1. The Accommodation Process & High Stakes Testing: A Contextual & Legal Perspective Jo Anne Simon, Esq. October 14, 2005

2. Blind Men and the Elephant Definition Screening Diagnostic Testing Accommodation Intervention Connected but not unconnected

3. eligibility Definition Discrepancy IQ yes, no, maybe Cut Off

4. EQUITY More Than Tests

5. Assessment More Than Tests

6. 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)

7. Whole > Sum of its parts Totality of the Evidence Contextual/LegalPerspective

8. Problem Tests often test the disability rather than the ability of individuals with disabilities

9. Validity “cornerstone of legal compliance” (Coleman, 2003)

10. 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

11. REAL PROBLEMS Misunderstanding of what the term learning disabilities means-pseudo LD EXPERTS and Lack of Experimental Research

12. Type One Error Ignore what standardized measures document Identify same accommodations for all individuals with disabilities

13. 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

14. 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

15. 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.

16. Reframing Literacy Questioning our language Color Blindness Reading with ears not eyes Writing with voice or computer

17. 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

18. "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

19. 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

20. 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 Bartlett’s individual case

21. Defendant’s Argument… Restricted in comparison to most people: – Scores more than 1 SD below mean – Ergo, below 16th% ile

22. 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

23. Plaintiff’s Argument … Assessing whether one is restricted in condition, manner in which most people read requires consideration of information in addition to scores.

24. 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.

25. 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.

26. KEY Finding of the Court the clinical observations of plaintiff's manner of reading were the most probative evidence of disability.

27. 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.

28. 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.

29. 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.

30. Trends 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

31. Creative Responses

32. Speak Bostonian – Write Bostonian

33. Of course she was!

34. Self Advocacy

35. one last thought… “Be ashamed to die until you have won some victory for humanity.” » Horace Mann