[blindlaw] [Aheadmembers] Help! LSAT Accommodation Questions

Wed Jul 25 15:44:35 UTC 2012

I thought this exchange by the Ohio State University's ADA coordinator about accommodations in high stakes testing, and specifically the LSAT, might be of interest to some on this list.

From: Lissner, Scott [mailto:Lissner.2 at osu.edu]
Sent: Tuesday, July 24, 2012 3:17 PM
To: aheadmembers at listserve.com
Cc: PAMELA ROBERTS; Tanya Kunze
Subject: RE: [Aheadmembers] Help! LSAT Accommodation Questions

Pamela,

I believe, as do others, that as AHEAD has the testing industry will have to adopt a new standards for documenting accommodations request based on the changed regulations and amendments to the ADA.  AHEAD recognized the changes and developed its guidance to reflect them.  The testing industry does not entirely agree  with our interpretation they are not obligated by our guidance and are entitled to disagree; ultimately the courts or DOJ will clarify this.

In the short run my advice is to be as clear to your students about the evolving state of the law on this issue, what choices you and your institution has made, and what their options are.  Within reason and the boundaries of your role support their informed decision making.

Recently an alumna from OSU was denied accommodations on the LSAT under very similar circumstances.  She did get more documentation and was denied again.  Ultimately she went to Ohio Legal Rights who took the case and filed suit in Federal District Court.  The complaint was settled last Friday; the student will receive all the accommodations she originally asked for.  While a settlement does not create precedent or the common law standard we long for  I found it encouraging that the protection and advocacy agency for the state was willing to take a high stakes testing case and I am pleased that that the student will receive her accommodations.

Here is information on the settlement and associated pleadings.  Below that is my sample appeal letter that I promised to share with a number of folks at conference.  I think they may be useful as you consider these issues on campus and advise your students.  The Complaint for Declaratory and Injunctive Relief 5-25-12 (PDF file)<http://www.olrs.ohio.gov/sites/olrs.ohio.gov/files/manni-lsac-complaint-5-25-12.pdf> may be the most informative part of the settlement information.

Settlement reached in case involving testing modifications for law school applicant
http://www.olrs.ohio.gov/news/maani-settlement-july-20-2012

July 20, 2012
The Ohio Legal Rights Service (LRS) reached a settlement with the Law School Admission Council (LSAC) on behalf of a prospective law school applicant seeking testing modifications. The agreement requires LSAC to provide testing modifications for the Law School Admission Test (LSAT) that will accommodate the applicant's disability and allow her to demonstrate her actual knowledge, aptitude and skill on the LSAT rather than simply the limitations of testing procedures and the discriminatory policies of LSAC.

LRS originally filed a complaint in the U.S. District Court Southern District of Ohio Eastern Division seeking declaratory and injunctive relief against the LSAC, the organization that administers the test. The case was set for trial in August. In light of the settlement agreement, LRS filed a Motion to Dismiss the case.

Read the settlement agreement: Agreement and Release of Claims (PDF file)<http://www.olrs.ohio.gov/sites/olrs.ohio.gov/files/u5/maani-agreement-7-20-12.pdf>

For more information about the case: Maani v. Law School Admission Council<http://www.olrs.ohio.gov/legal-library/maani%20>

From: Lissner, Scott
To: aheadmembers at listserve.com
Subject: Annual Spring Testing Question

This time of year I usually receive questions about accommodations for standardized testing.   Recently I received the question bellow off line and thought I would share.

Scott,

I have a question, I have a student who requested her full accommodations from (testing agency), these were based on documentation that we have used so that she can have double time on her exams. The Testing Agency is requiring new comprehensive testing and scores. Is this addressed in the ADAAA? My notes from your talk seem to say so. Thank you for your time with this.

Your memory is right.  Dialing back the amount of documentation required was a primary theme of the ADA AA.  So far all of the new regulations released for the  ADA AA  focus directly on employment.  However there are new rules specifically aimed at Examinations and Courses, particularly high stakes testing that went into effect March 15, 2011.   "Any request for documentation, if such documentation is required, is reasonable and limited to the need for the modification, accommodation, or auxiliary aid or service requested (29 C.F.R. § 36.309(b)(1)(iv)).  The Dept. of Justice goes on to say " When considering requests for modifications,  accommodations, or auxiliary aids or services, the entity gives considerable weight to documentation of past modifications, accommodations, or auxiliary aids or services received in similar testing situations, as well as such modifications, accommodations, or related aids and services provided in response to an Individualized Education Program (IEP) provided under IDEA or a plan describing services provided pursuant to section 504 of the Rehabilitation Act of 1973" (29 C.F.R. § 36.309(b)(1)(v))  The text of a few more slides are below.

So you are right but I am not sure how up to date (Testing Agency) is.  I would try an appeal with a letter clarifying the accommodations you provided and the history and information you based them on:

1.   This individual has received similar accommodations across a range of testing (essay, a variety of multiple choice formats, an hour or less in length, 2-3 hours in length, on computers, with paper, ...) at (your institution).

2.   Our decision to accommodate was based on an educational history demonstrating the use of the same (or similar) testing accommodations at (list the settings and the types of tests including State gate/ graduation tests, college admission tests and various formats of classroom testing).

