Yingling on Testing Accommodations Under the ADAAA

Just out: M. Patrick Yingling, Learning Disabilities and the ADA: Licensing Exam Accommodations in the Wake of the ADA Amendments Act of 2008, 59 Clev. St. L. Rev. 291 (2001).  The introduction:

“That's the real problem with kids who struggle with learning . . . Some kids feel like they're stupid. I want them to know that they're not. They just learn differently. Once they understand that and have the tools to learn in their individual way, then they can feel good about themselves.”  This quote from Charles Schwab, the financial pioneer who discovered that he had dyslexia at the age of 40, embodies the importance of having federal statutes, such as the Individuals with Disabilities Education Act and Section 504 the Rehabilitation Act, that guarantee special education programs and reasonable accommodations to eligible students with learning disabilities. However, learning disabilities are not exclusive to the formal education process. In fact, learning disabilities often remain with individuals long after their experiences as students. Unfortunately, until the enactment of the Americans with Disabilities Act of 1990 (“ADA”), individuals with learning disabilities often faced a roadblock when seeking to make the transition from student to professional. The roadblock came in the form of a state licensing exam. 

The ADA was the first piece of federal legislation to guarantee accommodations on state licensing exams for individuals with learning disabilities.  The ADA had the purpose of assuring “equality of opportunity” and the “elimination of discrimination” in regard to all individuals with disabilities.  However, over the course of two decades, the courts steadily narrowed the ADA's scope of protection.  Individuals with learning disabilities who sought accommodations on licensing exams experienced the negative effects of such judicial interpretations. As a result, Congress took action to restore a “broad scope of protection” under the ADA by enacting the ADA Amendments Act of 2008 (“ADAAA”).  

This Article argues that the courts must be cognizant of Congress' intention to broaden the scope of the ADA, especially in regard to reading impaired individuals who request reasonable accommodations on licensing exams. Part I examines the ADA's protections for individuals with learning disabilities. Part II discusses the applicability of the ADA to licensing exams, including state bar exams. Part III examines case law over the past twenty years pertaining to learning impaired individuals who have requested accommodations on licensing exams. Part IV analyzes the ADAAA and focuses on its potential to change the status quo for learning impaired individuals who request accommodations on licensing exams. Finally, Part V puts forth recommendations for the courts to provide appropriate standards for individuals requesting accommodations on licensing exams under the amended ADA. Specifically, this Article suggests that: (1) courts should no longer foreclose the finding of a substantially limiting impairment in regard to the major life activity of reading due to an individual's academic success; (2) “working” should be recognized as an appropriate major life activity under which to evaluate claims for accommodations on the bar exam (and possibly other licensing exams), with such evaluations involving a comparison to most people having comparable training, skills, and abilities; and (3) reading disabilities should be recognized not only by psychometric tests that show a substantial limitation in comparison to most people, but also by test scores that indicate a significant discrepancy between an individual's intellectual capacity and actual reading ability. By following these recommendations, the courts will be able to evaluate future claims for accommodations on licensing exams with standards that reflect Congress' intention to provide a broad scope of protection under the ADA.