On demand 1h 11s Intermediate

Education-Related Disability Claims Under the ADA

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Education-Related Disability Claims Under the ADA

In this course, you will learn all about the protections provided to disabled persons under the Americans with Disabilities Act (ADA) and other laws as they relate to discrimination in the education context. We will focus on both Title II, which covers public entities, and Title III, which covers private entities. The course will provide attorneys with a basic working knowledge of the ADA to better represent their clients who face education-related discrimination.

Transcript

- [Brandy Wagstaff] Hi everyone. I'm Brandy Wagstaff. I'm an adjunct professor of law with George Mason University Law School. I'm also an attorney advisor and a 23 year veteran with the federal government. In my capacity as a law professor, I teach several classes. I teach appellate writing, appellate advocacy, legislative and regulatory drafting, disability law, and civil rights prosecutions. So today we are going to talk about disability discrimination in the education context so that you can understand the applicable laws to better represent and advocate for your disabled clients who are experiencing discrimination by an education or education related entity because of their disability. Specifically, we are going to focus on learning about the provisions of the Americans with Disabilities Act, or as I'll refer to throughout the program as the ADA and related laws that impact education related services, which include education offered by both private and public entities and examinations and courses offered by private entities. We will go over what constitutes discrimination under the act with a focus on both Title II, which covers public entities and Title III, which covers private entities. We will start by providing an overview of the ADA, specifically focusing on Titles II two Titles III of the ADA, and then next we will briefly talk about the definition of disability under the ADA so that you have a better understanding of who comes under the umbrella of coverage in the education related context. This will then segue into discussion on the specific provisions of Titles II and Title III that cover education at the primary, secondary, and higher education levels. We will then discuss the provisions of Title III that cover entities who provide examinations and courses, which include entities who administer examinations such as the SAT, the LSAT, and MCAT, and we will discuss the provisions of the ADA that impact other entities who administer licensing or credentialing exams such as the bar exam. So first, before we get started into the details of education related discrimination, I wanted go over a brief history and overview of the ADA. So prior to the passage of the ADA, the main federal law that provided protections to people with disabilities was the Rehabilitation Act of 1973, especially section 504 of the Rehabilitation Act. The Rehabilitation Act prohibits discrimination on the basis of disability in programs conducted by Federal agencies, in programs who receive Federal financial assistance, in Federal employment, and in the employment practices of Federal contractors. Because of its limited jurisdictional and substantive reach, disability rights advocates and lawmakers pushed for a more extensive law, which eventually culminated in the passage of the ADA. The ADA was signed into law on July 26th, 1990. Its overall purpose is to make American society more accessible to people with disabilities. The ADA's protections apply primarily, but not exclusively, to individuals who meet the definition of disability. In 2008, the ADA Amendments Act was passed, and the main purpose for the ADA Amendments was to broaden the definition of disability, which we will discuss shortly, which had been narrowed by a series of US Supreme Court decisions. The ADA itself is divided into five titles, three of which are the main focus of the law. So first we have Title I, which covers employment. Title I requires employers to provide reasonable accommodations for applicants and employees with disabilities, and prohibits discrimination on the basis of disability in all aspects of employment. Next, we have Title II. Title II covers all activities of state and local governments, and provides that these public entities not discriminate against people with disabilities in the provision of a public entity's services, programs, or activities, and then next we have Title III. Title III covers public accommodations. Public accommodations are private entities who own lease, lease to, or operate facilities such as restaurants, retail stores, hotels, movie theaters, private schools, convention centers, doctors' offices, homeless shelters, transportation depots, zoos, funeral homes, daycare centers, recreation facilities, which includes sports stadiums and fitness clubs. You name it, if it's operated by a private entity and provides access to the public, Title III is going to cover it. And these public accommodations must comply with the basic non-discrimination requirements that prohibit exclusion, segregation, and unequal treatment. So as I mentioned earlier, the ADA primarily protects individuals who fall under the definition of disability, so let's talk briefly about the definition. Under the ADA, the term disability means, with respect to an individual, one, a physical or mental impairment that substantially limits one or more major life activities of such individual; two, a record of such impairment; or three, being regarded as having such an impairment. So even if you don't have an impairment that substantially limits one or more major life activities, if the entity regards you as having such an impairment, you still fall under the definition of disability. In addition to having a disability, the individual may also need to be "qualified". So in the employment context, which we had discussed in my previous CLE, a qualified individual is one who is able to perform the essential functions of the job with or without reasonable accommodations. Now, because we're focusing on Title II and Title III for the CLE, we'll also talk about what it means to be qualified in those contexts as well. So in regard to Title II, in public services, a qualified individual is one who meets the essential eligibility requirements with or without reasonable modifications, and with Title III, with respect to public accommodations, there is not a general qualification requirement. It applies to all individuals with disabilities; however, qualifications can come into play if a public accommodation has a program or a service that requires participants to meet certain qualifications. That's important to note, because oftentimes in the higher education context, qualifications come into play with respect to admission to colleges and other institutions of higher education. So one thing to note is that the text of the definition of disability has not changed since the passage of the ADA, even with the ADA Amendments Act of 2008; however, as I mentioned, the ADA Amendments were primarily