<<< CONTENTS>>>

1. AHEAD GUIDELINES FOR DOCUMENTATION OF LD
2. A ROSE IS A ROSE IS A ROSE... OR IS IT? Making the Dean's List
3. EQUAL TREATMENT AND EQUAL ACCESS AREN'T ALWAYS THE SAME!!!
4. RESOURCES ON-LINE: The ADA-Law Listserv

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<<<AHEAD GUIDELINES FOR DOCUMENTATION OF LD>>>

The long-awaited guidelines for documentation of a learning disability (for postsecondary purposes) were unveiled at the recent AHEAD conference in Boston and are to be mailed to the AHEAD (Association on Higher Education and Disability) membership next week. THEY WERE WORTH WAITING FOR! These guidelines came into being, in part, in response to the urgent need expressed by those working in the postsecondary arena to provide both consistency and credibility to the decisions they make regarding services/support for students with learning disabilities.

In making presentations to service providers, at conferences and workshops, in correspondence and on listservs, I have heard and read recurring questions for several years: "What do I do with the message scrawled on a prescription pad from a general practitioner that says, 'Yep, he's LD!'?" "What do I do with a report that establishes that the student has a learning disability but doesn't give me enough information to be PRESCRIPTIVE in assigning accommodations?" "Is ______ a legitimate test for establishing a learning disability in an adult?" "Is it appropriate for a ________ to diagnose a learning disability?" (Editor's note: The appropriateness of a chiropractor diagnosing LD became a very big issue in one midwestern state several years ago!) "How do I answer the faculty member who says 'On what basis do you consider this student to have a learning disability and need these accommodations? Show me where it says that.'?" While the Documentation Guidelines from AHEAD do not attempt to address directly these specific questions as stated above, I believe the guidelines have something to offer to each of the questioners.

In the introduction to the guidelines it states (in part):

"...These guidelines are designed to be a framework for institutions to work from in establishing criteria for eligibility. It is acknowledged that different educational settings with different student populations will need to modify and adapt these guidelines to meet the needs and backgrounds of their student populations..."

In other words, the guidelines are offered to assist institutions, service providers, diagnosticians, and consumers in their efforts to assure equal access (through accommodation as necessary) for individuals whose disability represents a substantial limitation in learning. The intent is neither to exclude nor restrict identification of individuals with learning disabilities through rigidly structured criteria -- these are GUIDELINES, not STANDARDS. Certainly these guidelines will need to be examined by administrators/service providers at each institution so that they can be "personalized" for use within each setting. The kind of formality and structure legitimately demanded in documentation presented for professional schools or in large urban areas with plentiful resources will vary significantly from the version of these guidelines likely to be employed by a service provider at a rural community college. The Guidelines can be used to help frame discussions of what is appropriate in a particular setting and to give conscientious professionals working in this arena the benefit of the thinking of highly qualified and experienced individuals while at the same time giving them credit for knowing their setting and their population, and for making appropriate decisions to fulfill both the spirit and the letter of the law!

Once such studied consideration has taken place, the Guidelines may prove to be an invaluable tool in informing various constituencies about expectations and in verifying the appropriateness of decisions being made. The service provider or testing agency who re-shapes these guidelines to fit the circumstances and then makes them readily available to persons with disabilities, to diagnosticians, and to the institutional community has established a baseline of necessary information and documentation that can be referred to -- and relied on! -- in those "sticky" situations. When presented with the prescription pad diagnosis, the service provider need not question the appropriateness or accuracy of the statement from the medical practitioner. When provided with a diagnosis based on a single (sometimes questionable) testing instrument, or for documentation that comes from an appropriate source but tells you nothing more than the fact that a learning disability has been diagnosed, service providers will no longer be faced with pitting their personal knowledge or experience against that of the student's chosen expert. The politically correct (smile!) response in such situations becomes, "In order to determine what, if any, accommodations are necessary in order to provide equal access, you will need to provide us with some specific information concerning your disability and its impact on your learning. Here are the guidelines we use at our institution. This will help your diagnostician to know both the type and scope of information we need in a report so that we can proceed in the accommodation process." You are not questioning the competency of the diagnostician. You are not questioning the legitimacy of the student. You are simply relying on existing policy that clearly establishes the parameters for establishing a rationale supporting the need for accommodations. And for the faculty member who says, "Who says this student has a learning disability?", the answer now becomes, "Based on guidelines suggested by the Association on Higher Education and Disability, we have developed a protocol for the documentation necessary in order to establish the existence of a learning disability at this institution. This student has provided all of the information necessary to verify that he/she has a learning disability and thus is entitled to equal access." In my opinion, these guidelines will be most helpful to service providers who do NOT have a background in learning disabilities assessment. Those competent and qualified professionals whose focus is on nondiscrimination and equal access, but whose lack of formal training has sometimes been used as an excuse to obstruct the process, will now have the weight of professional consensus behind their statements and decisions.

