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D A I S

A newsletter from Disability Access Information & Support



Providing information and technical assistance regarding

issues of disability in higher education

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March, 2000, Volume IV, No. 3

Jane E. Jarrow, Ph.D.

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<<< CONTENTS >>>

1. CAN FACULTY BE REQUIRED TO CHANGE THEIR TESTS?

2. MORE ON THE ISSUE OF DIFFERENT TESTS

3. WHAT ABOUT RECOMMENDATIONS **ABOUT TESTING**
WITHIN THE DOCUMENTATION???

4. THIS MONTH AT THE HOME OF DAIS

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<< CAN FACULTY BE REQUIRED TO CHANGE THEIR TESTS?

Is What is Good for the Goose Good Enough for the Gander? >>

In the last several weeks, I have answered a number of inquiries (and
seen a number of posts on the listservs) dealing with the issue of changing
test presentation as a form of accommodation. I am not talking about
providing accommodations in the delivery of tests (changing to large print,
or Braille, or allowing a student to respond orally or through a scribe). I
am talking about telling a faculty member that he/she must provide a
different kind of test (multiple choice instead of essay, or vice versa;
short answer/fill-in instead of essay, etc.). I have responded the same way
to each person who asked the question -- and I have started each of those
responses with the same disclaimer -- THIS IS MY OPINION ONLY. I know a
whole lot of equally experienced professionals in the field who feel
differently. But for what it is worth...

In my own personal experience, I have never seen a circumstance in
which I thought it was legitimate to REQUIRE a faculty member to make such a
change in testing. I have seen a number of circumstances in which the
faculty member was approached about the possibility and agreed to make such a
change, and I see absolutely nothing wrong with that. But I am increasingly
concerned about the suggestion that DSS providers are telling faculty that
they MUST change their tests, just as they MUST provide extended time, or the
institution MUST provide a reader, or scribe, or adaptive equipment. I just
don't think that is true, for a couple of reasons...

(1) The courts have been very clear, over time, that they will defer to
legitimately made academic and curricular decisions. I can't think of
anything more basic to the academic decision-making process than the decision
of the faculty member as to how to test for the information/learning at
issue. I don't think the courts would require that those very personal
choices on the part of the faculty member (which are applied to ALL students
in the class) be altered if push came to shove;

(2) The purpose of accommodation is to provide equal access for the
student with a disability. I think changes in input/output mechanisms (large
print, tape, Braille, computer use, oral testing) provide a bridge for the
student with a disability TO that equal access. It may be equal access to
the same poorly drawn or picky test that every other student in the class
faces; so be it! The fact that the faculty member is not good at developing
tests doesn't mean that the student with a disability, in consideration of t
hat disability, is entitled to BETTER teaching or testing than is available
to classmates.

(3) In almost every circumstance in which I have seen a request for
change in testing (including all of the most recent examples brought to me),
the reason given for requesting the change comes back to "this student will
perform better on _____ kind of test instead of _____ kind of test."
Sometimes the statement is tied to a specific REASON for why it is felt that
the disability leaves the student more likely to succeed in one format than
another. Most of the time there is no specific disability-related
documentation, only anecdotal report that says the student does better in
this instance than that. While this is the kind of information that I think
can be taken to faculty in exploring the possibility of change in testing
mechanism, I do not believe it is a legitimate reason for DEMANDING that such
change be made. I'll bet that in any given class in which the faculty member
gives a multiple choice test, there are at least half a dozen nondisabled
students who maintain that they don't do well on multiple choice tests and
would do better with short answer/essay. Yet those students have no "clout"
to allow them to press the faculty member to change the mechanism of testing
so that they can perform at their best. I just don't see giving that
leverage to the student with a disability as either fair or just!

I went back and looked up the statement from Subpart E, §504 that deals
with course examinations. Let me quote it here in two pieces...

