Framing a Ceiling as a Floor: the Changing Definition of Learning Disabilities and the Conflicting Trends in Legislation Affecting Learning Disabled Students

• Publication year: 2022

40 Creighton L. Rev. 229. FRAMING A CEILING AS A FLOOR: THE CHANGING DEFINITION OF LEARNING DISABILITIES AND THE CONFLICTING TRENDS IN LEGISLATION AFFECTING LEARNING DISABLED STUDENTS

Creighton Law Review

Vol. 40

NICHOLAS L. TOWNSEND(fn*)

The debate over who should be considered disabled rages fervently in the context of learning disabilities. A learning disabled person is not easy to see like a man in a wheelchair who is unable to walk. Nor is there a simple means of measuring learning disabilities as a hearing test is used to identify deafness. Precisely this difficulty in acquiring reliable evidence makes defining the outer edge of the learning disabled category vexing. Some postmodern critics go so far as to suggest that the entire concept of learning disabilities is merely a subjective social construct that is inherently tied to underlying politics.(fn1) Medical professionals and lawmakers, however, have relied for years on the discrepancy between a student's ability and achievement to determine the presence of a learning disability.(fn2) Mental health clinicians also generally accept that even high-functioning individuals can suffer from learning disabilities.(fn3)

Individuals with high academic potential who have a learning disability present the hardest question as to how disability should be defined. Within the context of the Americans with Disabilities Act (ADA), this question arises most often in cases involving requests for accommodations on professional licensing exams.(fn4) Recent United States Supreme Court cases have narrowed the definition of disability under the ADA in an attempt to preserve the Act's potency.(fn5) This impulse to narrow the definition of disability stems from the concern that if everyone who differs from average in some way is considered disabled, the ADA will become watered down and consequently will be unable to adequately help those it was originally meant to help.

This trend toward narrowing the definition of disability and thus drawing a more distinct line between the disabled and society at large is in conflict with recent legislation that tries to fold disabled students into the mainstream. For example, the No Child Left Behind Act(fn6) takes a one-size-fits-all approach to education, treating disabled students like everyone else instead of focusing on their individualized needs. Under No Child Left Behind, the majority of disabled students are measured alongside their classmates on the exact same standardized test, and schools are held accountable for the standardized test scores of disabled children.(fn7) The goal behind holding these disabled students to the same standards as all other children is an admirable one. The No Child Left Behind Act endeavors to make sure that teachers have incentives to teach the disabled students effectively and bring them up to grade level.(fn8) The fear is that if schools are not held accountable for the test scores of students with disabilities, disabled students will be left behind, while their teachers focus instead on pupils whose test scores may determine whether the school is sanctioned or even closed.

The commonly accepted practice of comparing a student's potential ability as demonstrated through an IQ test to the student's achievement on reading and other diagnostic tests is not the only way to measure learning disabilities. Companion legislation, which arose out of the No Child Left Behind philosophy, will allow states to abandon this traditional method. The Individuals with Disabilities Education Improvement Act (IDEIA) and the accompanying Department of Education guidelines provide room for states to change the way learning disabilities are identified.(fn9) The Bush administration's Notice of Proposed Rulemaking urges that the use of discrepancy between IQ subtests of ability and achievement be abandoned as a means of measuring learning disability.(fn10) The Department of Education's Proposed Rulemaking instead recommends assessment of the struggling student's response to high-quality general education instruction as a new standard or, alternatively, an absolute low level of achievement as a second option for identifying learning disabled students.(fn11)

These alternative standards are consistent with the philosophy of No Child Left Behind in that learning disabled students are measured against the same basic universal standards as other children. However, by eliminating the individual ability component of the old standard, the IDEIA transforms disability identification into a rule-like process and undermines the integrity of the learning disability classification. By changing the way learning disabilities are identified, the Department of Education may radically alter the entire definition of learning disability. The alternate standards proposed by the Department of Education as a means of measuring learning disability could bar students with high academic potential who also have a learning disability from ever obtaining the help they need. Imagine a bright child who manages to get by with mediocre grades despite a learning disability but with a little extra attention and some alternative teaching methods could rise to a much higher level of achievement. Under the proposed standard, that child would not qualify as learning disabled because the new rule compares him to the universal threshold of average grade level instead of the old individual ability standard. By changing the process for measuring learning disabilities, this regulation could write gifted students with learning disabilities out of special education law and deny those children accommodations that are essential to realizing their full potential.

The ADA licensing exam cases and the No Child Left Behind legislation are in philosophical tension. Recent Supreme Court cases have narrowed the ADA's definition of disability for fear that a broad definition that recognizes too many people as disabled will undermine the Act's potency.(fn12) No Child Left Behind and its companion legislation, on the other hand, try to integrate children with disabilities into the mainstream of American education instead of drawing a sharp distinction between disabled and non-disabled. Both are policy choices born of good intentions. However, the average person standard, which arises to some extent in both contexts, dangerously shifts the essential meaning of learning disabilities. Measuring learning disability by comparison to the average person instead of an individual's potential is underinclusive, excluding those learning disabled students with high potential from receiving the accommodations they need to realize it. In effect, the average person standard becomes a restriction on their rights. These laws change the definition of learning disabilities in a way that threatens to bar a specific category of high-achieving learning disabled individuals from realizing their potential by placing a ceiling on their right to claim legal protection.

I. LEARNING DISABLED STUDENTS AND LICENSING EXAMS UNDER THE ADA: NARROWING THE DEFINITION OF DISABILITY

Accommodations on standardized tests and licensing exams for students with learning disabilities are generally covered under the ADA.(fn13) Recently, however, courts have adopted a narrower view of disability under the ADA.(fn14) These latest cases provide a stark example of how legal definitions of disability are in conflict with the more inclusive view employed by current mental health and educational practices.(fn15) Despite decisions that restrict the scope of the ADA, accommodations are routinely provided for students diagnosed with learning disabilities and Attention Deficit Hyperactivity Disorder (ADHD) at all levels of academic testing.(fn16) It is essential to identify the gaps in the existing law and square them with real-world implementation by educators and test administrators.

A. RECENT TRENDS IN ACCOMMODATIONS AND HIGH PRESSURE TESTING

1. More accommodations requested and more litigation

Between 1987 and 2000, the number of students receiving accommodations on the SATs quadrupled.(fn17) In 2002, the President's Commission on Excellence in Special Education reported a thirty-six percent increase in the number of students with specific learning disabilities identified for special education services, making learning disabilities one of the top three categories experiencing large increases over the past ten years.(fn18) Approximately ninety percent of accommodated test-takers had been diagnosed with learning disabilities.(fn19) Data indicates that approximately one in eleven college freshmen self-identifies as having a disability.(fn20)

Some scholars see this increase to two percent of all test-takers as an alarming "arms race" driven by non-rigorous diagnosis.(fn21) However, this increase may simply be the natural result of the special education mandates that were put in place in 1975, making it possible, by the late-1980s and 1990s, for more individuals with learning disabilities graduating from high school to participate in challenging academics as they grew old enough for college.(fn22) The passage of the ADA also drew wide media coverage and focused public attention on disability accommodations, causing more Americans to act on those rights.(fn23)

Regardless of the cause, since 1990 the number of people in the United States identified with learning disabilities has been...