focused on the definition of disability, which had been narrowed by a series of Supreme Court decisions, and with the Amendments Act, the definition of disability is now required to be interpreted more broadly. The bottom line is that the focus should not be on determining whether someone has a disability under the law, but whether they were subject to unlawful discrimination based on an actual or perceived disability. So let's jump into the heart of this CLE course. We're gonna talk about Titles II and III of the ADA in the education context. So there are a number of laws that govern education for people with disabilities. In the primary and secondary education context, we have the Individuals with Disabilities Education Act or what we refer to as IDEA or IDEA. We also have section 504 of the Rehabilitation Act and Titles II and III of the ADA. With respect to higher education, the laws that apply are section 504 of the Rehabilitation Act and Titles II and III of the ADA. So let's briefly talk about the IDEA, the Individuals with Disabilities Education Act. Before we get into the specific provisions of the ADA and how they come into play in the education context, it is important to note that there is a relevant law we will not be discussing in detail, which is the Individuals with Disabilities Education Act or the IDEA. So the IDEA focuses on ensuring that all children with disabilities have access to what's known as a free and appropriate public education that emphasizes special education and related services that are designed to meet the unique needs of each child with a disability. So the reason we're not going into a lot of detail with the IDEA is because it warrants a whole CLE class on its own. I mentioned it just to let you know that it is the primary law for ensuring education and related services for public school-aged children with disabilities, and if your client is a child of such age, you should be sure to consult materials related to this law as a starting point; however, the IDEA does not cover all aspects of disability related discrimination in public schools. Sometimes a child might be experiencing discrimination that actually can't be remedied under the IDEA, but falls within the coverage of the ADA, specifically Title II of the ADA. As I mentioned earlier, Title II covers all activities of state and local governments. This includes public schools and Title II provides that these public schools not discriminate against students with disabilities in the provision of its services, programs, or activities. As with all other state and local governments, public schools are required to follow specific architectural standards in the new construction and alteration of their buildings. They must also relocate programs or otherwise provide access in inaccessible older buildings, and they must also communicate effectively with people who have vision, hearing, or speech disabilities. They are further required to make reasonable modifications to policies, practices, and procedures where it is necessary to avoid discrimination. If any Title II entity violates these provisions, individuals can bring an ADA lawsuit accordingly, and this lawsuit can be brought in a federal district court; however, I had mentioned the IDEA earlier, and I wanna circle back to that real quick because it comes into play here with respect to an ADA claim with public schools. So under the IDEA, before a disabled student can pursue a federal action in court, they must exhaust their administrative remedies through the IDEA processes that are laid out in that statute. So thus, when a disabled child pursues an ADA claim in the public education context, the question then becomes is whether they must still exhaust their administrative remedies under the IDEA, because the ADA claim involves a student in a public school setting, so essentially because we are dealing with students with disabilities in public schools, the question is whether a child who has an ADA claim must go through the administrative process before they can eventually file a lawsuit in federal court, so this is a question that made its way all the way up to the Supreme Court. So according to the Supreme Court in 2017, the IDEA does not require that a plaintiff exhaust administrative remedies before suing under the ADA if, and this is the big if, if the plaintiff's claims are not based in and seeking relief for the denial of a free and appropriate public education or what is known as a FAPE. So this case was about a 13-year-old Michigan girl with cerebral palsy, who spent years battling school officials for the right to bring her service dog, a golden doodle named Wonder, to class. This dog provided services to her throughout the day that helped control her symptoms of cerebral palsy that would interfere with her daily functioning, and so the service dog was an essential component of her daily living. The ADA has specific regulations under Title II that address the requirements for public entities in allowing the presence of service animals in Title II facilities. So the parents thus pursued an ADA Title II action against the school district for their failure to allow the girl to bring her service animal to accompany her to class. Now, if you don't know anything about service animals, in order for them to function appropriately and to function effectively for an individual with a disability, that service animal needs to be with the person throughout the day. Long gaps in togetherness with the individual with a disability and their service animal will lessen the effectiveness and functioning of the service animal's ability to help the individual with a disability, which is why it was so important for this 13-year-old girl to be able to have her service animal accompany her to class every day in order for her service animal to serve her effectively throughout her entire day, even when she's home from school and on the weekends, that service animal needed to be spending all day long with her, so this was a really essential need of this child was to be able to bring her service animal to class. So because service animals are directly covered by Title II of the ADA, that is why her parents pursued this claim. There was a decision, eight-zero majority decision authored by Justice Kagan, where the court held that the plain language of the exhaustion requirement in the IDEA only applies to remedies that are available under that statutory scheme, which is entirely structured around ensuring the provision of a FAPE. It's entirely structured around providing educational related services to an individual with a disability. So if a lawsuit is not seeking relief for a denial of a FAPE, then it is not seeking an available remedy under the IDEA, and then exhaustion is not required, and an individual may pursue a federal claim under the ADA. So what does this mean exactly? The Supreme Court provided two questions to consider when answering whether the gravamen of the ADA complaint is actually about a denial of a free appropriate public education. The first question is, could the plaintiff have brought essentially the same claim if the alleged conduct occurred at a