Bar Examiners, Colleges and Universities May All Want to Reconsider the Extent of Their Documentation Requests When Receiving Accommodation Requestss

January 9, 2024

Today’s blog entry come from the Supreme Court of Maryland in a case called In the Matter of Antavis Chavis, here. The case, a 4-3 decision in favor of the plaintiff, should have high-stakes testing entities, and even colleges, and universities reevaluating the documentation they demand before deciding to make accommodations/modifications for an individual with a disability. As usual, the blog entry is divided into categories and they are: facts; court’s discussion of when testing accommodations must be provided; court’s discussion of whether a disability existed; board rules/operations need to be reconsidered; plaintiff’s test accommodation request was reasonable; dissenting opinion by Justice Booth; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

Facts

Plaintiff graduated from law school and petitioned to take the Maryland bar exam. Plaintiff has ADHD and requested 50% extra time to take the bar exam. In support of his request, he attached an ADHD verification form produced by Southern University Law Center, from which he graduated law school. In particular, the doctor completing that form said the plaintiff met the four criteria in the DSM for ADHD inattentive type. He said that his diagnosis was based upon an evaluation of the plaintiff’s personal experience as well as neuropsychiatric testing. He indicated that self-reported symptoms of ADHD included poor attention and focus, taking longer to complete tasks, and often not completing tasks due to distraction. He also said that plaintiff was diagnosed with ADHD at age 8. Further, he said that the plaintiff had difficulty completing tasks, often left them undone, at work and at home. Finally he noted that the plaintiff had taken Adderall, a commonly used prescription medication to treat ADHD. He then recommended that the plaintiff be given additional time to complete exams and an isolated testing environment to limit distractions if possible. He also stated that plaintiff would be adversely affected if not given additional time and that this particular kind of ADHD typically responds well to accommodations.

Plaintiff also attached to his accommodation request a memorandum from the Health, Wellness, and Disability Director of the Southern University Law Center. In that memorandum, it said that disability services would grant plaintiff’s request protect accommodations, he would get 50% additional time to take exams and quizzes and the ability to take them in a low distraction testing room. It also said that those accommodations were required by §504 of the Rehabilitation Act. Plaintiff also attached a very similar memorandum from a certified rehabilitation Counselor of the Accessibility Resource Center at the University of the District of Columbia David A. Clarke School of Law, where he also took classes at.

Once the State Board of Law Examiners received the request, they turned it over to a Dr. Lewandowski. Without a citation to any legal authority, Dr. Lewandowski said that for an applicant to qualify for a test accommodation, the applicant had to have an evidence-based diagnosis of a mental or physical disorder from a qualified professional, which ideally would not be based upon the self-report of the person himself. The applicant also had to show that the disorder substantially limited them in a major life activity as compared to most people. Dr. Lewandowski said that the plaintiff did not meet the first criteria because there was no objective data to prove the validity of the diagnosis, and that he could not confirm the diagnosis based on the little information in the file. He also said there was insufficient documentation to satisfy the second criteria as well. Accordingly, the State Board of Legal Examiners in reliance on that opinion of Dr. Lewandowski rejected plaintiff’s request for accommodation to take the bar exam.

Dr. Lewandowski reviews accommodation request for multiple jurisdictions, medical boards, and business boards. He has done that since 1994 and reviews between 100 and 200 test accommodation requests every year.

Plaintiff appealed and after that appeal did not go well, he appealed it to the Maryland Supreme Court.