3.   I also reviewed evaluations that were made by (name the sources - school system, diagnostician, ...) in 19xx)  that support this history and the current request.

4.   I would conclude your with something like "In my judgment this history and material demonstrates the ongoing presence of a disability that warrants the accommodations (name of your institution) has provided in assessment contexts similar to(Test Name).

Below are some excerpts from a presentation of mine that form the basis for the four points above.

Good Luck

Scott

On March 15, 2011, the U.S. Dep't of Justice regulations and guidance regarding the ADA and examinations and coursed (including but not limited to standardized tests) became effective. (42 U.S.C. 12189).
Section 309 of the ADA is intended to . . . ensure that individuals with disabilities are not excluded from educational, professional, or trade opportunities because examinations or courses are offered in a place or manner that is not accessible. See

Applicable to Titles II & III  (42 U.S.C. § 12189)
"Any person that offers examinations or courses related to applications, licensing, certification, or credentialing for secondary or post-secondary education, professional, or trade purposes shall offer such examinations or courses in a place and manner accessible to persons with disabilities or offer alternative accessible arrangements for such individuals."

29 C.F.R. § 36.309(b)(1)(iv)
Any request for documentation, if such documentation is required, must be reasonable and limited to the need for the modification, accommodation, or auxiliary aid or service requested.

36.309(b)(1)(v) - [new section effective March 15, 2011]:
When considering requests for modifications,  accommodations, or auxiliary aids or services, the entity gives considerable weight to documentation of past modifications, accommodations, or auxiliary aids or services received in similar testing situations, as well as such modifications, accommodations, or related aids and services provided in response to an Individualized Education Program (IEP) provided under IDEA or a plan describing services provided pursuant to section 504 of the Rehabilitation Act of 1973...

No one piece of evidence may be dispositive in make a testing accommodation determination. The significance of a letter or other communication from a doctor or other qualified professional would depend on the professional's relationship with the candidate and the specific content of the communication, as well as how the letter fits in with the totality of the other factors used to determine testing accommodations under this rule.

Similarly, an applicant's failure to provide results from a specific test or evaluation instrument should not of itself preclude approval of requests for modifications, accommodations, or aids if the documentation provided by the applicant, in its entirety, is sufficient to demonstrate that the individual has a disability and requires a requested modification, accommodation, or aid on the relevant examination

L. Scott Lissner, Ohio State University ADA Coordinator, Office Of Diversity And Inclusion
  Associate, John Glenn School of Public Affairs
  Lecturer, Knowlton School of Architecture, Moritz College of Law & Disability Studies
  President Elect, Association on Higher Education And Disability
  Chair, ADA-OHIO
  Appointed,  Ohio Governor's Council For People With Disabilities, State HAVA Committee &
  Columbus Advisory Council on Disability Issues

L. Scott Lissner, University ADA Coordinator
Office Of Diversity and Inclusion
281 W. Lane Ave<http://www.osu.edu/map/building.php?area=northdorms&building=160>
Columbus, OH 43210-1266

(614) 292-6207(v); (614) 688-8605(tty)
(614) 688-3665(fax); Http://ada.osu.edu<http://ada.osu.edu/>

From: PAMELA ROBERTS [mailto:pamelaroberts at depauw.edu]
Sent: Tuesday, July 24, 2012 5:00 PM
To: aheadmembers at listserve.com
Subject: [Aheadmembers] Help! LSAT Accommodation Questions

Hello Colleagues,
I just had the most interesting phone call about 15 minutes ago, and I need your feedback and help.  The call was from a student who is registering to take the LSAT this fall.  He is in the process of applying for accommodations, and of course needs a statement from my office.  He was told, during this process, that in addition he would have to have a new neuropsych. evaluation done, which of course is going to be very expensive ( he lives in New York, and the price is around $2,000 to $4,000).  He was evaluated in 2007, and has a comprehensive evaluation on file and can provide that to the LSAT Board. They, however, told him that since the evaluation was done prior to his 21st birthday, and more than 3 years old, he would need a new one.......  this student is severely dyslexic, has a history of accommodations from the time he was in elementary school, has been very consistent in his need for accommodations here at DePauw, and I cannot understand why they would insist that he pay for an additional evaluation, when the information he has from his last evaluation, and the accommodations he has used here as well throughout his school career are basically the same..... did I misunderstand at the AHEAD conference that those high stakes exams such as the MCAT, GRE and LSAT were going to update requirements for accommodation to reflect the AHEAD's guidelines for accommodation??   Any suggestion or feedback would be appreciated...or clarification, as I was totally floored when he told me this. I actually had him call the coordinator he was working with for clarification, thinking they would tell him the paperwork he was looking at was outdated.... obviously not......

--
Pamela Roberts
Coordinator for Academic Success;
Student Disability Services and ADA Compliance
101 E. Seminary St.
DePauw University
Greencastle,IN 46135
PAMELAROBERTS at DEPAUW.EDU<mailto:PAMELAROBERTS at DEPAUW.EDU>
765-658-6267(office)
765-658-4021(fax)