Today’s case, Bibber v. National Board of Osteopathic Medical Examiner, Inc., a decision that came down April 11, 2016, from the U.S. District Court for the Eastern District of Pennsylvania is ostensibly about one thing but turns out to be about something else. That is, it raises the real question as to whether Albertson’s, Inc. v. Kirkingburg, by 527 U.S. 555 (1999) might still be good law despite the amendments to the ADA found at 42 U.S.C. § 12102(4)(E)(i)(IV). As is typical for my blog entries, I have divided the blog entry into categories: facts; court’s reasoning; and takeaways. As always, the reader is free to focus on any or all of the categories.

I

Facts

The plaintiff is a third year medical student scheduled to take the Comlex I exam on April 13, 2016. She is seeking accommodations on that exam because she is a slow reader as a result of her congenital deafness and being dyslexic. She only can read one word at a time and usually uses her finger, pencil, or note card to follow along. She drops her head close to the table to be able to read in order to ensure her visual field is close to the words. She often has to reread long passages to confirm her understanding of the material. Considering her deafness and her dyslexia, it isn’t surprising that she has a lifelong struggle with reading. She had to repeat kindergarten after failing to master the alphabet. In first grade, she was sent to separate reading classes and given accommodations, such as extended time for exams. She was also taken out of class so she could receive specialized instruction in other subjects and various occupational therapies. In fourth grade, she began working with a reading specialist using the Orton-Gillingham and Wilson reading methods (well-known methods for helping dyslexics learn how to read). During that time, she learned strategies to improve her reading, including how to appropriately sound out words and process word with multiple syllables. The program turned out to be a great help. Through high school she continued to receive accommodations, including extra time to complete exams. She also received extra time to complete standardized test, such as the PSAT, the SAT, the SAT II, and advanced placement exams. She then went on to Colby College, a very selective small liberal arts school in Maine, where she was also granted accommodations, including time-and-a-half on exams and quizzes. Since it took so long for her to complete her schoolwork, she didn’t have much of a social life in college. She did try to increase the speed at which she got her work done by working with study groups and having friends read to her. She also had classmate take notes for her in the classes. She also received an exemption from Colby College’s foreign language requirement. In 2008, she wanted to take the MCAT exam, but when she contacted the administrators of the MCAT, she was informed that her evaluation was out of date and that she would have to be evaluated in order to be considered for any accommodations. Not surprisingly, the evaluations the testing entity wanted her to do would have cost upwards of $5000. She could not afford that and so instead she studied for a 10 hours a day using study materials from both Princeton and Kaplan. When she took the MCAT, she nonetheless received average scores on the sections. She then applied to medical school after taking the exam but was not accepted to any school. She then pursued a teaching career for three or four years after that. Next, she attended what is now the Rutgers School of Biomedical Sciences. Before getting into that program, she had to take the GRE where she achieved an average score on the GRE, where she received a score in the 71st percentile on the verbal reasoning section and a score in the 93rd percentile in the analytical writing section, which was enough to get her into the school. She did not request accommodations for the GRE. While in graduate school she was granted accommodations, including receiving 50% extended time to complete examinations. She was successful in graduate school and graduated with a GPA of 3.71. After finishing the graduate school, she once again applied to medical school and took the MCAT a second time. This time, she received an average overall score and also an average score on the verbal reasoning section. She attributed that improvement to her test taking strategies on the physical science section of the exam. She applied to several medical schools and was accepted to the Ronan School of Osteopathic Medicine where she again requested accommodations. After being evaluated, she received accommodations, including extra time to take examinations. She achieved good grades in medical school, earning grades of pass, high pass, and honors. She also has taken several standardized tests while in medical school both with and without accommodations. At trial she testified that she enjoys reading despite it being difficult for her and said that she could read and write. She also noted that she can read menus and stop signs. Finally, she stated that she can read things normally as long as she is not timed. As part of the run-up to trial, she was administered a test that showed she was in the 5th percentile reading comprehension when compared to other college graduates and that her reading rate was measured to be in the 1st percentile when compared to other college graduates. On the other hand, experts for the National Board of Osteopathic Medical Examiners said that she would not entitled to extended time because she received average MCAT and GRE scores without accommodations and she had average scores on another test. In particular, her scale reading comprehension scores were average compared to a population of readers spanning 10th-graders through students in the second year of college. On the Woodcock-Johnson reading mastery test, she achieved scores in the 41st percentile in word reading, the 75th percentile in word comprehension, and the 91st percentile in passage comprehension.

