Disabling Academic Standards: Learning Disabilities and Time-and-a-Half Testing

Joshua F. Drake

Before the law, a person with a disability is anyone “who has a physical or mental impairment that substantially limits one or more major life activit[ies].”1 That same law explains that major life activities:

include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.2

This helpful list gives scope to the word “major.” Breathing—check. Breathing is a major life activity. But concentrating? Concentrating seems to belong to a different category. Things like learning, reading, concentrating, thinking, and communicating must be included so that the law and its attendant entitlements may apply not only to physical but also to mental—and therefore learning—disabilities.

National authorities estimate that as many as twenty percent of students have a learning disability.3 In light of the legal definitions, this is unsurprising. Given the many ways learning, reading, concentrating, thinking, and communicating can be substantially limited, one wonders that the percentage is no higher. What makes a limitation “substantial”—presumably what separates a learning disability from other forms of intellectual weakness—is medical diagnosis, not law.4 Diagnosis of a learning disability involves a set of psychological and academic tests described by the American Psychiatric Association. Students whose results are below a certain threshold or whose psychological attributes fit a certain description are diagnosed with specific learning disabilities. There’s even a catch-all with the unwieldly name “Learning Disorder Not Otherwise Specified.”5

Diagnosis is important because it is the gateway to certain entitlements. These entitlements become available to a learning disabled student when he reaches college age. Under the Rehabilitation Act of 1973 and its later revisions as the Americans with Disabilities Act (in 1990 and 2008), students suffering from learning disabilities cannot be the subject of discrimination when applying to college. They are also privileged to certain academic modifications once they arrive there:

Modifications may include changes in the length of time permitted for the completion of degree requirements, substitution of specific courses required for the completion of degree requirements, and adaptation of the manner in which specific courses are conducted.6

In practice, learning disabled students receive extra time—up to three times the allotted time—to take their tests at college. They can use “cue sheets” with mnemonic acronyms that help bring to mind the material of the test. They may take tests in isolated environments to minimize distraction. The college may even make course substitutions to allow students to avoid certain classes, say ones in language or mathematics, in which a student’s disability might make him unsuccessful. All of this is dependent on the specific disability of the student and the college’s own policy—informed as both are by the expectations of the law, court history, and the liability of litigation.

Nevertheless, according to the same law, “academic requirements that are essential to the instruction being pursued by such student or to any directly related licensing requirement will not be regarded as discriminatory.”7 Lawmakers were presumably aware that at a certain point, academic accommodations for those with learning disabilities undermine the academic evaluation—that some parts of evaluation are essential and that some are nonessential.

Notice, however, that the law suggests that the length of time permitted for completion of degree requirements is ipso facto nonessential to the instruction being pursued. It suggests this by including “changes in the length of time permitted for the completion of degree requirements” as the very first example of a “modification.” The phrase “time permitted for the completion of degree requirements” is open-ended. It has been understood in such a way as to justify any number of changes in the time constraints of evaluations—from extensions on papers and projects to extended times for tests and exams. In practice, if a student has a diagnosed disability that makes it hard for him to complete something in the given time, he is allowed to have more time, howsoever important time might be in the evaluation. The law’s suggestion for accommodations, along with institutional practices, has created a precedent that is not likely to be challenged. Nevertheless, the practices overlook a real ambiguity in the law.

The examples of modifications listed in the law—modifications that ‘may’ be included—are extra time, course substitutions, and a different manner of conducting the course. But these are so inclusive as to suggest an internal contradiction. It is hard to imagine what academic requirements would be “essential to the instruction” if these are not. For instance, if time is nonessential to degree requirements, why limit any student with time? The Code of Federal Regulations does not tell us what is “essential to instruction?” Case law has been equally unclear.

In Wynne v. Tufts University School of Medicine (1991) a medical student with a learning disability appealed his dismissal from the program on the grounds that his disability prohibited his success on multiple choice questions.8 The court initially ruled in favor of the student. Tufts returned to the court, explaining the importance of multiple choice questions, and only then was the school’s decision upheld.

In a class action lawsuit filed against Boston University, students demanded, among other things, that the university allow a course substitution to waive the language requirements for students with learning disabilities.9 The court required the university to undergo a thorough committee evaluation to decide whether or not it could require all liberal arts students, regardless of disability, to submit to a language and math requirement. A later court case found the university in compliance with law when its committee review concluded that the foreign language requirement was essential for a liberal arts degree.

Notice that the decision of the faculty at large, which approves curriculum requirements, was not sufficient to justify the language and math requirement. Only a thorough committee investigation would satisfy the court. When the courts were sufficiently impressed with the university’s method for determining essential academic requirements, they relented. Based on this precedent, a faculty approved curriculum, test, or assignment is not enough to demonstrate what is essential to instruction. Some supererogation is required beyond normal university review.