public facility that was not a school? So for example, if she had tried to bring her service animal to a public library, and her and her service animal were denied access, could her parents have brought an ADA claim against that public school library? Answer would be yes in this case. The second question is, could an adult at the school have pressed essentially the same grievance? So say the secretary of the school was blind, and was required to have her service animal with her whenever she went to work at the school, if the school had not allowed this secretary to bring in her service animal, could that secretary have brought an ADA claim against the school? The answer? Yes, so if you can answer those two questions as yes, then essentially this is not about denial of a free appropriate public education, but is instead a claim under the ADA for denial of access for a service animal. Now, these two same questions would apply even if we're not talking about a service animal, and so those are the two questions that the Supreme Court posed to determine whether exhaustion is required or not, and this case, the court ultimately remanded and on remand, both summary judgment motions of both parties were denied because there were still questions of fact that were relevant to the two questions that the Supreme Court had posed. So post Fry, there is an eight circuit case involving plaintiffs who are an organization and parents of children with disabilities who sought to enjoin an Iowa law prohibiting mask requirements in schools, so this obviously came during the time of COVID. So the allegations of the complaint were based on the ADA, and Section 504 of the Rehabilitation Act, Section 504, because the schools received federal funding. The question was were plaintiffs required to exhaust their administrative remedies first? So to answer this question, the Eight Circuit examined the two questions posed by the Supreme Court in Fry. First, could plaintiffs have brought the same claim if this wasn't a school? The court answered yes, so if this was involving masking requirements, say in again, in a public library, could plaintiffs have brought that same claim? So the court here said yes. Could an adult have brought the same claim? The court answered yes, so for instance, if an adult, who had some kind of medical condition, brought this claim on the prohibition on masking requirements, could they have brought that same claim under the ADA? And the court again, said yes. So the court thus found that the claims were not about anything covered by the IDEA. This wasn't about educational services, right? One student even had asthma and no educational services under the IDEA were ever needed to accommodate this child's asthma. The court found that the plaintiffs were entitled to reasonable modification in the policy, and they issued a preliminary injunction, but they only issued the preliminary injunction to schools that were attended by the plaintiffs, which were students with disabilities, not all schools. So the bottom line is that most children with disabilities will be covered by the IDEA and receive services from the public school under that law, but for students who are pursuing discrimination claims that aren't directly related to education services, so think about architectural barriers, service animals, or policies that discriminatorily impact individuals with specific disabilities, those claims the ADA and Section 504 are the laws that are likely to govern, and as a result, exhaustion of administrative remedies is not likely required, and why this is important is because the exhaustion of administrative remedies is a process that can take a lot of time. There are several steps to bringing these claims at the administrative level to having hearings with the first line administrative level, having to appeal multiple times through the administrative process. That's all very time consuming, and if you have a claim that is ultimately not covered by the IDEA, it doesn't make sense that you would have to go through that exhaustion process, and delay your ability to receive relief since relief can't be provided by the IDEA, it can only be provided by the ADA or Section 504, it makes sense to be able to, in those cases, bypass the administrative process so that you can pursue that claim and get relief sooner through a lawsuit under the ADA or Section 504. Okay, so we're gonna move on to the ADA and higher education. As an initial matter, it is important to know that, when it comes to any public or private post-secondary school that receives federal funding, which is almost all of them, Section 504 of the Rehabilitation Act applies, but because the substance of Section 504 and the ADA are essentially the same, we will be talking mostly in the ADA context; however, please note that section 504 regulations have specific provisions that apply to post-secondary institutions, and you can find that in Title 34 of the Code of Federal Regulations. The application and interpretation of these regulations; however, align with those under both Titles II and Title III in the higher education context. So Title II of the ADA covers any public post-secondary schools, specifically public colleges and universities that are funded by the state. Title III of the ADA covers any private, non-religious post-secondary schools, specifically any private institution, college, or university. Title III also has a specific provision that governs private entities that offer examinations and courses that are related to applications, licensing, certification, or credentialing for secondary or post-secondary education, professional, or trade purposes. Generally, the same principles will apply under both Title II and Title III in the higher education context. The fundamental obligation of higher education entities, whether a Title II or a Title III entity is to not exclude qualified individuals with disabilities from participating in the services, programs, or activities of the covered entity, not to deny those persons the benefits of the services, programs, or activities of that covered entity, and not subject them to discrimination by reason of their disability. A qualified individual with a disability in the higher education context is one who meets the academic and technical standards required for admissions or participation in the institution's education program or activity. That's covered specifically by regulation, and when determining whether an individual is a qualified person with a disability in the higher education context, the higher education entity must consider whether the student can meet the qualifications with or without reasonable modifications to policy, practices, and procedures, so if someone has a disability and that disability otherwise would make them ineligible, but they can get a reasonable accommodation that would then allow them to meet the eligibility requirements, that means that they are still a qualified individual with a disability. But if the requested modification would fundamentally alter the higher education's program, then that is a defense to granting the modification. So this analysis is very similar