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This article originally appeared in The Bar Examiner print edition, Winter 2021-2022 (Vol. 90, No. 4), pp. 26–30.By Douglas R. Peterson
Good decision-making regarding testing accommodations requires an individualized evaluation of the applicant’s record, using due care and keeping fairness front of mind. This article focuses on the process that is followed in Minnesota when an applicant contests an accommodations decision and is based on my experiences as the hearing officer in contested hearings.
In Minnesota, the test accommodations decision begins with the applicant’s request for accommodations and the documentation submitted along with the application. This is often followed by a request from Board of Law Examiners staff that the applicant submit additional supporting documentation. Additional submissions must be received within a certain time period in order to have a decision before the upcoming exam. Following receipt of additional information, if any, a referral is typically made to an outside consultant with expertise in medicine, psychology, or another field implicated by the request. An initial determination is then made by staff based upon the written record.
Most jurisdictions have some form of review process providing an applicant the opportunity to be heard if a challenge to the original determination is made. Minnesota typically has around 750–800 examinees per year, accommodations requests average 50 per year, and fewer than five appeal the staff determination per examination session. For large jurisdictions (16 jurisdictions typically see more than 1,000 examinees per year, and a few of those significantly more than that), the Minnesota model might not be feasible. Nevertheless, consideration could be given to providing an in-person or other form of hearing in close cases. Each jurisdiction will know what suits it best.
The form of the review opportunity accorded applicants will necessarily vary by jurisdiction. Given the volume of requests and the limited resources in some jurisdictions, the review may only be a review of the written evaluations and other submissions of record. In Minnesota, an appeal is conducted by affording a hearing before the chair of the Board of Law Examiners or the chair’s designee, with the hearing via a telephone conference to accommodate witnesses.
The Importance of a Solid Accommodations Assessment Process
Like any complex judgment where the stakes are high, many factors are at play. The law calls for an assessment of whether a physical or mental impairment limits an applicant’s ability to demonstrate, under standard testing conditions, that the applicant possesses the knowledge, skills, and abilities tested on the examination. The applicant typically provides a medical, psychological, and/or other health care professional’s diagnosis and that professional’s accommodations recommendations. And importantly, applicants provide evidence of how their disability manifests itself in their lives.
Applications for testing accommodations can include complex (and often competing and/or incomplete) information needing careful assessment. Perhaps the need for accommodations was diagnosed in law school for the first time. Reported symptoms can leave a mixed picture when compared against grades and other measures of academic success achieved with and without past accommodations. The diagnosis might be well-founded but the corresponding accommodations not well-defined.
Medical and other care providers at times offer opinions without conducting all of the diagnostic tests commonly part of a comprehensive evaluation. Experts often differ, with perhaps a family physician resting on a long history of clinical care and a jurisdiction’s Board-selected psychologist or other professional questioning that diagnosis by challenging the interpretation of the available data based upon more specialized expertise in the disability accommodations field. Applicants and those close to them also offer facts in response to follow-up inquiries that might not have been considered by the professionals consulted previously.
When an accommodations request is denied or not fully granted, applicants are entitled to turn to the courts for an independent determination; due process calls for such relief. But applicants are well-served when bar examiners provide another avenue to review the initial accommodations determination before applicants turn to the judiciary. Setting aside the question of whether and when such an additional opportunity for relief is required as a matter of law, applicants and the public benefit from the additional care, especially given the policies calling for appropriate accommodations for persons with disabilities.
For those jurisdictions interested in examining their accommodations assessment process, the following list includes ways to help ensure that the opportunity for the applicant to be heard is meaningful and genuine. Always keep in mind that no matter how the hearing officer ultimately resolves the accommodations question, the applicant has come to the board with a disability diagnosis or a history of having been accommodated for a disability; they also may well have experienced a lifetime of struggles or faced many a misperception over their diagnosis, whether by teachers, family, or friends. Starting from that place of understanding is key.