Court’s Discussion of When Testing Accommodations Must Be Provided

While the ADA does not have any express provisions stating that public entities have to provide reasonable accommodation for testing to those requesting such accommodations based upon their disability, various parts of the ADA when read together establish the principle.
42 U.S.C. §12132 (title II of the ADA), prohibits public entities, which include the Maryland Judiciary and agencies within it, from discriminating against individuals with disabilities.
Title I of the ADA (employment provision), provides that discrimination against a qualified individual on the basis of disability includes the failure to make reasonable accommodations to a qualified person with a disability unless an undue hardship exists.
42 U.S.C. §12189 (§309 of the ADA), provides any person offering examinations or courses related to applications or licensing for professional purposes has to offer such examinations or courses in a place and manner accessible to persons with disabilities or offer alternative accessible arrangement for such individuals. While the word person is not defined in that section, it is defined in title I of the ADA, which provides that the term person has the same meaning as given to it in §2000e. 42 U.S.C. §2000e(a) provides in relevant part that the term person includes government and governmental agencies.
Courts in other jurisdictions have interpreted 42 U.S.C. §12189 as requiring that a State Board of Law Examiners or a State Bar, which are public entities, must provide reasonable testing accommodations for applicants establishing their disability.
For a plaintiff to succeed in a failure to provide accommodations in a testing situation, the plaintiff has to show: 1) that he is disabled; 2) his request for accommodations was reasonable; and 3) those requests were denied. Further, an individualized analysis is always required for each and every request for accommodations and the determination of whether the accommodation is reasonable must be made on a case-by-case basis.
Although no language in the ADA expressly requires public entities to make reasonable test accommodation for applicants establishing disability, it is clear that 42 U.S.C. §12189 gets interpreted as applying to public entities. Also, once an applicant establishes a disability under the ADA per 42 U.S.C. §12102(1), the applicant must also show that the requested accommodation is reasonable.

III

Court’s Discussion at the Whether a Disability Existed

42 U.S.C. §12102(1)(A) provides that a person with a disability is a person with a physical or mental impairment that substantially limits one or more of its major life activities (in a footnote, the court notes that disability also includes a person with a record of such an impairment or a person who is regarded as having such an impairment).
The amendments to the ADA at 42 U.S.C. §12102(4)(A) make clear that the definition of disability have to be construed in favor of broad coverage of individuals under the ADA to the maximum extent permitted by the terms of the ADA.
Legislative history makes clear that Congress intended to make it relatively simple for an individual to establish disability. Also, in the section of the ADA Amendments Act of 2008 containing legislative findings and purposes, Congress declared the question of whether an individual’s impairment as a disability under the ADA should not demand extensive analysis. Those findings went on to say that one purpose of the amendments to the ADA was to reject the Supreme Court’s reasoning in Toyota Motor Manufacturing, Kentucky v. Williams, that the ADA needed to be interpreted strictly to create a demanding standard for qualifying as disabled. Congress went on to state that it expected the EEOC to revise the regulation so that the demanding standard and for the Supreme Court held was a substantial limitation on a major life activity (significantly restricted), was no longer the standard.
The EEOC in response to the ADA Amendments Act did revise the regulation. That regulation now reads that an impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting. 29 C.F.R. §1630.2(j)(1)(ii). The regulation also acknowledges that the phrase “substantially limits,” is not meant to be a demanding standard and that the threshold issue of whether an impairment substantially limits a major life activity should not demand extensive analysis. 29 C.F.R. §1630.2(j)(1)(i),(iii).
Conclusions with respect to disability must be made on an individualized fact specific case-by-case basis.

