The Accommodation Process

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The Accommodation Process High Stakes Testing

• A Contextual Legal Perspective
• Jo Anne Simon, Esq.
• October 14, 2005

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Blind Men and the Elephant

• Definition
• Screening
• Diagnostic Testing
• Accommodation
• Intervention
• Connected but not unconnected

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(No Transcript)
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EQUITY

• More Than Tests

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Assessment

• More Than Tests

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Despite efforts. . .

• Dropout rates for students with LD higher than
  their peers (Kaufman, Kwon,Klein, Chapman,
  1999 Scalon Mellard, 2002)
• Acceptance to postsecondary institutions
• lower for population with LD (Vogel Reeder,
  1999)
• Acceptance to professional schools lower for
  population with LD (Vogel Reeder, 1999)
• Income for population with LD lower than their
  peers (Vogel Reeder, 1999)

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Whole gt Sum of its partsTotality of the Evidence

• Contextual/Legal
• Perspective

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Problem

• Tests often test the disability rather than the
  ability of individuals with disabilities

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Validity

• cornerstone of legal compliance
• (Coleman, 2003)

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Clinical Judgment

• A learning disability is not measurable in the
  same way a blood disease can be measured in a
  serum test. By its very nature, diagnosing a
  learning disability requires clinical judgment.
• Sotomayor, 2001

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REAL PROBLEMS

• Misunderstanding of what the term learning
  disabilities means-pseudo LD EXPERTS and Lack of
  Experimental Research

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Type One Error

• Ignore what standardized measures document
• Identify same accommodations for all individuals
  with disabilities

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Type Two Error

• Believe only standardized scores
• Ignore historical documentation of the disability
• Believe the Bell Curve is next to or better than
  godliness
• Discount the high correlation between cognitive
  measures of ability and achievement

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Empirical Research on Accommodations (Sierci, Li,
Scarpati ,2003)

• Reviewed literature only 150 studies
• Of the 150 studies only 46 pertained to testing
• Only 38 of the 150 involved experimental
  methodology
• Of the 150 studies, only one experimental study
  was done with the adult population (college)
• Findings are nothing less
• than criminal

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Substantial LimitationsNot Utter Inability

• . ..stating that the ADA addresses substantial
  limitation on major life activities, not utter
  inabilities
• Bragdon, 524 U.S. at 641.

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Reframing LiteracyQuestioning our language

• Color Blindness
• Reading with ears not eyes
• Writing with voice or computer

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Who is Protected?

• A person with a physical or mental impairment
  that substantially limits one or more of the
  major life activities of such individual

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"substantially limits"

• 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

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1993-97

• 1993 --Plaintiff sues for failure to accommodate
• June 1999 -- Supreme Court decides Sutton trilogy
  of cases re mitigating measures and Bartlett
  is remanded for reconsideration

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2000

• Second Circuit issues its decision that a person
  can demonstrate a disability if the performance
  of a major life activity slow and/or other
  limited conditions, manner, or duration
  including side effects, are demonstrated.
• Remands for narrow finding on evidence in
  Bartletts individual case

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Defendants Argument

• Restricted in comparison to most people
• Scores more than 1 SD below mean
• Ergo, below 16th ile

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Defendants' Argument . . .

• She can't have a disability if she got through
  college, graduate and law schools
• She learned German
• LSAT scores (slightly) above the mean

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Plaintiffs Argument

• Assessing whether one is restricted in condition,
  manner in which most people read requires
  consideration of information in addition to
  scores.

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Most children have automatized the processes of
reading, spelling, and writing.

• Research confirms that the key to efficient
  reading is automaticity, in other words,
  processing words quickly and without conscious
  attention.
• Plaintiffs accomplishments by alternate routes
  are consistent with having a learning disability.

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Challenges Presented by the Law

• How does we measure substantial limitations??
• There are no truly appropriate measures of
  reading assessment for adults no tests have been
  developed for this purpose because generally
  adults are not tested.

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KEY Finding of the Court

• the clinical observations of plaintiff's manner
  of reading were the most probative evidence of
  disability.

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The Holding

• On the totality of evidence . . . including
  plaintiff's psychometric test scores, . . .
  plaintiff proved that she is an individual with a
  disability under the ADA because she is
  substantially limited in the major life activity
  of reading when compared to most people.

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The Holding

• When considering both the positive and negative
  effects of plaintiff's self-accommodations,
  plaintiff is substantially limited in the major
  life activity of reading . . . by her slow
  reading rate and by the fatigue caused by her
  inability to read with automaticity.

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Why clinical judgment?

• Why a judge? A judge cannot simply follow
  precedents, she is needed precisely because the
  law does not tell her exactly what to do.Platos
  philosopher-ruler one with the capacity to know
  what differences make a difference.

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Trends

• Narrowing of definition of disability
• Reduction of remedies available
• Increase of States rights decisions by the
  U.S. Supreme Court
• Greater reliance on state legislation

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Creative Responses
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Speak Bostonian Write Bostonian
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Of course she was!
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Self Advocacy
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one last thought

• Be ashamed to die until you have won some
  victory for humanity.
• Horace Mann