<<< CONTENTS>>>

1. THE GOOD, THE BAD, AND THE UGLY -- From Boston University to the AAMC to The New Republic
2. CLEAR AND PRESENT DANGER -- The New Republic
3. THE THREE FACES OF EVE -- You Don't Know What Is Happening Unless You See ALL the Pieces
4. THE WORLD ACCORDING TO GARP... er ... Westling!
5. LESSONS WE LEARNED FROM THE BOSTON UNIVERSITY DECISION

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<<<THE GOOD, THE BAD, AND THE UGLY --
From Boston University to the AAMC to The New Republic!!!>>>

The week of August 11, 1997, brought an avalanche of outside comment, media coverage, and activity surrounding issues of college students with disabilities:

• -- On August 15, there was a ruling in the heralded Boston University lawsuit alleging discrimination against students with learning disabilities. The judged ruled against Boston University for both its policies and its attitude!
• -- Earlier in the week, a mailing arrived on the desks of members of the American Association of Medical Colleges (AAMC) alerting them to a recent court case in which three students were refused accommodations on their Medical board exams. The court upheld the decision of the National Board of Medical Examiners in those denials; it was suggested that the medical schools might want to review their own policies and procedures regarding students with disabilities in light of this decision.
• -- Finally, the August 25th edition of The New Republic magazine hit the newsstands and the internet with an article entitled "Defining Down Disability" that savagely attacked the existence of learning disabilities and attention deficit disorders while at the same time ridiculing people who have LD and ADD and questioning the ethics and rationality of anyone who defends them.

How should those who work with students with disabilities respond to such coverage when others on campus bring the information to our attention -- from the students with learning disabilities who read about the BU decision and understand it to mean that they can ask for and receive anything they want (which is clearly NOT what the decision says!), to the faculty member who never DID believe there was such a thing as a learning disability and who gleefully faxes you the New Republic article with a cover sheet that basically says, "I told you so!" The answer? BE PREPARED!!! Start from the premise that ANY coverage of these issues in court decisions, in the popular press, or through institutional communication can be used as a teaching tool to further the understanding of the students and the program that you have at your institution. Don't just sit there. Read. Write. Talk.

• DO make sure you have done your homework. When this kind of coverage happens you can bet that if you have seen it or heard about it, someone else on your campus will, too. Search out the articles or information on the case findings. Make sure you fully understand what was said. If there is language used in a court decision that you don't understand, find out about it (call a colleague or post a question to your favorite Listserv!). If there is reference made to something you don't know a lot about, investigate further so that you can discuss it confidently when the time comes.
• DON'T get defensive in responding to people who question you about such coverage. That isn't easy when you are dealing with articles as biased and negative as the recent New Republic piece. Assume, however, that you will have only a short time in which to hold the attention of that someone else on this topic. Instead of letting him/her come away from that interchange with your view versus the author's view, spend your time educating the individual on how the information compares or impacts on what is happening on your campus or giving them new information about what they read.
• DON'T be afraid to admit that some of what is said in negative pieces is valid; there usually is some grain of truth to be found in such pieces and acknowledging that makes your dismissal of the untrue or misleading aspects more credible.
• DO be aggressive in sharing information that sheds positive light on your students and your programming or that has real implications for change or modification to your current policies and practices. Either gather information from other sources or write out your own response to the situation and be prepared to share that with anyone who will listen/read. Try to be proactive rather than reactive.

It may be fortuitous that all of this publicity, negative and positive, should appear just as most institutions prepare to begin a new school year. This edition of the DAIS Newsletter is devoted to arming readers with information and explanations they may need in order to make the best of a good, bad, ugly situation! Let's start at the bottom and work our way up...
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<<<CLEAR AND PRESENT DANGER -- The New Republic>>>

"Defining Disability Down", the article by Ruth Shalit in The New Republic, is perhaps the most difficult piece of publicity to deal with because it is so outrageously negative. (NOTE: The article can be accessed online by going to the web page for The New Republic at www.enews.com/magazines/tnr/index.html and searching their archives for the August 25th edition.) How can one NOT end up looking defensive in trying to combat the misrepresentations, misinformation, and damaging rhetoric? I would suggest that everyone step back a little and try to be objective in viewing what is written. The result of such a review reveals so many mistakes and mis-statements (as detailed below) as to make the article laughable, rather than threatening, in its obvious bias... and perhaps that is the best way to present it to those who want to engage in a dialogue about this piece. Rather than trying to refute the author's "facts" and innuendoes, help others to see that the piece does not deserve serious consideration!

