My child is struggling 
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Candace Cortiella: Also, these regulations that were revised and issued by the Department of Justice also seek to address some issues they had identified with regard to the amount of documentation that testing entities were asking for when students were requesting an
accommodation on tests such as the SAT or the ACT. Is that correct?
Jo Anne Simon: Yes. And here’s what happens: the courts became more narrow about who they thought had a disability. The big case that has shifted the landscape, involved twins (one who wore glasses and one wore contact lenses) who both they applied for a job as an airline pilot. United Airlines said their vision wasn’t good enough. And the twins said, “But when we have corrective lenses we see just like everybody else.” And the court said, “That’s not good enough.” And the twins said, “Well, if it’s not good enough when we’re wearing our glasses, when we’re not wearing our glasses then maybe we’re protected on the ADA as a person with a disability.” Then the court said, “Oh no. That doesn’t count either.”
Because of that kind of duality, that case went up to the Supreme Court which found that if you use the mitigating measure (e.g., you put your glasses on and you can see 20/20), then you really weren’t protected by the law. That’s not what the law meant. But that also extended to people who use hearing aids or took medication. These things, called mitigating measures, then became part of the mix.
That then complicated terribly the analysis of who had a disability. And so the standardized testing industry, which had not been particularly responsive in the first place, became even more resistant to providing accommodations to students and made them provide more and more information so that they could be doubly sure that they had a disability.
Because of that, the Justice Department, which wasn’t looking at the definition of disability but was saying, “Wait a second, we’re looking at these records and we’re getting complaints from people who say, ‘I was diagnosed when I was seven. I was in special education. I got accommodations in high school. I got accommodations in college. But when I applied for accommodations on a graduate admissions test, I was told I don’t qualify anymore, that I’m doing too well in school.’”
Parents had kids who had spent a lot of time on extra tutoring or whose kids took an SAT prep course. Sometimes their children were being denied accommodations by the SAT or by the ACT because the child was doing too well in school. But many times, they were doing well in school because something about the environment was being accommodating. Let’s say it was a very small class size. If you’re in a school with 10 or 15 kids in a class, it’s much easier to get the individual attention you need that you would get, for example, maybe in a special education classroom. But because it’s a general education program, but it’s a small class size, it’s helping to accommodate your needs. Or, [some students] were getting formal accommodations, but the SAT and the ACT were saying, “Well no, you don’t have a disability because your score on one particular item is not low enough.” And we interpret the ADA definition of “substantially limits” to mean that you have to be below the average range. But if you’re taking the SAT, you’re going to be a better student as opposed to a worse student, right? And you wouldn’t necessarily expect to see many scores below the 16th percentile.
And so it became a very complicated picture with a lot of dancing around of terminology. What the Justice Department realized was that people were being required to put in tons and tons of information, go back to doctors and psychologists, spend a lot of money to get revised reports.
One thing the [testing] organizations do is insist that the data be no more than three years old. That may make some sense when you’re in high school. Let’s say you’re 16 and the last time you were assessed was at 14, okay that’s fine. But beyond the age of 16 or 17, the brain doesn’t change all that much. You’re not going to all of a sudden not have a learning disability that you had earlier on. And we now know that learning disabilities are chronic, lifelong impairments.
But organizations such as the graduate admissions like the LSAT and the MCAT (and maybe the GRE or the accountant people) were asking for them to go back and get retested because their testing was maybe three-and-a-half or four years old.
And, of course, there’s no science to support that because there’s no science that indicates that people will get over these disorders or that something drastic will have changed. And if something does happen, let’s say somebody gets in a car accident and has a head injury, well of course there is some additional circumstance there that might very well makes sense to have some additional assessment done. But that’s not to protect the entity because somehow or other you area no longer disabled. But that’s the way it’s being used.
So the Justice Department said in its regulations that if you request documentation, it has to be reasonable and be limited to the need for the modification, accommodation, or aid or service requested. I always say (and I goof around with this) is that if what you really need is extended time you need to show that you read slowly. Then it really doesn’t matter what age you were toilet-trained.
But sometimes the level of information that’s been requested is extraordinarily intrusive and goes very far afield. The other thing the new regulation says is that when an organization is considering a request from somebody who wants accommodations, they have to give considerable weight to the documentation of past modifications or accommodations, received in similar situations, as well as accommodations and related aids and services provided in response to an IEP or a 504 plan in school.
So for example, I often find that people are rejected even though they had an IEP or a 504 plan because the testing entity just discounts that. And here the Justice Department is saying, “You have to give a lot of weight to the fact that they have that evidence.” They’re not saying you have to have exactly what’s in the IEP or the 504 plan. But they’re saying they have to give considerable weight to that history and those recommendations.
The Justice Department also says that the entity has to respond in a timely manner because sometimes people will find that they wait and wait, and it’s months and months, and the time goes by and they can no longer apply for that program for the next year because it’s taken too long. So the Justice Department said that similarly, they can’t wait forever before they give you a response. And when they do, they have to tell you why, what it is that has led to their thinking that you don’t have a disability. Those are the new changes to the Justice Department regulations. You no longer need to show as much limitation.
