Tougher Climate for Test Givers

With three weeks to go before new federal regulations make it easier for students with disabilities to request special accommodations, the Justice Department used a high-profile case to signal its intention to strongly protect the rights of disabled test takers.

The settlement closes a federal investigation that grew from a January 2008 complaint by a Yale University student, who alleged that the National Board of Medical Examiners twice denied him the additional time and separate testing area he needed to complete the U.S. Medical Licensing Examination. Under the Americans with Disabilities Act, students may request such accommodations if they can prove they have a medical need.

And while the settlement suggests the federal government's increased inclination to enforce such rules, it isn’t exactly groundbreaking in its timing. That is because on March 15, new amendments to the ADA will take effect, clamping down on testing agencies and colleges on the same issues addressed in the settlement.

Taken together, the settlement and the regulations will eventually lead to more accommodations for students whose conditions limit their ability to complete tests. (The settlement ordered the national board to grant the Yale student double the standard testing time and a separate testing area, requests that are not uncommon in this arena.)

“The issue of high-stakes testing accommodations was clearly salient enough to the Department of Justice that despite having created the new regulations, they felt that pursuing this case was important,” said L. Scott Lissner, ADA coordinator at Ohio State University and president-elect of the Association on Higher Education and Disability. “This sends a message.”

The settlement addresses testing agencies’ “demands for unnecessary or redundant documentation, burdensome and expensive repeated professional evaluations, or irrelevant evaluative testing unrelated to the ability to demonstrate one’s knowledge or skills on an examination,” as Thomas E. Perez, assistant attorney general for the Civil Rights Division, put it in the news release.

Such hurdles have made it difficult for many a student to qualify for standardized testing accommodations -- though the problem is by no means limited to the national board. In recent years, these obstacles have triggered lawsuits at colleges and other testing agencies.

At Princeton University, complaints from two students who were denied classroom accommodations are under investigation. And the Association of American Medical Colleges came out of a four-year lawsuit in the clear, after a California appeals court ruled that the plaintiffs had inappropriately sought accommodations under state law, rather than the ADA. (Lawyers for the AAMC, which declined to comment for this article because it is not party to the settlement, had said after the initial ruling that state-by-state standards would create confusion and may call into question the integrity of the test.) Lissner said many students must send in documentation multiple times to meet the satisfaction of colleges or agencies, while others are deterred altogether by the difficult process. (Note: This article has been updated from a previous version to clarify AAMC's position.)

The national board stands by its procedures. “The NBME will continue to provide testing accommodations to candidates in accordance with the requirements of the Americans with Disabilities Act,” the board said in a statement sent to Inside Higher Ed in lieu of an interview. “Our accommodation process is rigorous but fair, and properly reflects the important role that the [medical licensing exam] plays in the licensure process for physicians.”

When deciding whether to grant accommodations, colleges or testing agencies will request documentation of the student’s medical history and mental or physical condition. But they have also taken heat for overemphasizing the importance of documents that were recently issued, while undervaluing a student's medical and educational history.

For instance, an agency might disregard a student's diagnosis and/or accommodations from when he or she was 13, even though the condition won't have changed, and the accommodations can provide context. “People have wanted scientific evidence that was quote-unquote objective third-party evidence, at -- if not beyond a reasonable doubt, pretty close to it,” Lissner said. "I don't think every college in the country wants that, but some do. And I don't know if every testing agency in the country wants that, but that's been the trend."

But under the new regulations -- and, for the medical examiners' board, under the settlement -- colleges and agencies will operate under stricter guidelines when it comes to determining whether a student is eligible for disability accommodations. The settlement specifically limits the type of information agencies can seek; requires them to “carefully consider” the documentation of professionals who have observed the applicant in a clinical setting; and and requires carefully consider “all evidence” indicating whether the student’s ability to read is “substantially limited” under the ADA.

The new regulations, meanwhile, specify that documentation requests be “reasonable and limited to the need for the modification, accommodation, or auxiliary aid or service requested”; that the agency or college give “considerable weight” to the student’s educational history, modifications and accommodations; and that the agency or college respond “in a timely manner” to requests.

Lissner said that in the immediate future, the regulations will primarily affect the testing agencies, even though colleges use the same process, just in a different context; while requests in standardized testing tend to revolve around timing and location, requests in a classroom setting can vary greatly depending on the course and the assignment. But as the national board goes through what amounts to an unofficial trial period, and others feel out how to implement the regulations, the effects can trickle down, he said.