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Law360 (February 1, 2021, 3:26 PM EST )
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| Rebecca Mannis |
Some matters were on the front burner for attorneys, clients and clinicians prior to the pandemic, but the need to change test formats due to the COVID-19 crisis has unearthed and magnified challenges related to compliance with the Americans with Disabilities Act[1] and, for some testing agencies, Section 504 of the Rehabilitation Act of 1973.[2]
This article focuses on cognitive and learning disabilities — both developmental, such as dyslexia, and acquired, such as post-concussion sequelae deficits. With many states changing test formats and holding bar exams remotely during the pandemic, including tests scheduled for February, it is important to consider the complexities associated with such disabilities and the impact pandemic-era changes may have on test takers.
Disabled individuals with strong intellectual competencies may nevertheless require accommodations, such as extra time or a quiet environment, while taking the bar exam so as not to restrict their ability to work effectively with the tasks at hand.
The translational neuropsychology lens presented in this article bridges brain-behavior correlates of learning and implementation so that disabilities are appropriately identified, and accommodations and disability remediation are attuned to the specific nature of the bar exam.
Background
Test accommodation considerations for high-functioning individuals with disabilities are complex and nuanced. Section 504 of the ADA states that no qualified individual with a disability shall be excluded from, denied the benefits of, or be subjected to discrimination from any federally funded agency.
The ADA protects the civil liberties of disabled individuals from discrimination. But interpretation of these protections is fraught for people with atypical profiles, including bright individuals who must now grapple with changes in how tests are administered.
These individuals possess strong intellectual skills and emotional coping mechanisms. Sheer effort and assiduous work habits enable them, in certain contexts, to use their verbal reasoning skills to manage functional gaps.
But they nevertheless often have deficits related to working memory (mentally juggling and prioritizing significant detail), processing speed (working effectively and efficiently with multilayered information), and visual organization (scanning, envisioning and mentally sequencing information).
A 2020 paper published in the Journal of the American Medical Association[3] highlighted the prevalence of nonverbal learning disability, or NVLD, in North America, finding a population prevalence of 3% to 4%. A controversial disorder, NVLD often compromises high-stakes test performance, but it was removed from the Diagnostic and Statistical Manual of Mental Disorders,[4] which has resulted in an uphill battle for bar exam candidates seeking accommodations.
Similarly, learning issues such as concussion aftereffects, traumatic brain injury, Lyme disease, chronic fatigue syndrome, anxiety disorders and twice exceptionality can affect advanced education, test taking or workplace demands. Acquired long-haul COVID-19 neurologic sequelae may be a new addition to this list.
Later-Stage Diagnosis: Real and Complex Patterns to Understand, Address and Accommodate
Students with late diagnosis of the above conditions must learn to negotiate the disability advocacy process while also preparing for bar exams.
Without a paper trail of earlier neuropsychological testing, an individualized educational plan or a 504 plan outlining necessary services and accommodations, obtaining accommodations from schools and test agencies is fraught. Without early diagnostic histories, such individuals can be perceived as malingering or undeserving of accommodations.
These students must often undertake neuropsychological exams to assess the impact of their disabilities, but such tests often fall short in recognizing deficits. The tests often compare those assessed to the larger population, when they should be compared with their peers, i.e., other high-functioning individuals.
There are also limitations inherent in standardized neuropsychological assessment, because they test for tasks that are less demanding than taking the bar exam or other high-stakes tests. Neuropsychological fluency tests are brief and require writing skills that are more basic compared to skills required for licensing exams.
Similarly, multiple-choice reading tests in neuropsychological assessments are brief and less rigorous than bar exams. And neuropsychological testing measures are usually administered 1-to-1 in quiet offices, often leading to overestimation of real-life functioning.
These shortcomings in disability assessments are exacerbated by computer-delivered tests increasingly prevalent during the pandemic, which impose more scanning and working memory demands and tap into underdeveloped cognitive functions, as discussed later in this article.[5]
Legal Advocacy Developments and Considerations
New York Assembly Member Jo Anne Simon, a disability law practitioner with several decades of experience, has called for transparency to ensure that bar candidates with disabilities can access exams conducted remotely due to the pandemic.
Simon authored a state dyslexia law, enacted in 2017, to ensure that New York's children are properly screened and supported early on in their education. The law instructed the New York Department of Education to develop guidance for schools consistent with the federal requirements.
Her advocacy in the late '90s case of Bartlett v. New York State Board of Law Examiners also set precedent for extended time on the bar exam for dyslexic individuals.[6] But despite this key shift in test accommodations for bright individuals with learning issues, numerous advocacy and implementation issues remain.