to that under Title I of the ADA with respect to employment, which had been covered in my first ADA CLE course. So to give you more information on what this means in the higher education context, let's talk briefly about Southeastern Community College v. Davis. So this case concerned Francis Davis, who was a licensed practical nurse, so an LPN. She had a bilateral sensory neural hearing loss, and she sought admissions into a registered nursing program at Southeastern Community College in North Carolina. Even with the hearing aid to communicate effectively with others, Davis had to rely on her lipreading skills looking directly at whomever was speaking with her. She could not, for example, understand individuals such as doctors in the surgical theater who must wear surgical masks. After interviewing Davis and consulting others, the college denied her admissions on the ground that she could not safely perform some essential aspects of an RN, and then Davis alleged that this exclusion violated Section 504. The ultimate question in Southeastern was whether Davis was an otherwise qualified individual with disability with regard to admissions to the RN program. In exploring this question, the court had been presented with two quite different views on the scope of the protections provided under Section 504, in part owing to the fact that the regulations implementing Section 504 came out between the time the matter was heard in the District Court and the matter was heard in the Court of Appeals. So in the view of the District Court, only those individuals with disabilities who can meet the admissions requirement of a college in spite of his or her disability were protected from disability discrimination. This interpretation of Section 504 would've protected individuals with disabilities from purposeful bias or stereotype based on discrimination, but not much more. According to the Appellate Court; however, in light of administrative regulations that had been promulgated while the appeal was pending, Section 504 required Southeastern to reconsider plaintiff's application for admissions to the nursing program without regard to her hearing ability. This interpretation of Section 504 would've excused individuals with disabilities from having to meet many requirements that colleges considered essential. Finding for the college; however, the Supreme Court concluded that an otherwise qualified person is one who is able to meet all of the program's requirements in spite of his disability. The court also emphasized that Section 504 imposed no requirement upon an educational institution to lower or to affect substantial modifications of standards to accommodate a disabled person, so furthermore, the court laid out two important principles that remain a central part of disability law. First, the court emphasized that qualification standards that result in a denial of participation by an individual with a disability must be necessary or essential and necessary or essential to the qualifications to get into the program, and then second, the court asks whether there is any affirmative action, such as a modification accommodation or auxiliary aid, that the college is required by Section 504 to undertake that would enable the plaintiff, Davis, to meet these necessary requirements and to become an individual with a disability otherwise qualified for admissions to the RN program. Although she essentially lost, the Supreme Court did set the stage for the development of the reasonable accommodations doctrine that would prove to be central to the law of disability discrimination. So in other words, because of her lip reading necessity, and because she was unable to lipread when people were wearing masks, and the program did not find that there was an accommodation that would allow her to pass the course without people wearing masks, ultimately she was found to be not qualified, but the Supreme Court did emphasize that reasonable modifications to policies, practices, and procedures and other accommodations need to be considered when determining whether someone is qualified. So now we know that there are masks that you can wear that have the clear plastic in front that would allow people who need to lip read to be able to lip read while someone is wearing a mask. We know that exists because of COVID, right, and that would've be an accommodation maybe that would've allowed Davis to be qualified for this program, but, at that time, she did lose the case, but that's just important principle to keep in mind is the fact that you have to look at whether the individual is qualified with or without a reasonable modifications of policies, practice and procedures. If there is a reasonable accommodation that can provide an individual with the ability to essentially meet all the qualification requirements, then that has to be taken to into account unless that modification would fundamentally alter the higher education's program. So let's talk about reasonable accommodations. So the main crux of ADA claims in the higher education context involve students requests for reasonable accommodations. Now, I'm using the term reasonable accommodations because that is the term most lawyers, school officials, and courts use, but I want you to understand that the actual text of Titles II and III and their accompanying regulations do not use the term reasonable accommodations. That actually comes from Title I of the ADA. The correct terminology would be either reasonable modifications in policies, practices, or procedures, or the provision of auxiliary aids and services, depending on the disability and the accommodation request in question. I will use the term reasonable accommodations oftentimes for shorthand because it is the most common term used in this context. So the types of reasonable accommodations are varied and unique depending on the student's disability. Many students with certain learning disabilities, documented anxiety conditions, sensory disabilities, or other disabilities might get extra time on tests, might get a quiet location to conduct those tests, might get the ability to use a note taker in class, or the ability to record class lectures. The requirement for each accommodation request is to provide documentation from a medical or educational professional about the existing disability and the reason and need for the specific accommodation requested. It's important to understand that the goal of reasonable accommodations is not to provide students with disabilities an advantage, but instead to put them on even playing ground with students without disabilities. The goal is to ensure that a student's performance in class or on tests or on assignments is being evaluated based on their knowledge, skills or abilities, not their disabilities. So this might be why someone with dyslexia might need more time on a test, otherwise they can't fully test their knowledge of the material because they wouldn't have enough time to get through the material due to the extra time needed to read and write the material because of their disability, which is dyslexia. This might also be why someone with ADHD might need a quiet and isolated location