Future Reflections Spring/Summer 1994, Vol. 13 No. 2


by Scott LaBarre

[PICTURE] Scott LaBarre conducts a meeting of the National association of Blind Students

Editor's Note: Mr. Scott LaBarre is the former President of the National Association of Blind Students. Although no longer in school (he just completed a year of advocacy work at the National Center for the Blind and is now looking for employment in a private law firm), the issue of discrimination in standardized testing continues to be of grave concern to him, as it should be for all blind persons. 

At the birth of the National Federation of the Blind only a handful of blind persons had the opportunity to attend our nation's colleges and universities. Most of our society, blind and sighted alike, believed that pursuing advanced degrees in an integrated setting was beyond the capacity of the blind. Just as the existence of blind people on college campuses was rare, so was the plethora of entrance and certification examinations which exist today. As the number of persons going onto higher education has increased, our country has developed and invented new ways to distinguish between the millions of people who go to college, law school, graduate school, and other institutions each year. Consequently the development and administration of entrance examinations has blossomed into a major industry.

As blind persons emerge from second-class status to first-class citizenship we strengthen our demand to equal opportunity and a level playing field. Such is the current situation we face in the area of standardized testing. Although we have grappled with these issues for over twenty years, I believe that we now stand at a crucial turning point. Therefore, we must formulate our policy carefully and firmly respond to the challenges we face.

Before going any further in this article, it is helpful for us to understand the basic structure of standardized tests in our country. In this field there is essentially one major player. That major player is the Educational Testing Service (ETS) located in Princeton, New Jersey. ETS essentially sets all the standards in the administration and development of standardized tests in our country. It is true that there are independent organizations such as the ACT and the organization which administers the Law School Admissions Test (LSAT), but these organizations emulate the procedures and practices adopted by ETS. 

In 1990 Congress passed the Americans With Disabilities Act (ADA), and that Act brings squarely under its coverage the administration of examinations. Section 309 of the ADA mandates that all examinations must be accessible to individuals with disabilities and offered in a non-discriminatory manner. As a result of the passage of the ADA many disabled persons have now begun to challenge policies and procedures adopted by ETS and others. 

There are two main reasons why standardized testing has become such a hot issue. First of all, ETS and others have adopted a wealth of new policies as a direct response to the ADA. As usual, these new policies have often been developed with very little meaningful input from the individuals affected by them.

The second main reason stems from the fact that testing services try to lump all disabilities into one group. This kind of policy ignores the fact that different disabilities require different accommodations. For example, persons with learning disabilities often face a whole variety of barriers which we do not. For us the greatest barrier is turning the printed word into a medium that we can read for ourselves. This can easily be accomplished through the use of Braille, a competent reader, large print, or recorded text. Once we have our exam in an accessible format, the way we take the test is little different than the way sighted persons take the test.

The emergence of all these new procedures and policies has now created some serious discord in the disability community. A recent version of these procedures and policies adopted by ETS resulted in a lawsuit being filed in federal court.

Jaclyn Okin is a student in New York who has Cerebral Palsy. She had planned on taking the Scholastic Aptitude Test (SAT) during the spring of this year. ETS and the College Entrance Examination Board (hereafter referred to as the College Board) have designed a new version of the SAT which they now call the SAT I. This new version is radically different from the old SAT. For example, the SAT I has more sections than the old, and the new sections assess different areas of a student's verbal and mathematical abilities.

Another radical departure from the old SAT is that students are now permitted to use calculators on the mathematics portion of the exam. 

When Ms. Okin applied to take the SAT I, she requested reasonable accommodations. ETS informed Ms. Okin that if she wanted to sit for the new version of the SAT, she would have to take the exam on the nationally scheduled test date of March 23, even though there were several other national dates scheduled. If a disabled student wanted to take the exam on any other date, that student would be administered the old version of the SAT. ETS claimed that the old version is in fact very similar to the new SAT I and therefore non-prejudicial to those who took it. Such an assertion by ETS is ludicrous when one considers that the new SAT contains entirely different sections and tests different skills.