II

Court’s Reasoning

In holding that the plaintiff was not substantially limited in the major life activity of reading and processing information, the court reasoned as follows:

  1. An analysis as to whether an impairment substantially limits performance in a major life activity must be compared to the individual’s ability to those of most people in the general population.
  2. The Department of Justice heavily favors an individualized assessment or evidence that a qualified professional has individually and personally evaluated the candidate as opposed to simply considering the scores from review of documents.
  3. Factors considered by courts across the country include: 1) an individual’s objective test results in comparison to an average person; 2) the individual’s other life activities, including extracurricular activities; 3) any pattern of substantial academic difficulties; and 4) whether the individual has been afforded testing accommodations in the past.
  4. Department of Justice has taken the position that if an applicant had been granted accommodation post high school by a standardized testing entity, then there is no need for reassessment for subsequent examination.
  5. Referencing a decision by now Justice Sotomayor when she was a U.S. District Court judge, Bartlett v. New York State Board of Law Examiners, 2001 U.S. Dist. LEXIS 11926, 2001 WL 930792 (S.D.N.Y. August 15, 2001), a disability cannot be based on outcomes alone, particularly in the context of learning disabilities, especially where plaintiff is extremely bright and hard-working and uses alternative route to achieve academic success. That is, the focus is on how a major life activity is substantially limited and not on what outcomes an individual can achieve.
  6. The amendments to the ADA flatly state that the determination of whether the impairment substantially limits a major life activity has to be made without regard to mitigating measures.
  7. Psychometric data shows that the plaintiff reads at an average level. Accordingly, her disabilities do not substantially limit her ability to read and process information as compared to the general population. In particular, on one test when compared to other 28 year olds, she scored in the 68th percentile in word reading, the 53rd percentile and to pseudoword decoding, and the 82nd percentile in spelling, all of which were squarely within the average range for people in her age group (makes you wonder about the literacy of 28 year olds in the U.S.…)
  8. Her own expert testified that the plaintiff was entitled to only 25% more time on the exam.
  9. Without accommodation, the plaintiff scored in the 71st percentile in the verbal reasoning section when compared to college graduates and college seniors seeking to attend graduate school. When she took the MCAT twice, both times she scored in the average range on the most reading intensive section of the test when compared to college seniors the graduate wishing to attend medical school. She also completed all three of those exams without any accommodations. Therefore, her confidence in taking those exams without even attempting to receive accommodations speaks big volumes about whether her dyslexia is substantially limiting when compared to high achieving groups of people, let alone the general population.
  10. On the COMSAE test (essentially the PSAT for COMLEX), when she took it a second time, she finished the exam in less than the time provided and received an acceptable performance score.
  11. She testified that she is an avid reader and has no problems reading menus, and traffic signs; she can read, though it takes her longer to do so. Thus, she presents the picture of a slow reader who can read effectively in both academic situations and daily activities.
  12. Since the court has no evidence of the plaintiff’s reading abilities prior to fourth grade other than her testimony, it was not possible to conclude that without using the mitigating measures she uses that she was substantially limited by her dyslexia.
  13. The court distinguished the Sotomayor opinion in several ways.
    1. The plaintiff here is a better student, a better standardized test taker, and has much better grades.
    2. The plaintiff did not struggle on the GRE in the same way.
    3. The plaintiff reads for pleasure and has no trouble with everyday reading tasks.
    4. The plaintiff failed to produce sufficient evidence that her reading process is slow, labored, and difficult when compared to the general population.
  14. The decision should not be read by the National Board of Osteopathic Medical Examiners as a license to deny accommodations to individuals with a history of accommodations and a dyslexia diagnosis from childhood. Even so, unique facts of this case necessitate the conclusion that the plaintiff is not a person with a disability as defined by the ADA.

