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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
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Session Outline
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III.
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ADA 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
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).
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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)
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Appendix to EEOC
Regulations
“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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Accommodating College and Graduate
School Students with Learning
Disabilities
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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.
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Reasonable
Accommodations
• Reasonable modifications may include:
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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.
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Peters v. University of Cincinnati College of Medicine, 2010 WL
3878601 (S.D. Ohio, Sept. 6, 2012)
Reasonable
Accommodations
• Reasonable modifications may not include:
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Lowered criteria for admission.
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Requests to lower academic standards or required GPA.
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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.
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Gent v. Radford Univ., 976 F. Supp. 391, 393 (W.D. Va. 1997)
Guckenberger v. Boston Univ., 8 F. Supp. 2d 82 (D. Mass. 1998)
(waiver of foreign language requirement was not reasonable)
Best Practices
• Connect with disability services office
• Follow University procedures for requesting
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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.)
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TESTING ACCOMMODATIONS
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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.
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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 .
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Exam Modifications
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Extended time
Testing in a separate room
Use of a computer
Reader
Scribe
Breaks between sections
Additional rest time
Alternate non-Scantron answer sheet
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.
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LSAC engages in widespread and systemic deficiencies in
the way it processes requests by people with disabilities for
testing accommodations.
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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.
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Identified claims of individuals with various learning
disabilities.
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DOJ Action Against LSAC
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.
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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 welldocumented and consistent diagnosis, as well as his
long history of testing accommodations.
• Requested reconsideration, but LSAC continued to
deny request.
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Note: There are a handful of other lawsuits pending
against LSAC with similar claims.
DOJ: Flagging Scores
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
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DOJ: Flagging Scores
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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.
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The ADA Amendments Act:
Accommodating Students and
Test Takers with Learning Disabilities
QUESTIONS?
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