The article is very long and not that many individuals will take the time to read the whole piece. (Ironically, in many areas, The New Republic is delivered to newsstands by UPS and because of the strike this particular issue may never be available for direct purchase! It is still on-line, however, and still available to those who subscribe, so the potential for damage still exists.) The fact the most folks will read only summaries of, or references to, the full text makes the problem worse, not better. When one reads the full text, the obvious bias comes through clearly; someone who only sees random excerpts may be more inclined to give credence to the information reported. While I certainly would not suggest that you recommend the article to anyone, if someone suggests that they have heard about the article or read parts of it, your first response might be to say, "You really have to read the whole thing to get a feel for just how biased it was. Would you like me to share it with you? I have a copy here!" For many, that will end the discussion there and then. For those who take the time to read the whole piece, you owe them (and yourself) the time to sit down and show them what is wrong with it... read on!

• Ms. Shalit writes well. That is part of the problem. She uses some well-crafted prose. For example, "... the tendency of universities to enroll and graduate young men and women whose ability to pass a ball exceeds their ability to pass their courses..." or "...the core of a debate that has grown as civil rights law has expanded to cover not merely the halt, the lame and the blind, but the dysfunctional, the debilitated, and the drowsy." This second quote is a clever play on words at the expense of the dignity, credibility, and self-esteem of an entire population of persons with disabilities.

  The article is full of statements that are ludicrous when removed from the sweeping flow of her argument to be examined individually:

  • -- "The **recent** (**emphasis added) announcement by the Equal Employment Opportunity Commission that the Americans with Disabilities Act covers not only physically but **mentally handicapped individuals**..." (** emphasis added). Obviously Ms. Shalit missed the part of the Rehab Act and the ADA that says someone with a disability is someone with a physical OR mental impairment. The EEOC did not suddenly --decide-- that it was going to consider people with mental disabilities to be protected under the law. Congress decided that for them when they passed the ADA! -- "No one would deny that an individual who is unfortunate enough to be afflicted with one of the classically defined mental disorders -- schizophrenia, paranoia, manic depression, and so on -- suffers from a clearly defined and clearly recognizable infirmity... The diagnosis of a learning disability, in contrast, is a far more subjective matter." Excuse me? What objective measures are used to define schizophrenia? What clearly recognizable testing or symptomology is used to precisely diagnose paranoia? As compared with the rigorous objective testing needed to establish a learning disability these days, the diagnosis of shizophrenia or paranoia looks much more like an art than a science!
  • -- "Over the years, proposed reforms to disability law have been effectively vanquished by televised testimony from sobbing children in wheelchairs." This statement isn't funny; it is insulting, inflammatory, and inexcusable!
• The article is full of omission, misinformation, and misrepresentation of circumstances and facts that can lead an uninformed reader to exactly the conclusion Ms. Shalit wanted to suggest:
  • -- Ms. Shalit has misrepresented and misunderstood both the facts surrounding the Bartlett decision (a learning disabled student who successfully sued the New York Board of Law Examiners for accommodations on the bar exam) and the judgment of the court. The most egregious statements are those that suggest that the court decision and the existence of the ADA require the New York Board of Law Examiners to allow Bartlett to practice law. The ONLY thing the court decision and the ADA require is that Bartlett receive appropriate accommodations on the bar exam -- she still has to EARN the right to practice law as does any other aspiring attorney by passing the bar exam, but now she will have an equal chance to do so.
  • -- Ms. Shalit makes reference to the fact that the students involved in the BU case, in fact, received all the accommodations they requested under the Westling regime. She neglects to mention the fact that BU never disputed that the students involved in the case were, in fact, persons with disabilities under the law (thus entitled to appropriate accommodations) or that BU was under a "standstill agreement" from the time the litigation was filed (July, 1996) that required them to continue to provide the accommodations students were receiving.
  • -- The article discusses the NCAA's problems with the Justice Department regarding eligibility criteria for student athletes. Ms. Shalit cites the NCAA's rules regarding SAT scores and minimum GPA requirements. She then says, "In a March 1996 letter to the NCAA, Kuczynski (Justice Department lawyer) warned that the association's **academic standards** (**emphasis added) may Œhave the affect (sic) of excluding students with disabilities from participation in college athletics'" . The actual quote from the Justice Department letter says, "We believe that in some instances strict application by the NCAA of its initial **eligibility criteria** (**emphasis added) will have the effect of excluding students with disabilities from participation in college athletics." Eligibility criteria -- not academic standards. The reference was to requirements for core courses in certain areas and the NCAA's refusal to recognize "remedial" or "special education" classes taken pursuant to the terms of an IEP as a part of the core.
  • -- Ms. Shalit quotes from a checklist of symptoms of a possible learning disability published by the American Council of Education. She accurately cites several items from that checklist including "a short attention span", "impulsivity", and "difficulty telling or understanding jokes". She references those items, however, as "telltale signs of adult learning disablement" when, in fact, the listing they were drawn from lists more than 30 items (she only quotes 5) and clearly states that none of these symptoms are definitive in identifying learning disabilities; rather, if individuals reading the list believe that a number of these statements give an accurate picture of their functioning, they may wish to pursue a full evaluation to determine IF they have a learning disability.
  • -- Ms. Shalit suggests that institutions of higher education have long relied on standardized entrance examinations (such as the SAT) "because such tests, for all their faults, tend to be **highly reliable** (**emphasis added) in their estimation of how well a particular applicant will actually perform in college or on the job." Not true. The tests are NOT highly reliable, they are just MORE reliable than anything else that has been found; and at best the tests predict the student's performance in the first year in college -- not throughout their college career! Ms. Shalit goes on to cite two studies done by the Educational Testing Service (ETS) that indicated that when learning disabled students were allowed to take the SAT on an untimed or extended-time basis, the college grades of learning disabled students were substantially over-predicted. The studies exist. That is what they found. The problem is, the studies were done in the mid 80's. They have little to say about the current SAT exam, or the current population of students with learning disabilities and their ability to compete in college studies.