Mary J. Goodwin-Oquendo, a disability civil rights attorney who serves on the New York State Bar Association's Committee on Disability Rights, told me that with COVID-19 and sudden changes to examination formats — for example, going from paper to computer, in-person to remote, human proctoring to artificial intelligence proctoring — examinees and their clinicians are scrambling to assess whether their disabilities and accommodation needs will be affected. She added:
Arbitrary application deadlines and unduly burdensome documentation requirements add another layer of chaos that screens out individuals with disabilities. Some of these tests, like the bar exam, are offered only a couple of times each year. Not having appropriate accommodations means not having a fair opportunity to pass an exam and earn a living.
The issue of standardized testing in light of the pandemic was the subject of a December virtual public hearing by the New York State Assembly's Standing Committee on Judiciary.
Representatives outlined plans to ensure accommodation for all individuals taking upcoming bar exams. However, some student advocates presented concerns about access, and how the ability to focus on test preparation was compromised due to the change in test administration during the pandemic.
Computer-Based Standardized Assessments and Their Impact
Two emerging test delivery format trends can create restrictive encumbrances and necessitate tactical advocacy.
A test can be provided in traditional paper-and-pencil format with online proctoring, such as the method used by the New York State Bar Association in conjunction with ExamSoft.[7] Some jurisdictions, such as California, are using the computer-delivered format, where students take the test on a monitor rather than in a test booklet.
Paper-delivered and computer-delivered assessments are not the same, despite some test companies claiming that overall they are similar. Similarly, there is a debate whether remote and in-person neuropsychological testing are equivalently effective.
Research has found that reading digital content is a different brain process than reading print material. In her 2018 book, "Reader, Come Home: The Reading Brain in a Digital World," University of California, Los Angeles, professor Maryanne Wolf[8] revealed that eye movements, sustained focus and thus deep reading comprehension are different for digital content such as PDFs or online material.
Across languages, students tend to overestimate their comprehension of digital format, which she attributes to the complex neural networks that underlie comprehending advanced content. For learning-disabled students, these networks are awry and atypical, thus adding additional processing demands.
Meanwhile, the proverbial jury is out on how other aspects of computer-delivered tests, such as the clicking back and forth between content on different screens, a student's inability to write or annotate by hand and easily refer to this material, and the shift toward likely increased working memory demands, affect those with attention, working memory, spatial analysis, executive function or visual memory gaps.
Because granular analyses of performance of disabled individuals on computerized tests have not been done, it is premature to assume that computer-delivered formats are equivalent to paper-delivered ones.
Factors such as increased anxiety further complicate the matter, particularly as parameters for using or excusing these new formats are considered by test agencies. The time delays in advocacy and appeals to test agencies currently complicate the preparation process.
The issues raised above affect test takers and other stakeholders at multiple levels. While technology and adapting to new situations — whether future tools or problems such as COVID-19 — are critical considerations, they also risk diminishing individuals' civil rights under the ADA.
We are beholden, as professionals and perhaps as future colleagues, to better understand these complexities and approach them in a manner that is equal parts tactical, rigorous, ethical and collaborative in the face of the ever-changing nature of assessment and certification.
Rebecca Mannis, Ph.D., is founder at Ivy Prep Learning Center.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] Americans with Disabilities Act of 1990, amended 2008, 42 U.S.C. § 12101.
[2] Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794.
[3] Margolies, et al. Estimated Prevalence of Nonverbal Learning Disability Among North American Children and Adolescents JAMA Netw Open. 2020;3(4):e202551. doi:10.1001/jamanetworkopen.2020.2551.
[4] American Psychiatric Association. (2013). Diagnostic and statistical manual of mental disorders (5th ed.). Arlington, VA: Author.
[5] These trends and considerations were discussed in a November 2020 webinar by the New York State Bar Association Committees on Disability Rights and Continuing Legal Education, where my presentation focused on the learning specialist's role in remediation and advocacy. https://nysba.org/events/planning-for-disability-testing-accommodations-during-a-pandemic/.
[6] https://law.justia.com/cases/federal/district-courts/FSupp/970/1094/1639335/.
[7] https://www.ncbex.org/news/2020-bar-exam-process-comes-to-an-end-approximately-38000-applicants-took-bar-exam-in-july-september-or-october/.
[8] Wolf, MaryAnne. Reader, Come Home: The Reading Brain in a Digital World. New York: Harper Collins (2018).
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