The Accommodation Process & High Stakes Testing:

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Transcript The Accommodation Process & High Stakes Testing:

The Accommodation
Process & High Stakes
A Contextual & Legal
Jo Anne Simon, Esq.
October 14, 2005
Blind Men and the Elephant
Diagnostic Testing
Connected but not
IQ yes, no, maybe
Cut Off
More Than Tests
More Than Tests
Despite efforts. . .
Dropout rates for students with LD higher than
their peers (Kaufman, Kwon,Klein, & Chapman, 1999; Scalon & Mellard,
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)
Whole > Sum of its parts
Totality of the Evidence
Tests often test the
disability rather than
the ability of
individuals with
“cornerstone of legal
(Coleman, 2003)
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
Misunderstanding of what the term learning
disabilities means-pseudo LD EXPERTS and
Lack of Experimental Research
Type One Error
Ignore what standardized measures
Identify same accommodations for all
individuals with disabilities
Type Two Error
Believe only standardized scores
Ignore historical documentation of the
Believe the Bell Curve is next to or better than
Discount the high correlation between
cognitive measures of ability and achievement
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
Substantial Limitations
Not Utter Inability
“. ..stating that the ADA “addresses
substantial limitation on major life
activities, not utter inabilities”
Bragdon, 524 U.S. at 641
Reframing Literacy
Questioning our language
Color Blindness
Reading with ears not
Writing with voice or
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
"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
1993 --Plaintiff sues for failure to
June 1999 -- Supreme Court decides
Sutton trilogy of cases re: “mitigating
measures” and Bartlett is remanded for
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 Bartlett’s individual case
Defendant’s Argument…
Restricted in comparison to most
– Scores more than 1 SD below mean
– Ergo, below 16th% ile
Defendants' Argument . . .
• She can't have a disability if she got
through college, graduate and law
• She learned German
• LSAT scores (slightly) above the mean
Plaintiff’s Argument…
Assessing whether one is restricted in
condition, manner in which most people
read requires consideration of
information in addition to scores.
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.
– Plaintiff’s accomplishments by alternate
routes are consistent with having a
learning disability.
Challenges Presented
by the Law
How does we measure substantial
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.
KEY Finding of the Court
the clinical observations of
plaintiff's manner of reading were the
most probative evidence of
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.
The Holding…
When considering both the positive and
negative effects of plaintiff's selfaccommodations, 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
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.
Plato’s philosopher-ruler: one with the
capacity to know what differences make
a difference.
Narrowing of definition of disability
Reduction of remedies available
Increase of “State’s rights” decisions by
the U.S. Supreme Court
Greater reliance on state legislation
Creative Responses
Speak Bostonian – Write Bostonian
Of course she was!
Self Advocacy
one last thought…
“Be ashamed to die until you have
won some victory for humanity.”
» Horace Mann