The guidelines were developed to be flexible. THEY NEEDED TO BE THAT WAY -- and must remain so even within what is adopted/adapted on a campus-by-campus basis. For example, the guidelines do not specify a timeline for recency of documentation. Rather, they stress that documentation must be CURRENT in order to be usable and useful. What "current" means may be different for different circumstances and individuals. Even the campus that chooses to include reference to a specific timeline (for example, three years or five years) should be prepared to make the statement in a way that allows flexibility -- "Documentation must be current in order to be useful in making accommodation decisions; typically, this would mean that such documentation is not more than three years old."

Attorneys talk about something called "black-letter law". My understanding is that this means a statement within the law which may have begun as a general principle has been interpreted in the same way for so long, by so many people, that there is really no room for discussion or re-interpretation. This is the way things are. We are not ready to promulgate "black-letter law" regarding diagnosis of a learning disability -- and I hope we never do. The AHEAD Guidelines for Documentation of a Learning Disability in Adolescents and Adults provide needed structure and direction, re-affirm the legitimacy of learning disabilities, and give credibility to the actions taken on behalf of learning disabled students enrolled in higher education. What more could we ask?

(EDITOR'S NOTE: As noted above, the full text of the Guidelines are to be disseminated to the AHEAD membership by mail within the next few days. Nonmembers who wish to have a copy of the Guidelines can contact the AHEAD office at P.O. Box 21192, Columbus, OH 43221, 614-488-4972 (V/T) or 614-488-1174 (FAX). It is my understanding that the Guidelines will be available for purchase at a nominal fee.)

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<<A ROSE IS A ROSE IS A ROSE... OR IS IT?>>

Last Fall, on the DSSHE-L listserv, there was a spirited discussion about students with disabilities qualifying for the Dean's List. We were all agreed that it is sometimes appropriate, as an accommodation, to allow students with disabilities to take less-than-the-typical full-time courseload, and still be recognized as being a "full-time" student. There are a variety of reasons why a student with a disability may need this accommodation, including but not limited to health concerns or medication issues, extra time needed to conduct activities of daily living (including learning!), or issues of attention/concentration. As noted by Jennifer Osmer of UNLV as part of the listserv discussion, the reduction of the courseload does NOT mean that students with disabilities are intellectually unable to perform at the same level. It simply means they must perform in the midst of other challenges. Regardless of the "why", the fact remains that this accommodation is employed by students with a variety of disabilities in institutions across the country. Taking a reduced load while maintaining their "full-time status" allows students the privileges that accompany that designation such as living in the residence hall, qualifying for insurance programs, and involvement in co-curricular activities. But what about being recognized on the Dean's List?

In that discussion last Fall, Randy Borst (now at SUNY-Buffalo) argued eloquently that this was a basic issue of "fairness" and that disability advocates need to proceed with caution in granting honors to a student with a disability whose QUANTITY of achievement was not equivalent to that of non-disabled peers. In other words, Randy's suggestion was that if students typically needed to achieve "x" grade point while maintaining a course load of 12 hours or more, that a student with a disability not be recognized for academic achievement until having received "x" grade point in an equivalent number of credit hours of work. On the other hand, I argued for a less stringent reading of the facts at issue, saying (in part):

"I would agree that the solution (Randy) proposes is not unfair to anyone in the system -- it gives a chance for students with disabilities to be recognized for achievement without penalizing them for the need to take reduced load. I am surprised, however, by how concerned people are on the issue of "fairness" in (the context of) making the Dean's List. I have never known there to be a spot on a job application that asks, 'And how many times during your college career did you make the Dean's List?' In fact, in the future, people will look at students' overall academic performance during their entire college career, not during a standard 8 semesters or an extended 16 semesters or whatever is necessary. ...The issue is recognizing achievement for a given individual at a given point in time. Making Dean's List doesn't take away from the individual achievement of others and really is supposed to be about an individual, not a comparison. One student is not denied the Dean's List because another student gets recognized on it."

Moreover, to argue that recognizing the achievement of a student with a disability taking only 9 hours is somehow inherently unfair to the student who achieved the designation while taking 12 hours ignores the fact that the typical "full-time" student who makes the Dean's List while taking a 12-hour load gets no LESS recognition than the student who achieves the same grade point average while carrying an 18-hour load! If the recognition is awarded to "full-time" students for achievement, then I would argue that if the institution recognizes the student with a disability as being full-time with other-than-the-typical load, so should the Dean's List. HOWEVER...