After a protracted case against the Regents of the University of California, the court pronounced a helpful summary:

The deference to which academic institutions are entitled when it comes to the ADA is a double-edged sword. It allows them a significant amount of leeway in making decisions about their curricular requirements and their ability to structure their programs to accommodate disabled students. On the other hand, it places on an institution the weighty responsibility of carefully considering each disabled student's particular limitations and analyzing whether and how it might accommodate that student in a way that would allow the student to complete the school's program without lowering academic standards or otherwise unduly burdening the institution.10

Final rulings miss a more fundamental point. Colleges have little incentive to fight these legal battles, since doing so costs them not only legal fees but also the tuition dollars of learning disabled students (perhaps twenty percent of the student population) as well as their political allies. The negative press of a court case against a disabled student harms institutions whose income is dependent in part on public sympathies. Even when an academic institution is convinced that an academic accommodation will jeopardize the essential nature of its evaluation, the institution is unlikely to raise a legal battle against student plaintiffs. A slow erosion of their evaluative system is incalculable. Legal fees and lost tuition are very calculable indeed. There is no law forbidding academic inflation, though there is one that forbids discriminating against the learning disabled. Both are ill-defined but only the latter has immediate consequences.

At the classroom level, professors have even less incentive to scrutinize accommodations to see if they jeopardize the essential nature of their class. Professors know that their pay will not be docked if they allow a disabled student to take a test with more time, or with a cue sheet, or in a distraction free environment. They know that any resistance to a student’s request—or more probably a request made on a student’s behalf by the legally mandated accommodations office—will lead to unpleasant conversations with administration. If a professor’s scruples tell him that the accommodation essentially undermines the evaluation, as it might in a high level calculus exam where time is often of the utmost importance, he has every incentive to tell his scruples to be quiet. But while motive to fight legal battles at the college level may be small, colleges and universities are not the only ones affected by accommodations for learning disabilities. The College Board, the Law School Admissions Council, and various state medical boards face serious financial pressure to preserve the essential nature of their testing instruments. When colleges stop trusting a standardized test, students stop paying to take it. Consequently, legal battles from that quarter have been livelier, and the courts have nearly always sided against the testing institution.

Standardized tests have long offered time-and-a-half versions to learning disabled students, but initially these offerings were flagged as such, so admissions officers at colleges could interpret scores in light of the supposed difference between tests taken under different time limits. However, in a 1999 case that was settled out of court, a physically disabled student sued the Educational Testing Service (the company that makes, among other tests, the SAT) because his test was flagged as “non-standard.”11 After this important settlement, testing agencies began to eliminate any indication that disabled students received a special form of the test or enjoyed special accommodations. By 2004 most testing agencies had removed the flagging of special tests under legal pressure. The LSAT was the one test that continued the practice. The Law School Admissions Council also required much more proof from students with learning disabilities who wanted accommodation. This led to a 2012 lawsuit.12 The Department of Justice became involved and the case became protracted. In 2018 LSAT was held in contempt of court. In the face of recent legal pressure, the SAT now automatically approves most applications for testing accommodations. The number of accommodated tests has increased steadily, year after year. This is because the courts consistently find that testing facilities do not have it in their prerogative to decide which requirements are essential to the service they evaluate. The length of time in which a test is given is nonessential in the eyes of the law.

Because of the court’s rulings against the various testing agencies, colleges and universities have likewise assumed that time is to be treated as nonessential in academic evaluations. Colleges can do no other, in light of the court’s inconsistency. Whether colleges and universities would be found to have the right to deem time an essential element in evaluation is irrelevant, since no colleges wish to risk the legal dangers that might come if they did.

The confusion in the law—its allowance for tests that evaluate the essential elements of the course of study and refusal to allow institutions to determine what those essentials are—seems to come from a confusion about the very nature of academic evaluations, and especially the way time relates to those evaluations.

Learning Disabilities and Evaluations

Every debate about the legitimacy of academic accommodations tends to bring up a question about the legitimacy of learning disabilities in general. It is supposed that an attack on academic accommodations is an attack on the legitimacy of learning disabilities. But this is not necessarily so.

If I sit down on a stool and it collapses beneath me, it matters very little to me whether it did this because of a flaw in design, because of sloppy workmanship, or because it has been broken. In the instant I needed it, it failed. Carpenters and craftsmen may wish to discover which of the three causes were the ones that landed me on the floor, but none of these discoveries interest me at that moment. I was not evaluating the stool in that way. I was evaluating only its ability to support my weight. In the same way, although perhaps even more painfully, if a student fails an academic evaluation it matters very little if it were a bad night’s sleep, a distraction in home life, a lack of preparation, a lack of innate skill, or a learning disability that led to his failure.

Of course, this does not seem fair. We naturally wish we could distinguish between failures due to negligence and failures due to causes outside a student’s control. We wish we could reward industrious students whose weakness of intellect is overcome by hard work. We also wish, were it possible, to penalize gifted students whose laziness is apparent even when their work is good. Indeed, this is partly why we offer a variety of evaluations and a variety of classes. In doing so we satisfy our desires to indicate the variety of academic talents—talents of industry and talents of innate intellect—that our students have. We wish we could avoid penalizing students for failures due to circumstances outside their own control but there is one circumstance outside their own control that we actually do wish to evaluate: innate intellectual ability. It may not be the only thing we evaluate, but we cannot avoid evaluating it. Nor would we wish to. If some ingenious testing method were discovered that would allow us to test a student’s industry alone, with no regard for native intellectual ability, no one would use it. This is because part—though not all—of what we report to future employers and graduate programs is a student’s innate ability to learn. Consider what this means, then, for at least some of the learning disabled.