§104.44 Academic adjustments (c ) Course examinations. In its course
examinations or other procedures for evaluating students' academic
achievement in its program, a recipient to which this subpart applies shall
provide such methods for evaluating the achievement of students who have a
handicap that impairs sensory, manual, or speaking skills as will best ensure
that the results of the evaluation represents the student's achievement in
the course, rather than reflecting the student's impaired sensory, manual, or
speaking skills (except where such skills are the factors that the test
purports to measure).

Discounting any confusion that might otherwise arise from the limited
reference to sensory, manual, or speaking skills (that is old language,
reflective of the early days of 504, and not meant to suggest LIMITS of who
is included), I have to admit I was surprised when I looked at that actual
language. It is ambiguous. I can see where some might interpret this as a
mandate to change the test itself, to maximize the student's performance. I
can see where that interpretation could be made, but I don't accept it. I
believe that taking the statement above out of context is misleading. The
context is one of equal access, nondiscrimination. We have always insisted
that accommodations do NOT give the student with a disability an advantage,
but rather seek to mitigate the disadvantage created by the disability. In
that context, I read the regulation above to speak to accommodations like
Braille, large print, readers, scribes, and so on -- accommodations provided
to make the SAME test accessible -- rather than suggesting that the student
with a disability is somehow entitled to be given a BETTER chance at a good
grade because the test is designed to suit his/her learning style. That
doesn't seem equal to me.

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<< MORE ON THE ISSUE OF DIFFERENT TESTS >>

Let's look at the issue of different testing for students with and
without disabilities from another viewpoint. What about circumstances in
which the faculty member WANTS to give the student with a disability a
different test because the student is using accommodations. I have the same
objections to such a scenario as are expressed above. The following is some
excerpts from an essay on different tests that I constructed following an
extended discussion of the subject on the DSSHE-L:



(From November, 1978)

Yesterday, someone wrote, in part:

> I am new to the work of disabilities services and have a question for
> the list. In a recent conversation, a faculty member stated that if he had
> to give a student a test at a time other than the regularly scheduled test
> period (because of the logistics required to provide the accommodation of
> extended time) he would create a separate test for that student. I
> responded that this was not appropriate due to potential differences in
> degree of difficulty of the test and possible perception that grading might
> be different. He argued back that he would give a different test for any
> student who could not take the test at the regularly scheduled time - for
> whatever reason; that this was to prevent students from sharing information
> about the content of the test; that his 25 years of experience in teaching
> enabled him to create an equivalent test and to grade it fairly, and that
> he would be willing to argue that in court if challenged.

(JEJ) Tell him he should get ready to argue in court (or at least with OCR).
We've gone around on this one numerous times. Bottom line -- it is not
appropriate to give a different test for exactly the reasons you gave. The
fact that he has 25 years of teaching experience is more likely to speak to
his rigidity on the matter than his skill in creating equivalent tests and
grading them equitably. As an aside, I would suggest that you NOT argue this
with the prof (who has already made up his mind). Go to the powers-that-be
and say, "Professor So-and-So says he is going to give a different test. My
understanding is that this is a violation of Section 504 and ADA. I don't
think he will change his mind based on my discussion with him, so you have
one of two choices. Either you intervene and tell him he must allow the same
test to be used or you risk it and hope the student doesn't file a complaint
Your call." You can only do what you can do!

As a follow-up, someone wrote, in part:

<< It seems that your professor who wants to make up to make up a different
test for the student with a disability might be right. Since this
policy is applied to all students who take tests at different times, he
is not displaying discriminatory behavior. He is protecting the
validity of his tests.>>

(JEJ) Sorry. I can't agree here. The faculty member who chooses to give a
different test for students who are taking make-up exams cannot carry that
same procedure over to students taking a test at a different time in order to
receive appropriate accommodations. Apples and oranges. The decision to
allow a student to take a make-up exam because the student missed the test is
a decision left solely to the faculty member. The decision to provide
appropriate accommodations for a student in taking an exam is clearly NOT in
the purview of the faculty member. He can't choose not to give the student
the accommodation -- and he doesn't have the right to choose not to give the
student the same test.

