiving accommodations.

Q. How do I find out what the rules are?

A. Every testing organization has very specific guidelines and requirements posted to their web sites. They are extensive. The LSAC’s requirements are at http://www.lsat.com/LSAT/accommodated-testing.asp. The LSAC requires certification from a qualified/licensed “Evaluator”, with additional Evaluation Reports for each of several types of disabilities (cognitive, vision, physical, and psychological). The evaluator must provide a diagnosis, an explanation of prior accommodations or, if no prior accommodations were used, an explanation of why accommodations were not needed previously but are needed for the LSAT, and recommendations for needed accommodations. Additional required documentation includes: score reports for past standardized testing and verifications from past standardized test providers, full diagnostic reports, aptitude and achievement testing, and psychological reports.

The deadline for requesting LSAT accommodations is the same as the deadline for registering for the test. While this means you do not have to register early in order to request accommodations, it also means that you will not know whether your accommodations are granted until it is too late to withdraw your registration. It also means that, if your accommodations are denied, you will not have time to request reconsideration or provide supplemental information prior to the test date. Therefore, it is important to start the process as early as possible.

Q. I’ve heard that the law was changed recently. What does this mean for me?

A. The ADA’s definition of “disability” has been changed as of January 1, 2009 to accomplish several things. In the ADA Amendments Act (ADAAA) of 2008, Congress:

Specifically rejected four U.S. Supreme Court cases that narrowed the definition of who has a disability by imposing difficult standards for protection

Expanded the illustrative list of major life activities to include reading, thinking, concentrating and communicating and to include bodily systems, such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. Learning is a major life activity under both the old and the new definitions of disability.

Eliminated the U.S. Supreme Court’s requirement that the ameliorative effects of “mitigating measures”, such as medication, prosthetic devices, or learned compensatory methods, must be considered in assessing whether one has a disability (except for ordinary eyeglasses or contact lenses)

Specifically provided rules of construction, noting in particular that the ADAAA should be applied in favor of broad coverage of individuals.

In colloquy on the floor of the House of Representatives where the final bill was passed, Congress made clear that the ADAAA:

Restores the proper focus on whether discrimination occurred, rather than on whether or not an individual’s impairment qualifies as a disability. 2 Cong. Rec, Sept. 17, 2008 at H8288.
Reduces the depth of analysis related to the severity of the limitation of the impairment. Id.
Rejects the assumption that an individual who has performed well academically cannot be substantially limited in activities such as learning, reading, writing, thinking or speaking. Specifically, it rejected the holdings that academic success is inconsistent with the finding that an individual is substantially limited in such a major life activity and rejected the findings of Price v National Board of Medical Examiners, Gonzalez v. National Board of Medical Examiners, and Wong v Regents of University of California. Id. at H. 8291
Reestablished coverage for individuals with learning disabilities by ensuring that the definition of the above abilities is broadly construed and does not consider the use of mitigating measures or the ability to “self-accommodate”. Id.
Confirmed that it supported the holding in Bartlett v. NYS Board of Law Examiners and stated that an individual should not be penalized when seeking protection under the ADA Id

simply because he or she managed their own adaptive strategies or received informal or undocumented accommodations that have the effect of lessening the deleterious impacts of their disability.

**Q. Did congress really mean to cover people who are talented and gifted and have a disability?**

A. Yes. On the floor of the House, U.S. Representative Courtney stated:

Unfortunately, the ADA has been misinterpreted by the courts resulting in a narrow view of those eligible to receive certain reasonable accommodations including individuals with learning disabilities. Historically, certain individuals with learning disabilities seeking accommodations in higher education “including high stakes exams” have seen their access to testing accommodations severely undercut by testing companies not willing to consider and support that learning disabilities are neurologically based, lifelong disabilities that may exist in students with high academic achievement because the individual has been able to cope and mitigate the negative impact while simultaneously being substantially limited in one or more major life activities.

Too many individuals with documented learning disabilities, including dyslexia, are denied access to easily administered and often low-cost accommodations that would make the critical difference in allowing them to demonstrate their knowledge. These amendments to the ADA do not provide any special treatment, but rather, ensure that each individual with a learning disability has every opportunity to apply for and receive a reasonable accommodation so he/she can move forward in his/her chosen educational and career paths.