  • -- Ms. Shalit also suggests that the ETS policy of "flagging" test scores when a student has taken an examination under nonstandard administration conditions (i.e., putting an asterisk next to the score as it is reported to the postsecondary institution to which the student seeks admission) was instituted as the organization's "only check on spurious claims." The insinuation is that ETS started flagging test scores because they didn't want colleges and universities to be misled by scores obtained under false premises. WRONG! She also indicates that in order to receive accommodations (her words..."to reap the benefits of this particularly useful perk") ETS requires only a letter of verification from someone with the right title. WRONG AGAIN!
• Ms. Shalit clearly has little understanding of the spirit or the letter of the laws she has chosen to hold up for ridicule:
  • -- In several instances she brings in a discussion of the Individuals with Disabilities Education Act (IDEA) and its requirements to support her contention that laws protecting the civil rights of people with disabilities have been taken to the extreme. IDEA is the law under which the Special Education system in the country was established and operates in the K-12 system. It is not a civil rights statute. It never was.
  • -- Ms. Shalit demonstrates no understanding of the purpose of accommodation; she mistakenly believes (and promotes the belief!) that accommodations give an advantage, rather than attempting to provide equal access to opportunity. She states that because of federal law, people with learning disabilities "are now eligible for a lifelong buffet of perks, special breaks, and procedural protections, a web of entitlement that extends from cradle to grave." She ridicules the provision of accommodations to one of the BU students because he has a 3.6 grade point average (thus obviously not needing special perks and using them to inflate his grades) and then ridicules another of the students because his grade point average with accommodation is only a 1.9 (thus obviously indicating that he is not worthy of accommodation). Damned if you do and damned if you don't!
  • -- Ms. Shalit indicates that the Office for Civil Rights (OCR) has chastised institutions that "refused to exempt learning-disabled students from academic requirements..." and supports this contention with a quote from an OCR decision that states that "absolute rules against any particular form of academic adjustment or accommodation are disfavored by the law." There is a difference between taking an institution to task for saying "no" and taking the institution to task for saying "Never." The law requires the institution to give serious (case-by-case) consideration as to whether a given accommodation is appropriate, not that it provide a given accommodation. This is at the core of the BU argument about foreign language substitutions.
  • -- Through insinuation, Ms. Shalit suggests that any identified syndrome of behavior or performance is a disability and the individual diagnosed with such syndrome is entitled to protection under the law as a person with a disability. In other words, she equates a diagnosis in DSM-IV with "a significant impairment in a major life activity". Caffeine addiction appears as a diagnosis in DSM-IV.
  • -- In two different places, Ms. Shalit refers to learning disabilities as "a protected category under the law." Learning disabilities are not protected by federal law. The laws protect PEOPLE with disabilities from discrimination, including people with learning disabilities. That understanding lies at the heart of what the Rehab Act and ADA are all about.
• Perhaps the most damning evidence of bias lies in the terminology used to depict persons with learning disabilities and those who support their right to access. The snide labels and phrases are skillfully scattered throughout the fabric of the text in such a way that they may be read as statements of fact rather than malicious judgments:
  • -- "... the aggrieved provost took a cleaver to BU's bloated Office of Learning Disabilities Support Services, a half-million dollar fiefdom...
  • -- "...Anne Schneider, the Park Avenue fund-raising doyenne who spearheaded the creation of BU's program a decade ago..."
  • -- "Westling and BU's new guard insist that they have no animus against those with Œgenuine' learning impairments; they simply want to weed out the impostors." (NOTE: In the BU decision handed down last week, Judge Patti Saris noted that during the trial BU failed to produce even a single example of a student who was "faking" a learning disability in order to abuse the system.)
  • -- "Or is (the BU) lawsuit the reductio ad absurdum of identity politics and tort madness -- Harrison Bergeron meets Perry Mason in The Case of the Litigious Lollygaggers?"
  • -- "...Yet, thanks to the interlocking protections of three powerful federal disability laws, refusal to accommodate even the most dubious claims of learning impairment is now treated..."
  • -- "Any hypochondriac can test himself (for learning disabilities)..."
  • -- "But as their clinics swarm with hordes of pushy parents and catatonic collegians, all hankering for a diagnosis of intractable infirmity..."
  • -- "There is reason to suspect that fast-track students, and their parents, have figured out that a little learning disability can be an advantageous thing..."