---------------------------------------

Someone offered (in part):

<< Professors have legitimate concerns about
exam security that play into the concepts of reasonable accommodations and
fundamental alteration. Even one instance of a student getting the exam in
advance from a friend would do a great deal of harm to the perception of
accommodations on your campus. >>

I do NOT disagree with anything stated above. I understand why prof's
are concerned about cheating, and I don't discount that it happens and I don't
want to interfere in any way with the precautions that faculty choose to take
in trying to prevent cheating. And you are right -- the danger to the
credibility of the accommodations process is very real. But the issue, as I
see it, is not whether there are legitimate concerns about the possibility of
a student cheating, but rather whether the student with a disability has a
legal right to equal access to educational opportunity. Again... the
different test leads to the distinct possibility of a different level of
difficulty, coincidental hit or miss on the student's focus for study, etc.

I used to be a faculty member. I spent seven years constructing tests.
There might be some ways in which you could give a different test and have it
be truly comparable in some disciplines -- for instance, you could make up 2
dozen problems testing understanding of a given mathematical concept and then
randomly select 12 out of the 24 for each student in the class to do. But
most disciplines don't lend themselves to that and most teachers aren't going
to go through that kind of process (it takes work!) along the way. What is
going to happen MOST of the time is that the professor will write some
questions that are legitimately drawn from the material covered, assign point
value to them, and feel that the test is comparable. But if those were the
most important questions to ask -- or the most salient points to be addressed
-- the prof would have asked those questions on the initial form of the exam
So if I am a student studying as all other students are studying, I am
(hopefully) going to be better prepared to deal with the things that seem to
be of most importance in the material at hand. If you are not asking the same
questions, you are not testing the same mastery of information -- and that is
MY understanding of what the rules require.

<< The best solution, of course, is to avoid the issue altogether by
encouraging the testing center to give the exam at the same time as the
rest of the class >>

(JEJ) ABSOLUTELY AGREED. Or at least, to have the student begin the exam while
the other students are still taking it (or finish during the time there others
are taking it) so there is no concern to BE raised about information getting
out inappropriately.

-------------------------------------------

(JEJ:) It seems that I have done it again... read and responded to a question with
the belief that I fully understood the context without considering the
possibility of another meaning. Let me clarify in response to someone else’s
post from yesterday...

<< I think it matters whether the student is taking the late exam
because he requested a late exam as an accommodation, or whether the
school is requiring the student to take the exam late to facilitate
administration under nonstandard conditions. If the school imposes the
later time for its own administrative convenience, then I agree with Janie
that it should give the student the same exam as everyone else. But if
the student requested, as many do, the opportunity to delay the exam as an
accommodation, then I disagree with Janie.>>

Then we agree on this point, as my comments never considered the
possibility that the student had REQUESTED the chance to take the exam at a
different time as an accommodation. I assumed, from the original
question, that the exam was being taken at a different time because of
scheduling problems (another class right after the one in question, thus not
enough time for extended time or need for a quiet proctored setting that
couldn't be found at the same time, etc.). I ASSUMED the question had to do
with a need to shift the time because of procedural concerns in offering the
exam with appropriate accommodations in place, and in that context I will
stick by what I have said thus far. If, on the other hand, the student has
requested the chance to take the exam at a later time as an accommodation
(because, for disability-related reasons he/she is not ready to take it at the
time of offering), I would agree that this is nothing more or less than a
make-up exam and should follow the same rules and procedures put in place for
anyone else.

The post went on to say:

<< I hesitate to generalize; much may depend upon what the test seeks
to test. Law school exams probably differ significantly from many other
exams. But my experience has been that designing two equivalent tests for
the same course which test what I seek to test is not nearly so difficult. >>

(JEJ) Then I would guess that law school exams DO differ significantly from
others. Maybe it is because you are, for the most part, testing for
understanding and application that can be tested by applying it to different
circumstances. In my experience, most undergraduate exams are testing for
information and how to apply that specific information.

