A paradigm shift for identifying learning disabled students in higher education, independent schools, and admissions testing

Is a person whose academic achievement exceeds national average justly entitled to accommodations as “learning disabled?”   What if the person not only exceeds average on performance measures, but also exceeds average through actual attainment, such as a Bachelor’s Degree, perhaps a graduate degree, or even entrance into medical school? Does such a top-flier really need accommodations? Or is it really a matter of taking advantage of benefits entitled for the genuinely disabled? 

“The law compels accommodations for someone who is ‘disabled’ as that term is used in the Acts, but not for everyone who may have a condition described as a ‘learning disability.’” Wong v. Regents of the University of California, C.A. No. 01-17432, 6452, n.6, 379 F.3d 1097, 1109 n.6 (9th Cir. 2004).  The question of entitlement to accommodations first asks if the person is impaired and asks second if the impairment substantially limits the person. The Wong decision and other cases looked at the second question. Changes in the law on how public schools identify learning disabilities, may require colleges and testing organizations to look more closely at the first question, too.

Wong is one of the leading cases in this area of law. While a third-year medical school student, Wong sought accommodations. The court ruled that, although he had an impairment, he was not disabled under the law. The real question, said the court, at 6431, was if the impairment “substantially limited his ability to learn as a whole, for purposes of daily living, as compared to most people.” (Emphasis added.) Wong’s record of academic success belied his own arguments as a “student cannot successfully claim to be disabled based on being substantially limited in his ability to ‘learn’ if he has not, in fact, been substantially limited. . . .” 6452. (Perhaps the question is whether he really was impaired?)

A more recent case involving test accommodations, Love v. Law School Admission Council, Inc., 2007 WL 737785 (E.D. Pa.), resulted in a similar outcome. Like Wong, the parties did not dispute that plaintiff presented an “impairment” based on discrepant test scores. Indeed, LSAC considered whether an applicant’s measured cognitive ability, or IQ, and measured academic achievement scores differed by 1.5 standard deviation (typically, 15 points) to decide whether the applicant has a disabling condition. But the plaintiff, who had a record of academic success, argued that his record of success should not be considered. The court rejected the argument, finding that all the evidence showed plaintiff was not substantially limited, that is, his disabling condition (based on discrepant scores) did not impair his ability to learn.

In the K-12 public school arena, the Individuals With Disabilities Education Improvement Act of 2004 (“IDEA”) largely controls. The 2004 IDEA re-authorization shifted the legal criteria necessary to identify a student with a Specific Learning Disability. Previously, the “discrepancy” model, like the LSAC’s 1.5 deviation requirement, prevailed. In this model, even a high IQ genius could be “learning disabled” as a person with a 140 IQ would be “impaired” if her achievement test scores were “only” 122 (a score in the “superior range” and well above national average). Seems unfair when comparing her to someone at the low or below average range in both IQ and achievement, and especially unfair compared to persons with significant cognitive and developmental disabilities.

This discrepancy model, while not entirely retired from the public schools (and in LSAC), has taken a back seat to the so-called “Response To Intervention” model. In this model, which is still being developed in practice, a student with high cognitive abilities that allow him/her to compensate for other “deficits” are not likely to manifest a disability but will show a response to instruction. Theoretically, students who can learn and respond to appropriate instruction will learn and will not need accommodations and interventions. 

While this change may alter the numbers of students entering college with a record of a disability, perhaps more importantly, it should begin the paradigm shift for identification of a learning disability in post-secondary settings in the first place, both clinically and legally, meaning. As with Wong and Love, we will still consider the legal requirement of a substantial limitation, but we should also start taking a harder look at whether someone performing average or better is in fact impaired and whether someone is really impaired when successfully responding to intervention. Do we really need to use society’s resources accommodating “learning disabled” graduate school applicants, graduate students, even college students, who, quite frankly, are more than likely (above average) to be successful in life?

Fundamentally, a disabling or impairing condition is based on comparison to expected norms, i.e., “function judged to be significantly impaired relative to the usual standard of an individual of their group” or, like legal definitions, “impaired in a way that substantially limits activity especially in relation to employment or education.” Legal definitions are similar, emphasizing that the supposed impairing condition must substantially interfere with learning.  But above average tested learning achievement and, especially, above average learning success, hardly renders one impaired in ability to learn compared to the general population. 

A player in the big leagues is clearly a top-performer in baseball compared to the likes of me. No one could rightly think it fair for the player to say, “I have the potential to hit .400, but I’m hitting only .293. I need you to pitch the ball slower, straighter, and at the sweet-spot each time in order to measure up.” Is it fair for graduate students who have already greatly exceeded educational achievement norms, to say, “despite my achievement, I need more time to think through my answers on this test?” 

Pity for poor student burdened by both average measured intelligence and average measured achievement.