This bill continues to reinforce what we stated in our bipartisan committee report, that the determination of whether an impairment substantially limits a major life activity is to be made on an individualized basis. There should be no attempt to discriminate against a class of individuals based on any one disability.

For example, people with dyslexia are diagnosed based on an unexpected difficulty in reading. This requires a careful analysis of the method and manner in which this impairment substantially limits an individual’s ability to read, which may mean a difference in the duration, condition or manner of reading “for example, taking more time” but may not result in a less capable reader. Id. at H. 8296.

Q. What are some common mistakes that high schools and colleges make?

A. Many schools and colleges do not realize that their internal accommodation practices are perceived by the testing organizations as suspect. They do not provide all the information that the testing organizations request often because they don’t maintain such detailed files. They often conduct their provision of “special educational services” and accommodations on a fairly informal basis.

Schools try to minimize the comprehensiveness of assessments conducted because it is expensive. The lack of comprehensive assessment doesn’t mean the student does not have a disability, but that the schools don’t have the information the testing organizations want. And many of the testing organizations have been asking for the moon and the sky to demonstrate disability, when all they are entitled to is a reasonable report of the nature and extent of disability.

Q. What are common mistakes that the testing organizations make?

A. In an effort to weed out questionable requests, testing organizations focus too much on test scores, without acknowledging or weighing the limitations of the diagnostic tests being used. Just as the SAT and ACT have their limitations and cannot be used by colleges as the sole determiner for admission, so too, all psychological and achievement tests used in assessing learning disabilities and ADHD have limitations. Substantial limitation may be demonstrated in many ways and indeed, the revisions to the ADA contemplate this.

An outgrowth of the over-reliance on psychoeducational or neuro-psychological testing scores as sole indicators of limitation is the tendency to treat all disabilities as if they were learning disabilities. This has occurred where the student doesn’t have a cognitive disability at all, but a sensory disorder (hearing or visual disability). A testing organization may nevertheless demand results of cognitive evaluation in order to demonstrate the student’s limitations. This is troubling for many reasons, including the fact that the nature of the disability may not be demonstrated by cognitive testing and the fact that students with these types of disabilities were not part of the tests’ normative sample. Thus, the results of such testing will require even greater skill in interpreting whether they are clinically meaningful.

Another error is in assuming that all learning disabilities are the same. Testing organizations often fail to acknowledge that students with non-verbal learning disabilities (LD-NOS) will not have the same pattern of scores as students with more typical dyslexia.

Still another problem is the assumption that attaining good grades means one does not have a disability. Grades, as we know, can be based on many factors. The ADA Amendments Act addressed these problems by revising the statute to reject cases which relied on these types of assumptions.

Q. What are some ways to demonstrate disability that are not strictly quantifiable?

A. Think of the definition of disability in the current regulations under the ADA: a substantial limitation is a significant restriction in the condition, manner or duration in which one performs a major life activity. . .

Until new regulations are promulgated under the ADAAA, we won’t know precisely what the guidance will be on defining “substantially limits”. However, there has been renewed focus on the condition, manner and duration on the part of Congress and a directive to fix the problem inherent in the regulatory language that defined a substantial limitation as “significantly restricting”. Substantial limitation can be demonstrated through the following:

Behavioral/clinical observations: How many times do you have to re-read something to comprehend? Do you need to use your finger to keep your place? Do you subvocalize? Do you lose your place easily? Do you need absolute quiet? What kinds of errors do you make? Do you confuse words that look alike or sound alike? Do you spell okay on a spelling test but horribly when writing spontaneously? Do you not recognize words that you have seen 100 times? Do you have trouble finding the right words? Do you recognize letters and words automatically, the way most people do? (Most children are automatic readers before third grade). Do you do better with some types of question forms than others? Better with essays than multiple choice? Vice versa?
Compensatory strategies: What strategies do you use to help deal with the limitations of the disability? How did you get good grades? Did you stay after school and have the teacher explain verbally what the lesson was about? Did the teacher give you extra time after school to finish quizzes? Do you rely on structure and modeling more than other students your age? Outcomes are NOT determinative in the law. How those outcomes were achieved can be.
Accommodations: formal or informal: Accommodations give you access to something by making an end-run around the problem. The ADA and Section 504 provide access to the competition that is life. Don’t let anyone tell you that a student who is achieving can’t be disabled because she has achieved good grades. After all, Casey Martin could golf up a storm. Casey Martin could walk. That didn’t stop anyone from believing that he had a disability.