<< I also wonder where the standard error of measurement fits in
here. Doesn't the unavoidable measurement error inherent in any test
suggest that there is some room within which to design substantially equal
tests? >>

(JEJ) I don't have a lot of technical expertise in test construction (as is
true of 95% of the people teaching in higher education today -- Ph.D. programs
continue to teach you how to do research and then send you out to teach!).
But from my position the term "substantially equal tests" sounds a little
loose. Equal in whose view? Is it anything like "separate but equal"
educational opportunities? GRIN.

------------------------------------------------

(JEJ) One last time...

Let me suggest a slightly different scenario. What if the professor suggested
that he/she was sending over to the testing center a different form of the
test for the student to take at the same time that others were taking the exam
in class. I would guess that most of the people on this list would find that
unacceptable. If it is unacceptable for a different exam to be given to a
student taking a test at the same time as the rest of the class (presumably
because we are concerned about the comparability of the two tests), then why
would we not have the same concern about giving a different form of the test
when the test is given at a different time? Presumably, we DO have the same
concern, but we allow concerns about test security to take precedence over
concerns about comparability.

I understand about test security. I appreciate those concerns and do not, for
a moment, doubt their importance. I just believe that whenever possible
concerns about logistics should not be allowed to trump concerns about equity
of opportunity. In a private conversation on this topic the other day, a
colleague and I were discussing the fact that there are several good reasons
why something is NOT considered a reasonable accommodation under the law
(direct threat to health or safety of others, substantial alteration of the
program or service, substantial change in an essential element of the
curriculum, undue financial or administrative burden), but I don't remember
concerns about test security making that short list!

I will finish where I started. I believe strongly in what someone else
suggested to start with... that whenever possible the problem should be
avoided entirely by making arrangements for the student to take the test at
the same time as everyone else. Then we don't have to grapple with either the
philosophical or practical issues that have plagued this discussion from the
first. I don't think we are really arguing major differences of INTENT here,
only of practice. Following the old K.I.S.S. principle, let's avoid the
discussion entirely by keeping the practice clean whenever possible!

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<< WHAT ABOUT RECOMMENDATIONS **ABOUT TESTING**
WITHIN THE DOCUMENTATION??? >>

It seems appropriate to circle back to the beginning, at this point, as ask WHY so many DSS providers seem to think that it is necessary/appropriate to ask faculty to change the test format for students with disabilities. Frequently, the answer is, "because the documentation says the student should be given (fill in the blank) exams," or "because the documentation says the student should be given weekly short exams instead of cumulative exams," or "because the documentation says the student needs _________."

If the documentation said the student needed a full scholarship to relieve him/her from the worries of funding their education so that they could concentrate better, would you provide it?

Students should be asked to provide documentation to the institution for two reasons -- and ONLY two reasons: (1) to demonstrate that they do have a disability as defined by the law and thus ARE members of the protected class; and (2) to demonstrate that there is a need for some accommodation in order for the student to have equal access. Got that? (1) Do you have a disability? and (2) Do you need accommodation? Neither of those questions should open the door to the suggestion that the documentation will be used to DICTATE the accommodations to be provided -- only to determine whether accommodations are necessary. At the risk of being redundant (I seem to say this a lot, recently!), recommendations within the documentation are ONLY that -- recommendations -- and no one outside the institution should have the authority to obligate the institution to what it will do in order to accommodate (well, maybe OCR… a little levity there, folks!).