If a student admits certain kinds of learning disabilities, he may very well be admitting that he does not have one of the things we set out to discover in the first place. If at the onset of a battle, I wave the white flag, I am not likely to be presumed the victor of the battle. If at the onset of a race, I explain that I cannot run well, I am not likely to be given a head start and then told that I run very well indeed. The scientific legitimacy of learning disabilities makes no difference whatsoever in the debate about academic accommodations for the learning disabled. The more scientific the diagnosis, the higher the white flag is raised. That I was born without wings is a scientific certainty. Having thus proved it, I do not thereby gain access to the henhouse.

Time and Academic Credentialing

With that distraction removed, we can now return to the question of whether time is essential to academic evaluations. And certainly, in some academic evaluations, time is less relevant than in others. Most college courses offer a range of assignments with a range of expectations on time, from quick pop quizzes to term papers with flexible due dates. Most teachers wish to reinforce the notion that good work done slowly is better than bad work done quickly. Yes. But good work done quickly is better still. The difference between good fast work and good slow work is important. All our knowledge is time-based in some way. There are reasons to think that time is an essential part of academic evaluations, as it is of every part of mortal life.

In 2005 the College Board administered a study, in light of increasing numbers of time-and-a-half test accommodations.13 The College Board allowed students with learning disabilities and without learning disabilities to take the PSAT with the normal time, with time and a half, and with double time. We might have expected extra time to improve the scores of the learning disabled students and, for those with average scores, it did. What’s more striking—but not at all surprising—is that extra time improved the scores of the non-disabled average student too, and only a little less than the disabled ones. For instance, on the math section average non-disabled students improved by 43 points (of a 760 point test) when they were given time and a half. Learning disabled students in the same group improved by only 8 points more (a difference of about 1 percent). While the study also showed that among the poorest students of either category, extra time made no difference, it also demonstrated that extra time makes a real difference to most middling students—learning disabled or not.

In a helpful collection of existing research, Benjamin Lovett rightly notes that “much empirical research on testing accommodations has focused on a single issue: Do students with disabilities benefit more from accommodations than non-disabled students do?”14 He points out, in an accurate summary of the various empirical studies that “the effects of extended time are certainly not specific to examinees with disabilities—that is, non-disabled examinees usually benefit from extended time.”15 His conclusion here seems a sound one: “there is also evidence that in certain settings (e.g. assessment of reading skills) speed may be important to evaluate.”16

But what if the law practically forbids us to do so? Later, Lovett suggests that eliminating time from all students—regardless of disabilities—when it is nonessential would improve test scores all around.17 No doubt it would. Many of us remember sweating in the last five minutes of an undergraduate exam. Were colleges to assume that time were a noncritical part of the evaluation, they could then eliminate it entirely from the evaluation for everyone. Professors could write rather short tests and allow all students lots of time. Colleges will not do this because we know that time is a critical part of the evaluation. It can be only removed as a relevant barrier. As soon as we remove it on those terms, we admit that the handicapped student is being evaluated not only differently from his peers, but by a somewhat lower standard.

Some might argue that this different standard is a necessity for justice. Is it not cruel that, through no fault of their own, the learning disabled would be otherwise barred from a successful undergraduate career? By this notion, academic accommodations open the university to the learning disabled just as wheel-chair ramps open it to the physically disabled. This would no doubt be true, if we were to assume that an undergraduate education is a universal good. Those of us who make our living from teaching undergraduates may well hope to convince the world that it is a universal good. All our experience tells us that it is not. We have come almost to believe it to be a universal good because we have accepted that some formal academic education is good for everyone. To assume that limitless formal academic education would be good for everyone is a logical leap the results of which are comical. I am a humanist, but have a leisure interest in automobiles. It would only take a few weeks of training with an automotive mechanic to discover how unfit I am for such labor. I would break many expensive parts, skin my knuckles, and spill a lot of oil. This is because, however interested in automotive mechanics, I am especially ill-suited to learn about it. Different people are suited to different sorts of training, irrespective of their personal interests. The university evolved to offer a fairly specialized sort of training to a fairly specialized population. It has, over the centuries, opened up a great deal and to a much broader range of people. It does not follow, however, that it must be opened to those who would not benefit from it. It may seem cruel to set up academic barriers that bar some people from success at university. If they are essential barriers, however, it may in the end be a kindness to set them up. The city of Rome locks the catacombs at night out of kindness for the curious. Like college, some have entered in, never to reemerge. A longsuffering mechanic might allow me to go on breaking car parts indefinitely, but this would hardly be a kindness to me—especially if I were going into irreparable debt to train for a job in which I was ill-suited. Likely, some will say that the learning disabled are suited for the academic pursuits that they take on. Very well. Let them prove it by meeting exactly the same academic expectations.

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