In the end, this malevolent diatribe provides an interesting exercise in journalistic dissection (see above), but has little or nothing of substance to bring to a legitimate discussion of the issues. Let's move on...

(EDITOR'S NOTE: The article ticked me off -- could you tell?!)
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<<<THE THREE FACES OF EVE --
You Don't Know What Is Happening Unless You See ALL the Pieces>>>

In early June, three medical students at Marshall University who have Attention Deficit Disorders filed for a preliminary injunction against the National Board of Medical Examiners to force them to provide accommodations they had been refused for their upcoming Medical boards (Price v. USMLE) In a brief hearing before an administrative law judge, the students lost their bid for accommodations. Early last week the American Association of Medical Colleges (AAMC) sent a letter to members appraising them of the Price decision and stating ""I encourage you to review this with your legal counsel with respect to school policies."

This letter will have much more limited impact than the New Republic piece. It was only sent to people involved in medical school issues and its focus was on how this case impacted on medical school education. It is a good example, however, of how negative coverage can be the impetus for positive results. The information contained in the AAMC letter regarding the Price case is fairly and accurately reported BUT, here is the rest of the story...

In early July, a medical student from Tulane University who has a learning disability filed suit against the National Board of Medical Examiners to force them to provide accommodations to him on an upcoming medical board examination. The suit alleged that the NBME had refused to grant appropriate accommodations and that their policies in the consideration and granting of such accommodations were obstructive. On the eve of trial, the NBME settled the suit and agreed to provide accommodations to the student on this and all future examinations. (NOTE: The NBME has a habit of settling suits that it doesn't think it can win just before they come to trial, thus avoiding an adjudicated decision going on record.) The AAMC letter did not mention this suit or its resolution in its message to medical school personnel.

The letter also did not discuss the more extensive trial and the 131-page finding in the Bartlett case (see above reference in the review of the New Republic piece). It did not suggest a connection between the judge's conclusions in Bartlett and the issues at hand in discussing accommodations for medical students with disabilities on professional certification exams. Fortunately someone else did!

Readers of this newsletter are directed to the archives of the DSSHE-L list for August 14th. (http://listserv.acsu.buffalo.edu/archives/dsshe-l.html). On that date, JoAnne Simon, the attorney of record in Bartlett, posted her well-written response to the AAMC letter ("Recent case controversy - LD and licensing exams") and recommended action to be taken by service providers in responding to the suggestion that accommodations to this population are inappropriate or in some way ill-advised.

Make a copy of the posting. Acquaint yourself with the circumstances that let to the denial in Price and to settlements in other circumstances. Once you have looked on all the faces of this issue, you will be ready to bring it to the attention of appropriate parties on campus who need to know how recent case law and legal actions are helping to shape policy in this area.
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<<<THE WORLD ACCORDING TO GARP... er... Westling?>>>

Finally, the decision in the Boston University lawsuit. This case was tremendously important to the field because: (a) it was high profile. Jon Westling and his minions did their best to put their views on the subject in front of anyone who would listen. Thus, this case got much more coverage in professional publications (such as the Chronicle of Higher Education) and the popular press (from Newsweek to the New Republic) than any postsecondary disability case in recent memory; and (b) this was not about whether the institution made the right or wrong decision in its treatment of a student with a disability; This was a challenge to a whole class of students with disabilities and brought the credibility of the field of disability services into question.

The following piece ("Lessons We Learned from the Boston University Decision") is included at the end of this newsletter purposely to make it easy to extract and forward on to any and all faculty/staff/administrators whom you think may profit from it. It has been written to "stand alone". My favorite quote from a speech by Patrick Henry has always been

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LESSONS WE LEARNED FROM THE BOSTON UNIVERSITY DECISION
Jane E. Jarrow, Ph.D.
Disability Access Information and Support

The following review of the recently released Boston University decision is offered as commentary on how the central issues of this case, and the findings of the court, can be used to help shape policy and define the direction of postsecondary institutions in meeting their responsibility to students with Learning Disabilities (LD), Attention Deficit Disorders (ADD), and Attention Deficit Hyperactivity Disorders (ADHD). It is not a detailed analysis of the legal findings in the case -- the author is not an attorney and there will be many others who are better prepared to discuss the case precedents and legal principles on which the decision is built. Rather, the thoughts that follow are offered in the hopes of clarifying for administrators, service providers, and persons with disabilities the lessons learned from examining the court's response to the policies, procedures, and actions of Boston University in its treatment of students with disabilities.

A quick review: The lawsuit was a class action suit brought by 10 students with disabilities against the institution and its administration. It primarily centered around actions taken by President Jon Westling when he was the Provost of the university in the Fall of 1995. The students maintained that the policy changes implemented by Westling regarding the documentation of their learning disabilities, the provision of accommodations, and the possibility of course substitutions, resulted in discrimination by denying equal access to the educational opportunities available to students without learning disabilities at BU. Specifically, the plaintiffs alleged that Boston University discriminated against learning disabled students by (1) establishing unreasonable, overly-burdensome eligibility criteria for qualifying as a disabled student; (2) failing to provide reasonable procedures for evaluation and review of a student's request for accommodations; and (3) instituting an across-the-board policy precluding course substitutions in foreign language and mathematics.