So: Does the school provide extended testing time? Use of a computer for writing? A quiet room? At home, do you listen to books on CD? Do you read the first sentence and the last sentence, then guess at the multiple choice question, thus avoiding a lot of reading? Do you do better in classes where there is less reading (a good strategy for getting through college!)? Do you opt for the take home project or do projects for extra credit? Do you study with friends who short-circuit the need to read all the material yourself? Do you learn better interactively? Do you read better if you have more time? See outcome discussion above.

Avoidance of the major life activity: Do you find any way you can to avoid reading? Help from friends, listen to audio tapes or CD’s, watch the movie, the “cliff notes” approach? Have you developed a great memory for what you hear so that you don’t need to read as much? Can you follow the plot in a movie? Does you avoid e-mail/texting?
Level of Intervention needed to get “good” grades: Do you need tutoring? How much? For what? Speech and language support? How long do you take with your homework?

Q. I have experienced a lot of failure and struggle. I have a great deal of anxiety about taking tests. Sometimes it seems that the anxiety is worse than the learning disability. Should the school mention this problem?

A. A common response by testing organizations to comments about anxiety contained in psychoeducational reports is to deny the request on the basis that test anxiety is not a disability. This is arguably because test-taking is not a major life activity; although at least one court has found that it is. (Bartlett v. New York State Board of Law Examiners, 970 F.Supp.2d 1094 (S.D.N.Y. 1997) (opinion by Judge Sonia Sotomayor, who has since joined the U.S. Supreme Court), rev d 527 U.S. 1031 (1999)) However, anxiety runs the gamut from common “butterflies” to paralyzing anxiety and panic. Your anxiety may be a disability itself, or it may not. Generalized anxiety disorder, panic disorder, obsessive compulsive disorder can all be disabling, if not debilitating, on their own. But if, like many students with LD, you have a lot of anxiety as a result of your experience with LD, and it adversely impacts your life, including testing situations, there is no reason not to mention it for what it is. Remember, the ADA requires a case by case assessment of whether one has disability. If one consequence of your learning disability is anxiety, it is relevant and likely compounds the effects of the learning disorder. If one has two impairments that would not, on their own, constitute a disability, but together are substantially limiting, that person would be protected by the ADA. This is clearly spelled out in the law and clearly the intent of Congress. In such cases, each impairment should not be viewed in a vacuum because they interact and exacerbate each other. The ADA requires looking at the whole picture, not just pieces of it. Remember also, that “objective” means it is observable, not that it is statistical or psychometric in nature.

Q. Eeeeeek! What’s a prospective law student to do?

A. Your admission to law school is extremely important. Take a few deep breaths. Get ready to answer what appear to you to be silly questions. Remember patience is a virtue.

Recognize that testing organizations believe in testing: they will naturally have a preference for “evidence” that is consistent with their reason for being, even if that evidence is not readily available or even possible. However, they will often listen to reason and when shown how the disability affects a student’s performance of major life activities, they will often provide the necessary accommodations.

Recognize that psychologists and doctors are not trained in the law or in articulating clinical evidence in the same words that the law uses. They use words differently. They are often highly trained and cannot fathom why anyone would question their assessment. They too, need to recognize that not everyone will read their reports with a trained eye. Share with them the legal terms attached and the non-quantifiable ways to demonstrate disability above. This should stimulate their thinking and help them articulate their recommendations in ways that resonate more with the testing organizations.

Recognize that the ADA is different from the special education law (Individuals with Disabilities Education Act). The IDEA is a federal funding statute that ties public school funding to requirements that schools provide special education and related services for students with disabilities as needed to ensure the students can benefit from free appropriate public education. The ADA, on the other hand, is designed to combat discrimination against individuals with disabilities. Discrimination under the ADA includes exclusion, different treatment, denial of reasonable modifications to policies and procedures, failure to provide auxiliary aids and services needed to achieve effective communication, and failure to incorporate physical accessibility in facilities.