III

Takeaways:

  1. In Albertson’s, the Supreme Court said that mitigating measures included any mitigating measures that a person develops on his own, even including neurological accommodations. As mentioned above, the amendment to the ADA explicitly overruled that decision. However, this case has you wondering whether that is indeed the case. The court says that they simply don’t have evidence before fourth grade to make the call. However, objectively speaking, it is pretty obvious that the mitigating measures she developed changed the trajectory of her reading and processing abilities. In particular: she had trouble reading since the earliest days of her formal education; she repeated kindergarten after struggling to learn the alphabet; in first grade she was tested and found to have learning disabilities related to reading and was subsequently placed in a special reading class and given accommodations on test; between fourth and eighth grade, she was provided with frequent afterschool instruction using the Orton-Billingham and Wilson reading programs; and she still uses many of the same tools she learned while working with her instructor utilizing those techniques in grade school. She also received accommodations through her high school years, both in school and with respect to standardized testing. Finally, I might add that the overwhelming majority of children with severe to profound hearing impairment upon completion of their mandatory school period, do not read above the fourth grade level when compared with their peers who are typically hearing. See, Godbey v. Iredell Memorial Hospital, Inc. 2013 U.S. Dist. LEXIS 117129, at *4 fn 4 (W.D. N.C. August 19, 2013). Accordingly, one is left with the conclusion that despite statutory provision to the contrary, Albertson’s might still be good law.
  2. Part of the problem is that there is no standard for determining the ameliorative effects of mitigating measures that a person develops that are not related to equipment or personnel. I would submit that the standard should be whether the trajectory changed and that such a standard should not need overwhelming evidence as to whether the person was substantially limited without the mitigating measures. The advantage of the trajectory change standard is that it should be relatively easy to prove up as contrasted to the standard that the court came up with here requiring an analysis of evidence prior to her receiving mitigating measures in fourth grade.
  3. An argument can be created that the plaintiff is certainly being penalized for having worked hard to develop her own successful mitigating measures and for being intelligent; neither of which is supposed to happen per the ADA.
  4. The court said that the National Board of Osteopathic Medical Examiners should not take the decision as a license to deny accommodation to individuals with a history of accommodations and a dyslexia diagnosis from childhood. However, one wonders if this case will not give NBOME encouragement to do that anyway. One also wonders, whether this case won’t give testing entities encouragement to ignore the LSAT settlement, which I discussed here, as the plaintiff here had a long record of receiving accommodations for standardized testing.
  5. If plaintiff fails to file an appeal, not only does she lose the chance for accommodation for standardized testing, one wonders if the University she is at will not take away her accommodations.
  6. The problem I have with this case is its theoretical construct with its focus on substantial limitation. As the EEOC and the DOJ say, whether a person is substantially limited should not generally require a great deal of analysis, and a great deal of analysis is exactly what happened here. Also, objectively speaking, it is pretty obvious that her trajectory changed as a result of the mitigating measures she developed on her own. That said, I would have been more pleased with the theoretical construct of saying that this person had a disability but a question of fact exists as to the affirmative defense of whether allowing the accommodations would fundamentally alter the nature of the test.
  7. While litigation over substantial limitation has gone way down since the amendments to the ADA, you do see it coming up occasionally, such as in this case (considering the dueling experts, getting the case to this point had to be extremely expensive).
  8. If a plaintiff needs accommodations on a standardized test, not seeking them may be used against them later should they subsequently seek reasonable accommodations.
  9. The focus on Woodcock-Johnson may be problematic. I am aware that learning disability specialists have varying views of this test and what it might mean for a particular individual.

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