In a decision released on August 15, 1997, Judge Patty Saris ordered the univesrity to "cease and desist implementing its current policy of requiring that students with learning disorders (not ADD or ADHD) who have current evaluations by trained professionals with masters degrees ... be completely retested by professionals who have medical degrees, doctorate degrees, or licensed clinical psychologists in order to be eligible for accommodations." Further, the court ordered Boston University to propose "...a deliberative procedure for considering whether modification of its degree requirement in foreign language would fundamentally alter the nature of its liberal arts program. Such a procedure shall include a faculty committee set up by the College of Arts and Sciences to examine its degree requirements..." and to make this determination. The judge awarded modest monetary settlements as compensatory damages to some of the students who brought the case and who testified or submitted affidavits as part of the testimony put in evidence during the trial.

So what have we learned?

We **DID NOT LEARN** anything new about the existence of learning disabilities or the testing needed to establish a learning disability. Boston University did not dispute the existence of learning disabilities or the inclusion of persons with learning disabilities in the protected class.

We **DID LEARN** that while institutions have a right to demand complete and appropriate documentation from a legitimate source before providing protection under the law for students with learning disabilities, institutions do not have the right to develop and stringently enforce overly-burdensome requirements on the nature of that documentation. Specifically, the judge noted that the need for current documentation is legitimate but blind-adherence to a "recent-within-three-years" policy is not acceptable if there is no indication that there would be major changes in status solely because of the passage of time. Moreover, the judge ruled that BU did not have the right to place narrow parameters on the credentials of the diagnostician (i.e., ONLY a medical degree, doctorate, or clinical psychologist) if professional consensus indicates that a broader range of individuals may be legitimately qualified to offer a diagnosis.

We **WERE REMINDED** that learning disabilities and ADD/ADHD are different disabilities and that policies and procedures appropriate to one are not necessary appropriate to the other. Specifically, the judge did not dispute BU's insistence on current documentation for ADD/ADHD or the need for evaluations to be conducted by diagnosticians with more advanced training and expertise. She noted that current evidence indicates that ADD/ADHD is often accompanied by co-existing physical and psychological conditions, is frequently treated by medication, and may have varied impact on the individual across time.

We **DID LEARN** that the process for evaluating documentation and accommodation requests must be grounded in objective review by knowledgeable individuals. The judge found that the procedures implemented by Westling and his assistant Craig Klafter (neither of whom have knowledge or experience in this area) during the 1995-96 school year were in violation of 504/ADA but the current process is acceptable as BU has hired an appropriately experienced specialist in this area to carry primary responsibility for such decisions.

We **WERE REMINDED** that the provision of accommodations must be based on documentation that demonstrates need for the accommodation in order to have equal access. The establishment of a label -- "this student has a learning disability" -- does not entitle the student to accommodation, only protection from discrimination.

We **DID LEARN** that institutions may not make wholesale changes to accommodation policies and procedures without warning, thus having the effect of delaying or denying accommodation. Accommodation policies and procedures should be established and maintained on the basis of measured consideration and in good faith; they should not be subject to the whim of biased individuals pursuing personal agendas.

We **WERE REMINDED** that institutions have a duty to seek appropriate reasonable accommodations for persons with disabilities to assure that they are not denied opportunities solely on the basis of disability. While the court recognized the right of the institution to refuse to modify degree requirements that it determines are a fundamental part of its academic program, it demanded that such refusal be made on the basis of honest deliberation of the alternatives and a rationally justifiable conclusion that such modification would result in a substantial alteration of the program. BU failed in this obligation as it "simply relied on the status quo as the rationale for refusing to consider seriously a reasonable request for modification of its century-old degree requirements."

In the end, the findings in this case were (appropriately) a narrow victory for the students based solely on the evidence presented, and with the mitigating circumstances created by the substantial changes in policy/procedure already implemented by BU in the time since the lawsuit was filed (July, 1996). However, it may be useful for administrators and service providers to study this case and use it as a benchmark in determining how their own response to students with disabilities would stand up under scrutiny.

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