"Accommodations" for the Learning Disabled: A Level Playing Field or Affirmative Action for Elites?
Lerner, Craig S., Vanderbilt Law Review
A growing number of students in American higher education are being diagnosed as "learning disabled" and then using that diagnosis to secure beneficial "accommodations,"such as extra time on exams. These accommodations are often said to be mandated by the Americans with Disabilities Act (ADA). This Article challenges the premise that the ADA necessarily requires educational institutions to provide learning disabled students with any accommodations. The ADA defines "disability" as an impairment that substantially limits a major life activity. Whether one is substantially limited is determined with reference not to one's innate abilities, but to the skills of the average American citizen. Thus, a learning disabled college or law student who fails to live up to his potential, and who reads slower than one would predict given his general mental aptitude, is not disabled as a matter of law, provided he reads at a level comparable to the average American.
Legal requirements aside, it may be appropriate to accommodate learning disabled students, but it is increasingly difficult to distinguish the truly disabled from those simply claiming a disability to gain an advantage. The traditional touchstone of a medical diagnosis as learning disabled, which diverges importantly from the legal definition, is a substantial discrepancy between a person's mental aptitude and academic achievement. Whatever scientific rigor such a diagnosis may once have had, it is now hopelessly indeterminate. Moreover, there is evidence that significant numbers of students, or at least those with the wherewithal and initiative to consult psychologists and lobby school administrators, can secure such an advantageous diagnosis. Drawing upon the concept of agency costs, this Article explores the tension between the interests of administrators of nonprofit educational entities and the interests of the entities themselves. Educational institutions are of course committed to ensuring fairness and academic integrity, but individual educators and administrators may not have sufficient personal incentives to scrutinize requests for accommodations or to tailor those accommodations narrowly to a student's claimed learning disability.
For several decades, college-bound students could have themselves certified "disabled" and then receive miscellaneous "accommodations" on the SATs. Most commonly, these accommodations would include extra time, stretching from an hour to a day, and the right to take the exam in a special location away from the distractions, auditory and visual, that other test takers would encounter in a crowded room. There was, however, an incalculable cost attached to the "disabled" certification: The Educational Testing Service (ETS) would place an asterisk, or "flag," next to all test scores obtained under nonstandard conditions. How much college admissions officers discounted such flagged scores, if at all, was unknown.
All this recently changed. Starting October 1, 2003, the ETS and College Board discontinued the practice of flagging nonstandard test scores.1 College admissions offices will no longer be able to distinguish between a 1500 (3 hours) and a 1500 (6 hours).2
From 1987 to 2000, the number of students receiving accommodations on the SATs quadrupled,3 and approximately 90 percent of the test takers who qualified for accommodations were diagnosed with a "learning disability" or "LD."4 Originating just a few decades ago, the LD diagnosis now subsumes dozens of ailments and imperfections, such as dyslexia (reading difficulties), dyscalculia (computing difficulties), dysgraphia (writing difficulties), dysrationalia (thinking difficulties), cognitive processing deficit (remembering difficulties), and Attention-Deficit/Hyperactivity Disorder (ADHD) (concentration difficulties).5 An entire industry has arisen dedicated to the diagnosis and medication of any student falling short of Einsteinian mental prowess combined with Ghandian spiritual calmness. …