to take their tests, otherwise they couldn't get through the testing materials without getting distracted by noises or other people in the room. This also might be why someone who is deaf might need a qualified note taker or a sign language interpreter during class, so they don't miss any of the lecture material or class discussion. This also might be why someone with a documented severe anxiety disorder might be able to perform an in-class presentation alone, with just the teacher present, instead of in front of all their peers, as a student wouldn't be able to showcase their presentation skills due to the fear and anxiety of performing in front of their peers, that causes them to perhaps freeze up, stutter, or be otherwise unable to perform. And this also might be why someone who is blind might need access to accessible electronic class materials, so they may use a screen reader to read and access the class materials. The bottom line is that accommodations must be reasonable within the unique circumstances of that degree program or class and the student's specific disability and needs. In a ADA cases, in higher education context, we often see courts according more deference to the decision of the school than they would to the decisions of other state or local government entities or other private businesses, so this deference is particularly notable in the admissions process or when determining course or graduation requirements. So for instance, if an individual is asking for an accommodation to not take a certain class, like for instance, physical education because they have a disability which keeps them from being able to complete that class, and they want a waiver to taking that class in order to graduate because the school requires a physical education class in order to graduate, that would be an instance where a court might give more deference to the university in deciding why a physical education component can't be waived as part of a graduation requirement; however, the case law has shown a less deference is accorded when students are requesting modifications in the classroom or with testing conditions like the examples I have provided you a few slides back. These modifications are more similar to the modification students might have received in primary or secondary schools under the IDEA to accommodate learning disabilities, or to provide auxiliary aids, or services for certain disabilities. So now we are going to move on to the provisions under Title III, applying to examinations and courses. So there's a specific provision at 28 CFRR 36.309, which covers examinations and courses. It requires that any entity 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. The legislative history of this provision explains that it was adopted in order to assure that persons with disabilities are not foreclosed from educational, professional, or trade opportunities because an examination or course is conducted in an inaccessible site or without an accommodation. While the Title III regulations cover examination and courses in detail, under all three laws, Section 504, Title II, and Title III, rules governing non-discrimination in examination and courses apply across the board. So although the specific provisions of examinations and courses are provided in the regulations for Title III, the Department of Justice has said that those requirements apply across the board, so that includes under Title II entities or entities covered by Section 504. So this includes pre-admissions tests given by educational institutions, as well as tests given by other entities such as those entities that administer the SAT, the GRE, the LSAT, or the MCAT, and it covers those entities that administer examinations, credentialing, professional certifications, things like that, like those entities that administer bar examinations, for instance. All entities providing examinations under these laws must administer the exams in a manner that will reflect accurately the individual's aptitude or achievement level, rather than reflecting the individual's disability, so in essence, the law requires that to ensure accessibility for people with disabilities, entities offering credentialing examinations are required to offer modifications to an examination or to provide appropriate auxiliary aids if needed so as to best insure that the examination measures an individual's aptitude and achievement rather than the individual's disability. These modifications and auxiliary aids are commonly referred to as testing accommodations. Testing accommodations are modifications to the regular testing environment and auxiliary aids and services that allow individuals with disabilities to demonstrate their true aptitude or achievement level on standardized exams or other high stakes tests, so for instance, I had a student who was blind, and I remember her talking to me specifically about the trouble that she had taking the the MPRE, which is the ethical examination that most of us had to take in order to be licensed in certain states, so she had to go through this onerous process of requesting the entity administering the exam to ensure that there would be software installed that would allow her to access screen reader technology so that she could take the exam. So she got this, went through this whole approval process, showed up to take the exam, and the software did not work properly. She was unable to take the exam, because she did not have software that would access through a screen reader the questions that she had to answer for the MPRE. So this is the type of testing accommodation that we're talking about. This is an example of a testing accommodation, and this is particularly an auxiliary aid that was needed that would allow her to demonstrate her true aptitude and achievement on the MPRE, but was unable to because the accommodation she requested, although granted, was not actually provided. These are the types of things that happen frequently to individuals who are taking these examinations and courses, so that's just one example, one particularly egregious example that I wanted to mention. So this came up a lot in the context, which we should all be familiar with, which is taking the law school admissions test, LSAT, which is administered by the Law School Admissions Council. So the Department of Justice entered into a protracted litigation with the Law School Admissions Council about its flagging policy and documentation requirements for testing accommodations, so this case was ultimately resolved through a Consent Decree, but I want to talk about the particular details about the flagging policy and the documentation requirements that LSAC was requiring before this Consent Decree was entered. So first, with respect to flagging, flagging is the policy or practice of reporting scores from exams taken with testing accommodations by including a statement or notation indicating that the exam was taken under non-standard conditions. Such flagging violates the ADA. So what the Law School Admissions Council was doing is that when it reported the individual's LSAT score to the various schools that the individual had applied to, that