The definitions of disability under the ADA and IDEA are different and the requirements for reasonable accommodation/modification are different. The IDEA provides 13 categories of covered disabilities, while the ADA covers anyone with a physical or mental impairment that substantially limits a major life activity. Services under the IDEA are determined through the Individualized Education Plan, which is negotiated between the school and the student’s parents. The school must provide whatever services or changes are necessary to achieve an appropriate education. Reasonable accommodations/ modifications under the ADA are limited to those that are “reasonable”, and that do not constitute a fundamental alteration or undue burden.

Appendix A – Important legal terms

Who is Protected by the ADA, as amended?

Qualified individuals with disabilities of all ages

Who has a disability?

an individual who:

has a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
has a record of such an impairment; or
is regarded as having such an impairment.

Major life activities:

ADAAA:

(A) IN GENERAL: For purposes of paragraph (1), major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

(B) MAJOR BODILY FUNCTIONS: For purposes of paragraph (1), a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

ADAAA RULES OF CONSTRUCTION REGARDING THE DEFINITION OF DISABILITY.

The definition of disability in paragraph (1) shall be construed in accordance with the following:

(A) The definition of disability in this Act shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act.

(B) The term “substantially limits” shall be interpreted consistently with the findings and purposes of the ADA Amendments Act of 2008.

(C) An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.

(D) An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

(E)(i) The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as:

(I) medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants

or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies;

II) use of assistive technology;

III) reasonable accommodations or auxiliary aids or services; or

IV) learned behavioral or adaptive neurological modifications.

(ii) The ameliorative effects of the mitigating measures of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity.

(iii) As used in this subparagraph;

(I) the term “ordinary eyeglasses or contact lenses” means lenses that are intended to fully correct visual acuity or eliminate refractive error; and

II) the term “low-vision devices” means devices that magnify, enhance, or otherwise augment a visual image.

Who is Qualified?:

A. With respect to postsecondary . . . education services, an individual with a disability who meets the academic and technical standards requisite to admission or participation in the recipient’s education program or activity;

B. With respect to employment . . . an individual who can perform the essential functions of the job with or without reasonable accommodations

“Substantially limits” is defined as a person who is:

(a) unable to perform a major life activity; or

Title I (employment) (below regulation will be changing after January 1, 2009 to modify at least “significantly restricted” language)

significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the average person in the general population.

Title II and III (education) (below regulatory guidance will be changing after January 1, 2009 to conform to the new regulatory language)

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.

Section 504 Regulations: (34 C.F.R. Part 104)

Academic adjustments

Modifications that are necessary to ensure that course requirements do not discriminate or have the effect of discriminating, on the basis of disability, against a qualified applicant or student with a disability.

Academic requirements that the institution can demonstrate are essential to the program of instruction being pursued by a student or to any directly related licensing requirement will not be regarded as discriminatory.

Academic Adjustments may include changes in the length of time permitted for the completion of degree requirements, substitution of specific courses required for the completion of degree requirements, and adaptation of the manner in which specific courses are conducted.

An institution may not impose other rules, such as the prohibition of tape recorders in classrooms or of dog guides in campus buildings, that have the effect of limiting the participation of students with disabilities in the institution’s educational program or activity.

Auxiliary Aids

May include taped texts, interpreters or other effective methods of making orally delivered materials available to students with hearing impairments, readers in libraries for students with visual impairments, classroom equipment adapted for use by students with manual impairments, and other similar services and actions.

Postsecondary institutions need not provide attendants, individually prescribed devices, readers for personal use or study, or other devices or services of a personal nature. Tutoring is considered a service of a personal nature.

Course examinations

A covered entity . . . shall provide such methods for evaluating the achievement of students who have a handicap that impairs sensory, manual, or speaking skills as will best ensure that the results of the evaluation represents the student’s achievement in the course, rather than reflecting the student’s impaired sensory, manual, or speaking skills (except where such skills are the factors that the test purports to measure).

A public entity (state or local government) may not place a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the costs of measures, such as the provision of auxiliary aids or program accessibility, that are required to provide that individual or group with the nondiscriminatory treatment required by the ADA.

^{^[1]} (c) 2009. All rights reserved. Jo Anne Simon, P.C., 356 Fulton Street, Brooklyn, NY 11201.
718 852-3528 (V/TTY) | Web: www.joannesimon.com | Email: joanne@joannesimon.com.
Presentation at Council of Parent Advocates and Attorneys Annual Conference, Washington, DC, March 7-8, 2009