The Opportunity to Be Heard When Accommodations Are Denied or Not Fully Granted by Staff
1. Scheduling
Require applicants to submit their accommodations requests, with all supporting documentation, well in advance of the examination date. In Minnesota, the materials in support of a request for accommodations must be submitted by the deadline for applying for admission, which is approximately 12–13 weeks before an examination date. Board staff need time to retain and receive a written opinion from an outside expert. That opinion might spur the applicant to submit supplementary material, which should be encouraged, but short deadlines for such additional submissions are essential. Once an initial determination is made by board staff, an applicant has 5 business days to contest that decision, with a hearing subsequently set within 10 business days of the request. The review or appeal hearing, if focused on the key crosscurrents, might also lead to an applicant requesting an opportunity to submit additional documentation, a hearing officer seeking more information, or a need for the hearing record to remain open for a limited discussion over any new evidence. In any event, only brief submission periods, tailored to a material point, should be permitted so as to close the record, and thereby allowing for a timely decision to issue.
2. Hearing Format
“The tone set at the start of the hearing will define how the hearing unfolds. The more respectful and sincere, the more likely the hearing will lead to a discussion focused on the key data and events.”
If at all possible, an on-the-record hearing or other formal meeting should be held to hear from witnesses and discuss the accommodations issues with the applicant. Applicants should be advised that not only do they have a right to counsel, but counsel is most welcome if an applicant wishes to exercise that right. In my experience, counsel are often helpful in honing in on the most material considerations and appreciating the value of good dialogue over how particular accommodations might fit the circumstances.
Recording the hearing is the better practice given the significance of the rights at stake. If done by a digital recording, there is always the concern that it chills conversation. My experience is to the contrary. A pre-hearing notice stating that the discussion will be on the record is needed to inform applicants in advance, while reassuring them that the hearing will be conducted in a manner that will be respectful to the matter at hand. The recording also affords applicants a record if the decision maker exhibits bias or a misunderstanding of the nature and history of the disability circumstances. Hearings in Minnesota typically last one to two hours, but some last longer.
3. Set a Welcoming Tone
The tone set at the start of the hearing will define how the hearing unfolds. The more respectful and sincere, the more likely the hearing will lead to a discussion focused on the key data and events. That focus on the key questions will likely generate reactions that allow the decision maker to find solid ground when facing conflicting information on paper.
Whenever the facts allow, the hearing officer should strive to affirm acceptance of the applicant’s diagnosis and express appreciation for and belief in their reported life experiences. That acknowledgment will allow the applicant to accept their need to take the next step to better explore the particular facts presented to assess the issue at hand: whether the circumstances and data around the disability diagnosis support accommodations on the bar examination, and if so, the types of accommodations needed.
4. Do Your Homework
Without a careful reading of the record, the decision the hearing officer is called upon to make will seem daunting. The initial decision is contested likely because the experts have come to opposite conclusions and the applicant is frustrated that the diagnosis that led to prior accommodations is being questioned. Map out the applicant’s prior standardized tests, the scores received, and the types of accommodations extended, if any. Examine school transcripts to compare grades on courses with and without test accommodations, and distinguish courses that used essay exams from those that used multiple-choice exams as appropriate. Learn about the diagnostic testing used in a neuropsychological evaluation, and what each test conveys about aptitude, academic achievement, and cognitive processing. Pay attention to the percentiles. Rely upon expert opinions for guidance on the key differences in perspective on the data, and then hone in on those areas to ask questions of the witnesses and review the applicant’s educational history. Rule out alternative explanations for reported behavior or symptoms.
5. Frame Your Thinking to Make the Best Use of the Limited Hearing Time
The hearing officer should advise the applicant and staff representative of their perspective early on. For example, explaining to the applicant why they are looking beyond a blanket law school decision to grant extra time on essay exams starting in the fourth semester of law school. Highlight the data that divides the experts. Speak to any seeming contradictions in the test results for working memory versus processing speed versus visual organization. Identify the sought-after accommodations that appear supported by the evidence and those still in question. This up-front transparency will allow the parties to focus their efforts. It also confirms that the decision maker is prepared and equipped to identify the key information and separate the material from the immaterial on the way to a ruling. This framing sets up a rich and genuine discussion, which is unfortunately not necessarily what those with disabilities have experienced in other contexts.