score would come through with a notation, a flag, that would tell the schools that that individual took the test under non-standard conditions, meaning that they took it by way of a testing accommodation. So because this flagging violates the ADA, the United States alleged that it did so for the following reasons. So well first, flagging suggests that the scores of the test taker are not valid or comparable to scores of other test takers, when the sole purpose of the testing accommodations is to level the playing field. Flagging also singles out persons with disabilities and announces that the test taker has a disability. So when the schools receive the score with the flag, they then know that that student in question not only took the test with an accommodation, but that essentially also announced that that student has a disability. And LSAC is required to administer the LSAT, so as to best ensure that the results reflect the individual skill and achievement level, not their disability. And because of this, flagging may discourage test takers with disabilities from exercising their rights to testing accommodations under the ADA for fear of discrimination. So if you know that your score's gonna be flagged when it's sent to the various schools you're applying to, and that flagging essentially announces that you have a disability, and you're worried about bias and discrimination because of your disability, you're not gonna ask for a testing accommodation, which you have a right to, and your score then might not ensure that the results actually reflect your individual skills and achievement level because you did not seek an accommodation for fear of that discrimination, so that is another reason why flagging can violate the ADA because it does interfere with an individual's ability to exercise their rights under the law. So essentially, the district court found that the Law School Admission Council's practice of flagging necessarily announces an individual's disability above all else, and this practice cannot be reconciled with the ADA's mandate that the testing entities must administer exams so as to best ensure that exam result reflect individual skill and achievement level and not their disability. This result in itself interferes with any individual in the exercise or enjoyment of or on account of his or her having exercised or enjoyed any right granted or protected by this chapter. Now the second claim centered around the LSAC's documentation requirements, so the LSAC litigation also alleged that the LSAC required excessive documentation of disability in violation of the ADA. The issue was what constitutes reasonable documentation under the law. The DOJ took the position that to be reasonable, the following needed to be met. Documentation must be reasonable and limited to the need for the accommodation requested. The testing entity must respond in a timely manner to request for testing accommodations. The testing entity should accept documentation by a qualified professional with personal familiarity and not give more weight to reviewers from the testing agency themselves. So what was happening was that the individuals were submitting documentation from their own qualified medical professional who had personal familiarity with the individual's disability and their needs, and were instead then submitting that to a reviewer from a testing agency that had never met, had no familiarity with the person in question, and was giving more weight to the reviewer from the testing agency, someone that they themselves had hired, on whether the person should get an accommodation based on that documentation or not. So the DOJ said that that was inappropriate and that they should accept documentation and not give more weight to the reviewers that the testing agency had hired. The DOJ also took the position that the testing entity must give considerable weight to past documentation, so that is documentation that is used for accommodations in higher education or secondary education. So if you are a person with dyslexia and you have been receiving accommodations and testing throughout your secondary education, throughout your higher education, and these are accommodations that you had received throughout the course of your education in that context, then the testing entity should give considerable weight to that past documentation that you had used to support your accommodations in those other educational contexts. And finally, the DOJ took the position that there should be no burdensome follow up requests. So essentially what was happening is that the LSAC documentation requirements ended up being so onerous, so inefficient, individuals were having their accommodations, accommodations they had been receiving throughout their whole lives denied, they would be subject to onerous documentation requirements, requiring additional documentation that they had in addition to that that they had used in earlier contexts, such as secondary or post-secondary education context. They had to go and spend money to talk to other professionals to get further documentation, so this became very onerous. The testing entities, the LSAC wasn't responding in a timely manner. People would miss the date of the test because LSAC did not respond to their request, did not resolve the request in a timely manner, so people were having the test delayed to the next time, and yeah, it was just becoming such quite a problem. So ultimately, this was resolved, as I mentioned earlier, through a Consent Decree. This Consent Decree went into effect on June 2nd, 2014. The provision of the Consent Decree included a ban on flagging, so no more flagging, streamlined evaluation of requests for testing accommodations, a $7.73 million damages that were to be dispersed to individuals who had been harmed by this practice, and the creation of a panel to establish what is known as the best practices. Ultimately, all this background isn't necessarily relevant. There has been some post Consent Decree litigation on some of these issues, especially with the LSAC not following the provisions of the Consent Decree that have since, I believe, been resolved. Bottom line, however, is if you have a client who is having trouble getting testing accommodations of any sort, you should consult both the testing examinations regulations under 29 CFR 36.309 and, where applicable, the Consent Decree in the LSAC case. The process for getting testing accommodations should be timely and not overly burdensome, and while documentation is required about the disability and how it is related to the requested accommodation, the documentation requirements must be reasonable. It was my pleasure to provide you with this information today. I hope you leave this course feeling more knowledgeable about the requirements under the ADA and related laws that involve students and test takers with disabilities. If you have clients who are dealing with education based discrimination, I urge you to further consult the Department of Education and the Department of Justice websites for further information on these laws, and for resources that will help you best represent your clients. Thank you.

