Monday, April 16, 2007

Townsend on Learning Disabilities

New on Westlaw: Nicholas L. Townsend, Framing a Ceiling as a Floor: The Changing Definition of Learning Disabilities and the Conflicting Trends in Legislation Affecting Learning Disabled Students, 40 Creighton L. Rev. 229 (2007). From the introduction:

The ADA licensing exam cases and the No Child Left Behind legislation are in philosophical tension. Recent Supreme Court cases have narrowed the ADA's definition of disability for fear that a broad definition that recognizes too many people as disabled will undermine the Act's potency. No Child Left Behind and its companion legislation, on the other hand, try to integrate children with disabilities into the mainstream of American education instead of drawing a sharp distinction between disabled and non-disabled. Both are policy choices born of good intentions. However, the average person standard, which arises to some extent in both contexts, dangerously shifts the essential meaning of learning disabilities. Measuring learning disability by comparison to the average person instead of an individual's potential is underinclusive, excluding those learning disabled students with high potential from receiving the accommodations they need to realize it. In effect, the average person standard becomes a restriction on their rights. These laws change the definition of learning disabilities in a way that threatens to bar a specific category of high-achieving learning disabled individuals from realizing their potential by placing a ceiling on their right to claim legal protection.

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Blogger Jo Anne Simon said...

As the attorney who tried Bartlett v. NYS Bd of Law Examiners, I believe this tension to be intentional. The refocus on RTI and the so-called comparison to the "average person" as one that is swayed by test scores fundamentally misconstrues the ADA's purpose and the federal guidance on how a disability is to be analyzed. The ADA conceptualizes disability as including ability and talent, while efforts to re-frame in comparison with the average person (using the bell curve) do the opposite, essentially claiming that disability equals incompetence.

The other problem with this approach is that the tests used to assess whether one has a learning disability are themselves limited in their ability to get at the whole picture, and as with any measurement, require interpretation within a context. The determination of disability is necessarily one that cannot truly rely on resort to a mathematical formula. See 29 C.F.R. § 1630.2(j). This of course, makes sense, as every mathematical or statistical formula is based on certain key assumptions. Change the assumptions and the calculus changes.

I will also point out that one of the expert witnesses for the defendant Board of Law Examiners was working for the White House in framing NCLB and prior to that, leading the assessment portion of the President's Commission on Excellence in Special Education, Jack Fletcher - whose rigidity of opinion the district court found to be “seriously infirm”. A consultant that decided not to testify as an expert witness for the defendant, but whom I know was consulted regarding the case, is Reid Lyon, an architect of NCLB who is now under something of an ethical, if not legal, cloud regarding the state plan approval process under NCLB. In any event (and I do intend to read Townsend’s article thoroughly), I would agree that the tension is philosophical and believe it has been designed to restrict rights. I believe it to be a reflection of political changes subsequent to the 1994 elections and have always been skeptical of the motivations behind NCLB.
My 2 cents,
Jo Anne Simon, Esq.

8:01 PM  

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