Board Rules/Operations Need to Be Reconsidered

The ADA establishes a floor or minimum standards for the protection of rights of individuals with disabilities. While the ADA specifically allows States to give more protection than what is established by the ADA, States cannot go below the floor is set by the ADA by requiring individuals with this ability to meet a higher standard. Therefore, the ADA preempts inconsistent state law when appropriate and necessary to effectuate a reasonable accommodation. That is, the court has the obligation under the ADA to ensure that the decision reached by the state authority is appropriate under the law and in light of the propose alternatives. To hold otherwise, would allow a state to adopt requirements imposing unreasonable obstacles to individuals with disabilities and then defend itself successfully by saying that the state authority considered possible modifications and rejected them.
Board rules cannot impose a higher burden than the ADA when it comes to determining whether to grant an applicant’s test accommodation request. That is, board rules cannot raise the requirements established by the ADA for accommodation requests to be granted.
While the ADA requires proof that the applicant has a disability and that the requested test accommodation is reasonable, there is no express obligation under the ADA for an applicant to prove that the requested test accommodation would be consistent with the nature and purpose of the examination and necessitated by the applicant’s disability.
The question of whether a requested accommodation is consistent with the nature and purpose of the uniform bar exam and necessitated by the applicant’s disability is intertwined with the question of reasonableness and is not a requirement imposing additional hurdles or burden of proof. Instead, it is part of the reasonableness analysis.
The requirement that a test accommodation is reasonable is satisfied in part by showing that a person has an impairment involving a need for a test accommodation, which is a low threshold. For example, where a person can establish that they have a physical or mental impairment substantially limiting one or more major life activities, such as learning, reading, concentrating, thinking, communicating, and working, that would in most instances automatically demonstrate that the person has an impairment making testing accommodations on the bar examination necessary.
A basic premise of the bar examination is that it is an exam intended to test an applicant’s knowledge of designated areas of the law.
A request for a test accommodation is consistent with the nature and purpose of the bar examination so long is that basic purpose can be achieved. On the other hand, a request for a test accommodation might be inconsistent with the nature and purpose of the examination where, for example, the request seeks to excuse an applicant from taking all or a portion of the bar examination.