Recently someone raised the issue with me again with a new twist. At her institution, in order to be recognized on the Dean's List, a student must be carrying a minimum of 14 hours in a given semester. Full-time status begins with 12 hours and USUALLY a load of 14 hours or more would mean a minimum of 15 hours of credit because of the manner in which their courses are structured. Is this a different scenario? I think it is.

If one needs to be a full-time student for recognition, then I believe that recognition should be available to all full-time students regardless of what constitutes full-time on an individual basis. But at this institution, Dean's List recognition is specifically reserved for students who not only achieve academically but who push themselves academically at the same time -- you don't get recognized for the minimum load. Since the reason students with disabilities are requesting reduced courseload is because a maximum amount of effort is used up in taking even less than the typical load, I have a hard time arguing that the intent of the eligibility criteria (what we might call "academic excellence AND challenge") necessarily can be fulfilled by a student with a disability taking a reduced load. ON THE OTHER HAND, if the student with a disability would be less pushed and less stressed if taking 9 hours -- and yet chooses to take 12 hours and achieves the appropriate grade point, has that student not fulfilled the spirit of the rule, which is to personally strive harder AND excel? I don't know that there is an easy way to resolve this dilemma. I have a feeling it cannot be resolved with a single, simple pronouncement. Perhaps this is a good example of WHY 504 and ADA demand that in the end, we be prepared to consider circumstances on a case-by-case basis. Sometimes policies not only need to be modified in order not to discriminate -- they need to be modified differently for different individuals with disabilities.

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<<<EQUAL TREATMENT AND EQUAL ACCESS AREN'T ALWAYS THE SAME!!!>>>

Recently, a participant on the ADA-Law Listserv (see below for more information about this resource) observed that on the web page for the Law School Admissions Council, there is reference to the fact that "individual law schools may waive the LSAT requirement for candidates with disabilities." The individual asked for reactions from others -- is this appropriate when disability advocates have worked so long to establish that people with disabilities are entitled to EQUAL access because they are EQUALLY qualified? Several other folks responded to indicate that they, too, were uncomfortable with waiving the LSAT requirement and thus seemingly demanding less of applicants with disabilities. I was reminded of a sign my father used to have hanging over his desk that read, "Are you helping with the solution... or are you part of the problem?!"

The reason some law schools have chosen to waive the LSAT for students with disabilities (meaning the schools do NOT use the LSAT scores in determining admission for this population) is because there were several studies done in the mid 80's that showed that standardized tests such as the LSAT and the GRE's did NOT accurately reflect the potential of students with disabilities because of the nature of the test and the testing format. While the tests purport to measure knowledge, understanding, and reasoning, their highly verbal nature and content actually mean they may be testing something very different. The purpose of the LSAT is to help law schools to choose among the applicants in the hopes of determining who has the best chance of being successful in law school. If the LSAT does NOT accurately reflect that information, then the law schools ARE being both equitable **and** accommodating in choosing not to use the test in making admission decisions. Remember, waiving the LSAT requirement for a student with a disability does not exclude that student from anything -- it has the potential of allowing INCLUSION that would not otherwise be available. Not all law schools have chosen not to use the LSAT, but for my money the ones that HAVE should be congratulated, not chastised.

I think the discussion arose out of legitimate concern for appearances and a desire to avoid backlash from critics who are quick to point out instances of presumed favoritism or preference. However, in this instance equal opportunity can ONLY be provided with different treatment! The point at issue is not an equal chance to submit the same pieces of documentation, but rather an equal chance to be considered as a candidate for law school. If the criteria typically used in such consideration is inherently discriminatory, then the law school that chooses to use other criteria in assessing a student's potential IS providing equal access. Let's not confuse "the same" with "equal"!

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The comments above were spurred by a discussion on the ADA-LAW listserv. This listserv is described as "a forum for discussion of the Americans with Disabilities Act and other disability-related laws." The subscribers include disability advocates, people with disabilities, attorneys who maintain a focus on ADA issues and compliance, and others. While the list does not often focus on issues directly pertinent to students with disabilities, there is much to be learned about the Title I (Employment) issues of ADA by lurking on this list. Those interested in viewing archives from this listserv can access them at http://listserv.nodak.edu/archives/ada-law.html. After perusing recent postings, if you are interested in subscribing to the list you would send the SUBSCRIBE ADA-LAW yourfirstname yourlastname command to LISTSERV@listserv.nodak.edu.

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