6. Invite Witnesses and Learn from Them
Opening the door to hearing from witnesses means the decision maker must plan ahead and manage time in the hearing by focusing the applicant and witnesses on the key questions. Be prepared to press any expert on the challenges from the opposing expert. Question any loose use of data if the particulars over processing speed, executive functioning, or short-term memory are pertinent to the types of accommodations sought. Listen to the reports from family and friends. They often reveal why a disability might not have been diagnosed early in life, or whether the issue is a need to be free of distractions versus a need for extra time. The hearing officer should not shy from asking hard questions, but should ask them respectfully and give the applicant time to follow up on any questions asked.
7. Respect the Applicant’s Experience
Be open-minded going into the hearing. While questions over why accommodations were sought long after the K-12 years are reasonable, remember that access to disability services or those knowledgeable about the symptoms of a disability can be limited by socioeconomic circumstances. Those with ADD can be overlooked absent the hyperactivity that flags a need for assistance for those with ADHD. Intellectual ability can sometimes mask developmental disabilities from early detection in school. Later-in-life trauma, such as a concussion from an accident or a stress disorder due to military service, can skew how an applicant has experienced associated cognitive deficits. Like any case, personal testimony can prove credible and convincing.
8. Extend the Benefit of the Doubt to the Applicant
In my experience, applicants mean well and speak truthfully. Recognize that it is sometimes difficult to judge whether intellectual competency and coping skills are covering up a disability that calls for accommodations or should serve as part of the proof that finds an applicant ineligible for accommodations. The hearing might develop additional perspectives on that information or lead to an adverse conclusion based upon other evidence in the record. If, after considering all of the relevant information, the hearing officer finds themselves on the razor’s edge of a tough choice, the spirit of disability law counsels for deference to the applicant. That consideration is not meant to disturb the ultimate burden of proof the hearing officer must apply; rather, it should be seen as encouragement to keep the applicant in mind while assessing credibility and determining the weight to be given to the various pieces of information presented.
9. Explore and Tailor the Accommodations
Applicants (and lawyers, for that matter) often dwell on the fact that there is a disability diagnosis and do not focus on the particulars of the type of accommodations at issue. A disability with a modest impact upon examination limitations might warrant a modest amount of extra time. In some cases, additional off-the-clock time might address the situation better than extra on-the-clock time. The witnesses provide an opportunity to assess which accommodations are most important. Inquire of a testifying expert as to whether one or more of the recommended accommodations will suffice. The disability might manifest itself differently in multiple-choice exam versus essay exam environments. Ask the applicant what they think after hearing the testimony. The back-and-forth can lead applicants to state that certain of their requests are critical and others are not needed if the critical request is granted.
10. Issue a Written Decision
If resources allow, a written decision laying out findings and conclusions, with a memorandum squarely addressing the key issues, is helpful for several reasons. It confirms that the evidence has been considered and weighed appropriately. It informs the applicant of the board’s reasoning. And with the public interest in mind, it builds a body of work that reflects the care taken by the board to honor its obligations to extend accommodations consistent with applicable federal and state law.
11. Do Not Delay Justice
Schedule hearings promptly once the pre-hearing record is complete. Issue a written decision as soon as practicable, without sacrificing the care crucial to an honorable process. In Minnesota, we promise a ruling within five business days of the close of the hearing record. The special reason for promptness in accommodation determinations is that applicants need to shape their preparation around the timing and format of the exam they will be taking. The applicant’s expectations might not match the accommodations granted, and the earlier the accommodations question is settled, the better for the applicant concerned about their prospects. Promptness is essential for those who implement exam accommodations as well.
Hopefully these suggestions and recommendations are of benefit to jurisdictions as they carry out their responsibilities in assessing requests for accommodations. Just and fair resolutions to difficult matters rise to the surface if care and diligence is employed. Put another way, due process works.
Douglas R. Peterson is the general counsel of the University of Minnesota. Peterson served as a member of the Minnesota Board of Law Examiners from 2010 to 2020, and as its president for the last six of those years.
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