Plaintiff’s Test Accommodation Requests Was Reasonable

Plaintiff’s request of 50% additional time was reasonable and consistent with the nature and purpose of the examination and necessitated by his disability.
42 U.S.C. §12102(4)(A) mandates that the ADA be construed in favor of broad coverage of individuals with disabilities. It also mandates that the question of whether an individual has a disability should not demand extensive analysis. Finally, it mandates that the phrase “substantially limits,” should not be strictly interpreted, deemed to set forth a demanding standard, or viewed at the same as the phrase “significantly restricts.”
DOJ has promulgated a regulation providing any private entity offering examinations or courses related to applications or licensing must assure that when considering request for modification, accommodations, or auxiliary aids or services, must give considerable weight to documentation of past modification, accommodation, or auxiliary aids or services received in similar testing situations. 28 C.F.R. §36.309(a), (b)(1)(v).
36.309 gets interpreted by the DOJ (in Appendix A to Part 35), as applying also to public entities offering examinations related to applications or licensing and not just to private entities offering such examinations. Therefore, when considering a request for testing accommodations, a public entity offering a licensing examination, such as the bar examination, has to give considerable weight to documentation of past documentations received in similar testing situations.
Going forward, a two-step process must be employed for figuring out whether an applicant for the bar exam is entitled to reasonable accommodations. Those steps are: 1) is the person a person with a disability; and 2) is the test accommodation requested by the applicant reasonable, consistent with the nature and purpose of the examination and necessitated by the applicant’s disability. The first prong of the test requires a person to satisfy the definition of a disability under the ADA. The second prong of the test requires that the accommodation be reasonable and incorporates language from a board rule requiring that the accommodation be consistent with the nature and purpose of the examination and necessitated by the applicant’s disability. In a footnote, the court notes that the two-step test is very similar to the standard for a failure to accommodate claim involving an employer under title I of the ADA.
Plaintiff established that he has a mental impairment substantially limiting the major life activities of learning, reading, concentrating, thinking, communicating, and working. The documentation he submitted was sufficient for that purpose.
Lewandowski’s opinion was not entitled to any degree of deference or be treated any differently than the way courts assess any other expert opinion.
It is possible that when Dr. Lewandowski came up with his conclusions that he was relying in part on information put forth by the State Board of Law Examiners indicating that all reports of health professionals supplied by an applicant seeking a testing accommodation must reference evaluation conducted within the past three years and, in some cases of permanent disability, testing conducted within the past five years if the applicant was over the age of 18 at the time of testing.
Lewandowski’s report went beyond a typical expert report and veered into setting forth his own definition of the necessary requirements under the ADA. That simply doesn’t work because an expert is not permitted to express an opinion on a question of law.
No legal support exists stating that to qualify for a test accommodation, an applicant has to prove an evidence-based diagnosis. Nothing in the ADA requires proof of a diagnosis, let alone proof of an evidence-based diagnosis in order to gain relief under the ADA. The definition of disability under the ADA does not refer to establishing a diagnosis. Instead, it simply requires that the individual has a physical or mental impairment substantially limiting one or more major life activities. The EEOC regulation regarding definitions under the ADA, is also silent as to diagnoses. In fact, courts have held that a diagnosis is not necessary for an ADA claim to succeed. Finally, the State Board of Legal Examiners counsel acknowledged at the show cause hearing that a formal diagnosis is not necessary. So, Dr. Lewandowski used a criterion exceeding the definition of the word disability under the ADA and applied a higher standard in evaluating the request than what the ADA requires.
Even though plaintiff did not have to do so, plaintiff did prove that he was diagnosed with ADHD. Dr. Thiebaud’s diagnosis and findings concerning the plaintiff having ADHD were sufficient to establish a disability even though they were not accompanied by specific test results and were partially based upon information that the plaintiff self-reported.
Since the ADA does not require a diagnosis in the first place, it follows that the ADA does not require diagnosis to be supported by specified test results.
Routinely requiring an applicant for admission to the bar to submit specific test results in support of a position’s diagnosis when requesting a test accommodation is inconsistent with 28 C.F.R. §36.309(a), (b)(iv), which provide that any private entity offering examinations or courses are related to applications or licensing have to assure that any request for documentation, if such documentation is required, is reasonable and limited to the need for the accommodation requested.
Self reporting plays a critical role when it comes to establishing just what is going on with a person’s mental health (or I would add even a learning disability). So, it is unsurprising that no citation or evidence exists that support challenging a finding of disability on the basis that the doctor making that finding relies in part on a patient’s self-report. In a footnote, the court notes that the state Board of Law examiners may wish to reconsider a current rule prohibiting self-reporting to a healthcare professional as a basis for getting an accommodation.
Plaintiff not seeking a diagnosis or test accommodation until law school appears to have been held against him.
It certainly makes sense that a person could have a hidden disability for years but then get a proper diagnosis and/or make reasonable accommodation requests later in their educational career. It is also entirely understandable that an applicant may not seek a diagnosis and/or test accommodations until the applicant is well into adulthood. Reasons why such disclosure may be late include an incorrect view that attention issues are behavioral problems rather than learning disabilities, parents seeing discipline as a solution to such issues, and fear of embarrassment or stigmatization in school.
Establishing whether a requested accommodation is consistent with the nature and purpose of the bar examination and necessary poses no greater burden than what is inherent in the reasonableness requirement of the ADA. The accommodation recommended by plaintiff’s Dr. were carried out by two different law schools and those law schools felt that the documentation he submitted was more than sufficient.
An applicant requesting accommodation for the bar examination is not required to demonstrate that a prior test accommodation was given in law school or in any other setting. The applicant is also not required to demonstrate a nexus between the bar examination and any other test for which an accommodation may have been afforded in the past. While such a demonstration could be helpful, it isn’t required.
Considerable weight must be given to the plaintiff having been given test accommodation by two different law schools and that the uniform bar exam and law school exams involve similar testing situations. Both tests are hours long, strictly timed, intensive written examinations on various legal topics comprising multiple-choice questions, prompts for essays, and/or similar assignments.
The court declined the invitation to adopt as a rule for assessing test accommodations requesting that the DOJ’s guidance regarding proof of past testing accommodations be sufficient to support a reasonable accommodation request because that guidance is just a guidance. Even so, the court was persuaded that proof of testing accommodations in law school generally should be given considerable weight in determining whether the same testing accommodation is warranted for bar examination. That is, testing accommodations given in law school are certainly relevant to testing accommodation requested, and must be given considerable weight.
It is possible that consulting with other experts about testing accommodation request beyond Dr. Lewandowski would provide the State Board of Law Examiners with a wider range of perspectives than it currently gets. So, the State Board of Law Examiners may wish to consider using additional experts to evaluate testing accommodation request.

