February 27, 2013 Disability Consortium Meeting Presented by: Rachel Weisberg

1. 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

2. Session Outline • 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

3. 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).

4. 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)

5. 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

6. Accommodating College and Graduate School Students with Learning Disabilities

7. 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. 7

8. 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)

9. Reasonable Accommodations • 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)

10. Best Practices • 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.)

11. TESTING ACCOMMODATIONS

12. 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.

13. 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 .

14. Exam Modifications • Extended time • Testing in a separate room • Use of a computer • Reader • Scribe • Breaks between sections • Additional rest time • Alternate non-Scantron answer sheet

15. 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.

16. 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.

17. 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.

18. 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

19. 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.

20. The ADA Amendments Act: Accommodating Students and Test Takers with Learning Disabilities QUESTIONS?