Presenter(s)

BWJ
Brandy Wagstaff, JD
Adjunct Professor
George Mason University School of Law

Course materials

Handout

Credit information

Jurisdiction
Credits
Available until
Status
Alabama
  • 1.0 general
Pending
Alaska
  • 1.0 voluntary
January 31, 2025 at 11:59PM HST Available
Arizona
  • 1.0 general
January 31, 2025 at 11:59PM HST Available
Arkansas
  • 1.0 general
January 31, 2025 at 11:59PM HST Approved
California
  • 1.0 general
January 31, 2025 at 11:59PM HST Approved
Colorado
  • 1.0 general
December 31, 2025 at 11:59PM HST Approved
Connecticut
  • 1.0 general
January 31, 2025 at 11:59PM HST Available
Delaware
  • 1.0 general
Pending
Florida
  • 1.0 general
October 31, 2024 at 11:59PM HST Approved
Georgia
  • 1.0 general
Pending
Guam
  • 1.0 general
January 31, 2025 at 11:59PM HST Available
Hawaii
  • 1.0 general
January 31, 2025 at 11:59PM HST Approved
Idaho
  • 1.0 general
Not Offered
Illinois
  • 1.0 general
February 9, 2025 at 11:59PM HST Approved
Indiana
  • 1.0 general
Pending
Iowa
  • 1.0 general
Pending
Kansas
  • 1.0 general
Pending
Kentucky
  • 1.0 general
June 30, 2024 at 11:59PM HST Approved
Louisiana
  • 1.0 general
Pending
Maine
  • 1.0 general
December 31, 2026 at 11:59PM HST Self-apply
Minnesota
  • 1.0 general
March 15, 2025 at 11:59PM HST Approved
Mississippi
  • 1.0 general
Pending
Missouri
  • 1.2 general
January 31, 2025 at 11:59PM HST Available
Montana
  • 1.0 general
January 30, 2026 at 11:59PM HST Approved
Nebraska
  • 1.0 general
July 5, 2024 at 11:59PM HST Approved
Nevada
  • 1.0 general
December 31, 2026 at 11:59PM HST Approved
New Hampshire
  • 1.0 general
January 31, 2025 at 11:59PM HST Available
New Jersey
  • 1.2 general
January 16, 2025 at 11:59PM HST Approved
New Mexico
    Not Offered
    New York
    • 1.2 areas of professional practice
    January 31, 2025 at 11:59PM HST Available
    North Carolina
    • 1.0 general
    Pending
    North Dakota
    • 1.0 general
    January 31, 2025 at 11:59PM HST Available
    Ohio
    • 1.0 general
    Pending
    Oklahoma
    • 1.0 general
    Not Offered
    Oregon
    • 1.0 general
    February 14, 2026 at 11:59PM HST Approved
    Pennsylvania
    • 1.0 general
    January 16, 2026 at 11:59PM HST Approved
    Puerto Rico
    • 1.0 general
    Pending
    Rhode Island
      Not Offered
      South Carolina
      • 1.0 general
      Pending
      Tennessee
      • 1.0 general
      Pending
      Texas
      • 1.0 general
      Pending
      Utah
      • 1.0 general
      Not Offered
      Vermont
      • 1.0 general
      January 31, 2025 at 11:59PM HST Approved
      Virginia
      • 1.0 general
      Not Offered
      Virgin Islands
      • 1.0 general
      January 31, 2025 at 11:59PM HST Available
      Washington
      • 1.0 law & legal
      January 30, 2028 at 11:59PM HST Approved
      West Virginia
      • 1.2 general
      June 30, 2024 at 11:59PM HST Approved
      Wisconsin
        Not Offered
        Wyoming
          Not Offered
          Credits
          • 1.0 general
          Available until
          Status
          Pending
          Credits
          • 1.0 voluntary
          Available until