Dissenting Opinion by Justice Booth.

Insufficient evidence exists to determine whether the plaintiff has ADHD.
Evidence of childhood diagnosis is not required to receive an ADA accommodation and should not be held against the plaintiff.
Testing accommodations given in law school are certainly relevant to a test accommodation for the Uniform Bar Exam and the State Board of Law Examiners should give prior accommodation considerable weight in accordance with the Department of Justice’s regulations and guidance document. That said, the verification form submitted by the plaintiff was incomplete and did not satisfy the accommodation requirements established by the University.
The majority opinion goes too far in attacking the credibility of Dr. Lewandowski and in demanding additional experts be used going forward.
It was not unreasonable or clearly erroneous to conclude that there was no objective evidence or testimony presented by the plaintiff to establish that he had been diagnosed with ADHD. Also, there was no objective evidence or testimony relating to a showing of substantial limitation and any major life activity, nor how there were limitations regarding functions required on the Maryland bar exam.
The solution is to remand the matter to the State Board of Law Examiners with instructions to give the plaintiff an opportunity to correct any deficiencies in the accommodation request before the filing deadline for the next administration of the bar examination.

VII

Thoughts/Takeaways

All titles of the ADA share a reasonable accommodation/modification scheme for persons with disabilities. They also share the same definition of disability. That said, they each have their own statutory and regulatory provisions as well with their own guidances. The trick often is getting title II and title III to do what title I does when the statutory and regulatory provisions are different. This case says that title I provisions can be very instructive when dealing with similar issues in title II and in title III.
Title I of the ADA specifically deals with excessive documentation issues. However, title II and title III only have a reference to unnecessary medical inquiries in the Technical Assistance Memorandum for each of those titles. This case strongly suggests that excessive documentation concerns apply across title I, title II, and title III.
From my experience, it is not unheard of for colleges and universities to demand a whole battery of tests before disability services will grant a person accommodations. Colleges and universities may want to reconsider just how much documentation they request. They also may want to reconsider just how current they demand that documentation be, especially for disabilities that don’t improve or are static over time.
Establishing a disability for the most part does not require extensive analysis.
The ADA Amendments Act did not overrule Sutton v. United Airlines approach to evaluating whether working is a disability.
12189 applies to public entities even though it appears in title III of the ADA.
People making determinations as to whether a disability exists need to be familiar with the definition of a disability under the ADA and how it works. They should not be using a higher standard than what the ADA demands.
State Bar rules have to at least be on the level demanded by the ADA and not less, though they can go further.
It is not explicitly stated but you can see “fundamental alteration,” analysis between the lines of this opinion. For example, look at the court’s discussion of what is not a reasonable accommodation/modification. See also, PGA Tour v. Martin, here.
Prior accommodations for similar tests must be given considerable weight. From reading the opinion, that weight isn’t conclusive but it’s close. It also isn’t conclusive that prior accommodations were not given for similar testing situations.
50% additional time for a person with ADHD is a pretty standard request and entities are going to have a hard time rejecting requests when given an ADHD diagnosis.
Evidence-based diagnosis is not necessary to establish a disability. In fact, a diagnosis of any kind is unnecessary.
Demanding a childhood diagnosis to establish a disability is not a good idea. It never was and especially after this decision, it isn’t now.
Much of this decision has me thinking about federal pleading requirements. Depending on when you went to law school, you would have learned that notice pleadings was the rule in federal courts. Iqbal/Twombly changed all of that. Now, you want to give as much facts as necessary to put the defense I noticed that to what the claims are. It is not facts based pleadings but it isn’t notice based pleading either. Adopting this kind of approach for accommodation requests in high stakes situations (colleges, universities, standardized testing, etc.), would seem to make a lot of sense.