In my opinion, requests for recommendations of accommodation by the diagnostician SHOULD NOT BE INCLUDED within the guidelines for what is necessary to establish a disability and the need for accommodation. That’s right. You heard (read) that accurately. I don’t believe that you should be requesting recommendations from the evaluator within the listing of what thing are required in the documentation. Many service providers have included such a requirement, usually out of an honest concern for appropriately meeting students’ disability-related need for accommodation. Not everyone is an LD specialist, or an ADD specialist, or a BVI specialist, and very few service providers feel equally confident in ALL of these areas. In theory, if the professional providing the diagnosis (who IS an expert in that area) is required to provide recommendations for accommodation as part of the documentation of disability, then those recommendations can be used as an extension of the expertise/experience available in-house. Yes, BUT...

The first problem lies in the fact that the service provider’s desire for suggestions and support from outside professionals typically revolves around the need to know more about the impact of the disability on academics and campus integration. But very few doctors of physical medicine have any clear concept of the kinds of accommodations that can or should be made in higher education to assure full access for a student in a wheelchair (priority registration, accessible transportation, moving classes, disability parking, and so on). Very few audiologists have ever thought about how an individual’s deafness impacts on the ability to learn a foreign language. It is not logical to expect an ophthalmologist to be in a position to make informed recommendations about the relative merits of Braille v. audio tape as alternate media for the student who is blind. Knowledge of academic impact of the disability is, in fact, NOT a part of the expertise that these professionals bring to their interactions with the student.

More importantly, if the rules state that the documentation is not considered complete unless it includes recommendations, there may be a tacit understanding that the institution intends to follow the recommendations that are provided in this fashion. If you are not prepared to follow these recommendations, then why insist on them? What if those recommendations are for accommodations that the institution cannot or will not provide because they are not reasonable or appropriate in an academic settings ("this student should not be asked to take any tests" or "this student should be allowed to take all tests as open-book tests" or "this student should be given a waiver of the foreign language requirement"). Remember, too, that the diagnostician who is asked to provide recommendations will typically list recommendations for things that can or should be done to enhance student success. The purpose of providing accommodation is to assure equal access. Those are NOT necessarily the same!!!

An outside source can provide documentation that someone has a disability and thus is a member of the protected class. The outside source should also provide enough information to establish the need for accommodations. In my opinion, the institution has no right to question the status of someone as a person with a disability if the requested documentation has been provided by an appropriately credentialled individual. However, the institution should NEVER give up the right to be the sole determiner of what accommodations shall be provided within the institution. NEVER. Instead, the policy should include a statement at the end that clearly indicates that the determination of appropriate accommodations will be made by institutional personnel, in conjunction with appropriate parties (student, faculty member, and so on). There is nothing wrong with asking and encouraging input from others as to appropriate accommodations, but don’t put yourself in the position of having to follow it!

AFTERWORD: As I was preparing this newsletter for dissemination, I received a panicky note from a service provider who is facing a demanding student and an even MORE demanding diagnostician who has documented a psych disorder and who states that the student must NOT be asked to face any deadlines or stated time limitations on the syllabus, tests, reports, or papers. The service provider asked what she should do. I told her to, "JUST SAY 'NO'!!!"

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<<< THIS MONTH AT THE HOME OF DAIS >>

Because last month's newsletter was so delayed in getting out, and because the information has been online for such a short time, only one article has been changed for reading this month:

In keeping with this month's theme regarding issues of testing students with disabilities, in the Faculty Corner you can read an article from the September, 1998 edition of the DAIS Newsletter entitled, "They Also Serve, Who Only Stand and Wait… Testing Differently Does NOT Mean Testing Less" (http://www.janejarrow.com/home/dinroom/corners/faculty.html )

In the Administrator's Corner, you will find an article from February (2000) newsletter, "The Supreme Court Takes On Challenge to Title II - NOT!" (http://www.janejarrow.com/home/dinroom/corners/admin.html )

And be sure to stop by and dip into The Gravy Bowl for a non-legal interpretation of the 7th Circuit decision in the Ford Olinger case, and how it relates to the Casey Martin decision.

Hope to see you there…

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(End Newsletter)