Court Ruling on Testing Accommodations

“Assistive technology is not frozen in time: as technology advances, testing accommodations should advance as well.”

This is an excerpt from a terrific and highly relevant judicial ruling positively affecting disabled students. The ruling stems from a case brought by a legally blind law school graduate; the implications are extremely broad, reaching out and touching a range of disabilities, including dyslexia.

Basically, the Court ruled that a person with a disability is entitled not to just whatever accommodation the testing agency offers, but rather to the “best” and most effective accommodation that ensures that the test is a measure of that individual’s abilities and not his/her disability.

From the United States Court of Appeals for the Ninth Circuit, made public on January 4, 2011.

Enyart v. National Conference of Bar Examiners

Excerpt from the Opinion by Judge Silverman:
[7] Notably, Congress did not incorporate 45 C.F.R. 84.12’s “reasonable accommodation” standard into § 12189. Instead, § 12189 states that entities offering licensing exams “shall offer such examinations … in a place and manner accessible to persons with disabilities or offer alternative arrangements for such individuals.” 42 U.S.C. § 12189. One reasonable reading of § 12189’s requirement that entities make licensing exams “accessible” is that such entities must provide disabled people with an equal opportunity to demonstrate their knowledge or abilities to the same degree as nondisabled people taking the exam—in other words, the entities must administer the exam “so as to best ensure” that exam results accurately reflect aptitude rather than disabilities. DOJ’s regulation is not based upon an impermissible construction of § 12189, so this court affords Chevron deference to 28 C.F.R. § 36.309 and applies the regulation’s “best ensure” standard.
People in law and others who champion individuals with disabilities are very excited about this ruling. The phrase “best ensures” has been part of the regulations of the original ADA issued in the early 1990’s, and apparently this is the very first instance of its being quoted in a judicial ruling.

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