          January 31, 2025 at 11:59PM HST

          Status
          Available
          Credits
          • 1.0 general
          Available until

          January 31, 2025 at 11:59PM HST

          Status
          Available
          Credits
          • 1.0 general
          Available until

          January 31, 2025 at 11:59PM HST

          Status
          Approved
          Credits
          • 1.0 general
          Available until

          January 31, 2025 at 11:59PM HST

          Status
          Approved
          Credits
          • 1.0 general
          Available until

          December 31, 2025 at 11:59PM HST

          Status
          Approved
          Credits
          • 1.0 general
          Available until

          January 31, 2025 at 11:59PM HST

          Status
          Available
          Credits
          • 1.0 general
          Available until
          Status
          Pending
          Credits
          • 1.0 general
          Available until

          October 31, 2024 at 11:59PM HST

          Status
          Approved
          Credits
          • 1.0 general
          Available until
          Status
          Pending
          Credits
          • 1.0 general
          Available until

          January 31, 2025 at 11:59PM HST

          Status
          Available
          Credits
          • 1.0 general
          Available until

          January 31, 2025 at 11:59PM HST

          Status
          Approved
          Credits
          • 1.0 general
          Available until
          Status
          Not Offered
          Credits
          • 1.0 general
          Available until

          February 9, 2025 at 11:59PM HST

          Status
          Approved
          Credits
          • 1.0 general
          Available until
          Status
          Pending
          Credits
          • 1.0 general
          Available until
          Status
          Pending
          Credits
          • 1.0 general
          Available until
          Status
          Pending
          Credits
          • 1.0 general
          Available until

          June 30, 2024 at 11:59PM HST

          Status
          Approved
          Credits
          • 1.0 general
          Available until
          Status
          Pending
          Credits
          • 1.0 general
          Available until

          December 31, 2026 at 11:59PM HST

          Status
          Self-apply
          Credits
          • 1.0 general
          Available until

          March 15, 2025 at 11:59PM HST

          Status
          Approved
          Credits
          • 1.0 general
          Available until
          Status
          Pending
          Credits
          • 1.2 general
          Available until

          January 31, 2025 at 11:59PM HST

          Status
          Available
          Credits
          • 1.0 general
          Available until

          January 30, 2026 at 11:59PM HST

          Status
          Approved
          Credits
          • 1.0 general
          Available until

          July 5, 2024 at 11:59PM HST

          Status
          Approved
          Credits
          • 1.0 general
          Available until

          December 31, 2026 at 11:59PM HST

          Status
          Approved
          Credits
          • 1.0 general
          Available until

          January 31, 2025 at 11:59PM HST

          Status
          Available
          Credits
          • 1.2 general
          Available until

          January 16, 2025 at 11:59PM HST

          Status
          Approved
          Credits
            Available until
            Status
            Not Offered
            Credits
            • 1.2 areas of professional practice
            Available until

            January 31, 2025 at 11:59PM HST

            Status
            Available
            Credits
            • 1.0 general
            Available until
            Status
            Pending
            Credits
            • 1.0 general
            Available until

            January 31, 2025 at 11:59PM HST

            Status
            Available
            Credits
            • 1.0 general
            Available until
            Status
            Pending
            Credits
            • 1.0 general
            Available until
            Status
            Not Offered
            Credits
            • 1.0 general
            Available until

            February 14, 2026 at 11:59PM HST

            Status
            Approved
            Credits
            • 1.0 general
            Available until

            January 16, 2026 at 11:59PM HST

            Status
            Approved
            Credits
            • 1.0 general
            Available until
            Status
            Pending
            Credits
              Available until
              Status
              Not Offered
              Credits
              • 1.0 general
              Available until
              Status
              Pending
              Credits
              • 1.0 general
              Available until
              Status
              Pending
              Credits
              • 1.0 general
              Available until
              Status
              Pending
              Credits
              • 1.0 general
              Available until
              Status
              Not Offered
              Credits
              • 1.0 general
              Available until

              January 31, 2025 at 11:59PM HST

              Status
              Approved
              Credits
              • 1.0 general
              Available until
              Status
              Not Offered
              Credits
              • 1.0 general
              Available until

              January 31, 2025 at 11:59PM HST

              Status
              Available
              Credits
              • 1.0 law & legal
              Available until

              January 30, 2028 at 11:59PM HST

              Status
              Approved
              Credits
              • 1.2 general
              Available until

              June 30, 2024 at 11:59PM HST

              Status
              Approved
              Credits
                Available until
                Status
                Not Offered
                Credits
                  Available until
                  Status
                  Not Offered

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