The United States Department of Justice (DOJ) is tasked with enforcing the ADA and has been very active in pursuing organizations that give such standardized tests. Recently, a settlement was reached with the Law School Admissions Council over their failure to provide appropriate accommodations to persons with a variety of disabilities. That settlement resulted in an agreement to pay $7.73 million to compensate over 6000 individuals who over the past 5 years had requested accommodations such as extra time and were denied. Part of the settlement required the LSAC to reform its policies and stop flagging LSAT scores for people who had received extended time. By flagging these scores, LSAC was deemed to be discriminating against persons with disabilities by advising schools that were using the scores that the person had requested an accommodation. Although the time for filing a claim against these monies have now passed, persons who took this test and failed it, are still eligible to retake the test.
As a result of the settlement, DOJ has also recently issued new regulations mandating testing accommodations in all standardized test situations. Testing entities, which include private, state, or local government entities, must set up comprehensive policies and procedures to deal with requests for such accommodations. What types of testing accommodations must be provided? Over time, I’m sure litigation will develop a more detailed list of accommodations. For now, braille or large print exam booklets, screen-reading technology, scribes to transfer answers to Scantron bubble sheets or record dictated notes or essays, extended time to take the test, wheelchair accessible testing stations, distraction-free rooms, physical prompts (for persons with hearing impairments) and the ability to bring and take medications during the exam or to even eat food or drink water if it is necessary to accommodate the person’s disability.
Who is eligible to receive these accommodations? Any individual with a disability that is either physical or mental in nature that substantially limits a major life activity or a major bodily function is eligible to request accommodations. The determination of whether an individual has a disability is normally left to the person themselves. However, the testing entity does have the right to demand proof of the disability. In situations in which a student has an IEP (individual education plan) or 504 plan, the plan itself will usually outline the extent of the needed accommodations. However, an IEP in and of itself should not limit the extent of the accommodations that might be necessary under these new guidelines. It will likely take time for these issues to be worked out either with DOJ or the court system.
The request for documentation must be reasonable in nature and must be narrowly tailored to the information needed to determine the nature of the person’s disability and the need for the requested testing accommodation. Good examples of documentation that should support a request for accommodation would be letters from doctors or other skilled/trained persons in the area of the disability, proof of past testing accommodations, results of psycho-educational or other professional valuations (think IEP), prior disability diagnosis, current disability diagnosis, and a statement by the test-taker of his or her history regarding accommodations. Demanding all of these be provided might be deemed excessive, but each case must be decided on its own merits.
Even if a person with a disability has a history of academic success, they might still be entitled to an accommodation if their disability warrants it. Just because someone is a straight-A student or does well in school, does not mean they are not warranted a needed accommodation. Someone with a learning disability may achieve a high level of academic success but still be substantially limited in one or more of the major life activities and need more time or effort or assistance to take a standardized test. Any entity denying a request for an accommodation based on the academic history of the requesting individual would be risking an adverse decision should litigation be filed.
What types of accommodations need to be made? It really depends on the nature of the disability. However, where the test measures a person’s understanding of a certain concept or skill level, it is not permissible to ask for an accommodation that makes the test answering easier. (Think requesting the use of a calculator in a math test.) Having a scribe is certainly an allowable accommodation as long as the scribe does not interpret or change the response. The scribe must be properly trained and/or educated so that only the actual response is put down, not an interpretation of the response.
An absence of previous formal testing accommodations does not support a rejection of a requested accommodation. Situations change with everyone. Just because a person with a disability did not need accommodation in the past doesn’t mean that one is not warranted in the present. Especially if the disability is only recently diagnosed. In situations where there is a question of the validity of the disability, it would seem prudent to err on the side of caution to avoid litigation and the prospect of paying attorneys fees under the ADA.
In situations in which the support for the requested accommodation is deemed insufficient or lacking in detail, it is perfectly acceptable for the testing facility to ask for clarification or additional backup. However, having a policy or procedure that requires such in every single case could be deemed to be discriminatory.
The request for accommodation should be acted on within a reasonable amount of time. Certainly, a request made within days or weeks of a test might be deemed unreasonable, but each situation must be decided as to the extent of the accommodations being sought and whether the testing facility has sufficient time to make the accommodations. Having policies and procedures in place addressing response times would seem to be a prudent idea.
Given these new regulations are in their infancy, it may take a while for all of the wrinkles to be ironed out. LaBovick Law Group has a division dedicated to answering questions associated with the Americans with Disabilities Act. Attorney Joseph R. Fields, Jr., Esq. is available for free initial consultations.