The Right Coast

January 15, 2005
A Bit of the Secret World of the ADA Peeks Out
By Gail Heriot

While I am sympathetic to many of the aims of the Americans with Disabilities Act, I’ve never been a fan of the ADA itself. But I’ll save my litany of complaints for another day. Right now my problem is not with the Act but with its implementation. On some college campuses, ADA accommodations for the learning disabled are administered by people who have never taken a similar exam and are unaware of what the professor is attempting to accomplish in giving the exam. And they don't ask. Under the circumstances, it’s impossible to do a good job at devising the accommodations–even making the dubious assumption that accommodations giving extra time to slower readers are a good thing in the abstract.

First of all, not all exams are the same. How can the ADA commissar know whether the student should be given 50% more time than other students or 100% more time if he's never looked at the particular exam? One size doesn't fit all. Some exams require the student to do a lot of reading and a little writing. Others require a little reading and a lot of writing. If a particular student has a reading problem that makes him read half as quickly as the rest of the students, he would need only 5% more time on one test and 75% more time on another in order to "erase" his disadvantage.

More broadly, how can the ADA commissar know when it would be better to change the entire exam, so that all of the students are freed from time pressure, not just those found to be learning disabled? The answer is that he can’t–at least not when interaction with the faculty is kept to a minimum as it is on many campuses.

USD, where I work, may be among the places where implementation of the ADA leaves something to be desired, though I suspect it is no worse than the average institution. A few years ago, one of my colleagues commented to me that she had heard that at some colleges as many as one third of students are receiving ADA-mandated accommodations on exams. At the time, neither of us had any reason to believe that this was true at USD (and I still don’t), but I had noticed that each semester one or two of the essays seemed much longer than anyone could humanly write in the time period I had allotted, and I wondered whether the total number of accommodations could be much higher. I therefore asked at the records office how I could find out how many of my students were receiving accommodations and what kind. The word came back to me in precisely these terms: “It’s none of your business.”

It was an odd response, since it seems to me that it is precisely my business. I’m a law professor. Among the many things that I do, I draft and grade exams that test law students on what they have learned and how well they can apply it. It's my job t make sure those exams are the best they can be.

Part of what I test for is the ability to spot legal issues quickly. As a former practicing lawyer, I can tell you that skill is important. Successful lawyers must to be able to do it–in the middle of a trial, in the middle of a deposition, or in the middle of a meeting with a client. That’s why I try to test on it. If one or two students are getting extra time, I don’t think that destroys the integrity of the exam. But if a large fraction of the class is getting extra time it certainly does, the results of such an exam are apt to be quite random. Before that point, it’s probably better to beat a retreat and devise an exam that doesn’t test for speedy analysis, even though something is lost with such a change. The problem is that if “[i]t’s none of my business,” I don’t know about it, and I cannot adjust the exam accordingly.

Why am I bringing this up now? While grading exams this past week, I ran across an essay in which a student had written considerably more than any other student. But this time I didn’t have to wonder whether the student had gotten extra time. The student had carefully written on the exam the amount of time that had been allocated–50% more than the rest of the class.

Obviously, the amount of time given this student was too high. Allowing 50% extra time gave the student the ability to write significantly more than anyone else. It is extremely unlikely that but for this learning disability, this student would have been the fastest gun in the West. Of course, one can hardly blame the individual student for this. All the student knows is that a professional has concluded that he or she has a learning disability and that a time advantage should therefore be granted. The student has no way of knowing that his or her essay came out longer than anyone else’s. (And, of course, there's nothing I can do but grade the exam as if the proper amount of time had been allocated; the damage is done.)

I don't have any confidence that the ADA can be amended any time soon to make it sensible. But I don't see why the system can't at least become a little more transparent. I'm not asking to know which students are getting accommodations; indeed I don't want to know. But I do want to know at minimum the number and type of accommodations that are being given.