Ms. Okin felt that ETS's policy was discriminatory. As a result, she filed a lawsuit in the United States District Court for the District of Southern New York alleging that ETS's policy violated the ADA. Simultaneously many other disabled students filed complaints of discrimination under the ADA with the Civil Rights Division of the United States Department of Justice. The Department of Justice became very involved in this matter and negotiated a settlement agreement by the end of March. 

In the settlement agreement, the Department of Justice states its belief that ETS and the College Board violated the Americans with Disabilities Act. The agreement also mandates that ETS and the College Board offer the SAT I to any student with a disability on any regularly scheduled national testing date. With respect to the blind, the agreement states that the blind or visually impaired will be allowed to take the SAT I either in large print or with a reader. The agreement specifically relieves ETS and the College Board from offering the exam in Braille or on recorded text until the fall of this year. At that point, the exam must be offered in Braille or on recorded text if so requested by a blind or visually impaired student. 

As you can see, the settlement agreement is a mixed blessing for blind students. It is comforting to know that we can take the new version of the SAT whenever it is scheduled for all other students. However, we have to wait until this fall if we desire to take the exam in Braille or recorded text. 

An attorney at the Department of Justice informed me that ETS claimed that it could not produce the exam in Braille or on recorded text in a timely fashion for this spring's administrations of the exam. Sadly the Department of Justice believed ETS when it made this claim. With today's Braille translation software and hardware it is very easy to produce exams and other documents in Braille in a very short period of time. Additionally, it is not very difficult to read an exam on tape. There are several organizations which can either produce the exam in Braille or record it on tape very efficiently and quickly. In light of the foregoing reasons, it seems that the Department of Justice let ETS and the College Board off the hook far too easily.

Unfortunately the settlement agreement was struck so quickly that we had very little opportunity to influence it. If we would have been a party to the process, I am certain that we would have fought hard for the inclusion of Braille and recorded text in it. At least the Department of Justice had the wisdom to ensure that Braille and recorded texts of the exam shall be administered this fall. In the future, however, we must continue to be vigilant and work hard to ensure that Braille and recorded texts will be available to blind and visually impaired test takers.  

After we reviewed the settlement agreement, we realized that it raised many more questions than it settled. Attached to the agreement is a copy of a document called SAT Services for Students with Disabilities: Information for Counselors and Admission Officers. This document reveals ETS's current policy for students with disabilities. Many of its provisions are problematic. 

In the past, if a blind person wanted reasonable accommodations on an exam, the blind student could prove blindness through a doctor's letter. Once blindness was established, the blind student could choose whatever accommodation that seemed appropriate for the particular exam. 

Under current policy a blind student must prove that he or she has an individualized education program (IEP) on file with the school or provide documentation from two authorized professionals reflecting the blind student's need for special accommodations. The handbook states as follows: To be eligible for tests administered through SAT services for students with disabilities, students must currently be receiving the same accommodations for assessment in school that they will be receiving on the SAT program test. In addition, students must have on file at their school either a current IEP or two signed documents obtained from any of the following licensed or certified specialists appropriate for evaluating the disability: physicians, psychologists, child study teams, or learning disability specialists.

In other words, we not only have to prove that we are blind, but we must also prove that the accommodation we choose is appropriate to our individualized situation. Our own experience about which accommodations work best for us will no longer matter. A professional or professionals will have to document that certain accommodations are indeed appropriate for our situation. This policy has the potential of stripping blind students of flexibility and choice. 

One can imagine several scenarios where the requested accommodation and the existing IEP could be at odds. For example, a student's IEP may state that Braille is the primary reading format which a student uses, but on the exam, a student may request that certain diagrams be provided in large print so that the student can use residual vision to understand the diagrams visually. In such a scenario, ETS could argue that since the IEP makes no mention of large print for that student, it is under no obligation to provide any materials in large print.

It is also possible to imagine a situation where a student would not have an IEP. Some blind students have adjusted to their blindness and no longer receive special education services. In such a case, the blind student would be forced to have two documents signed by professionals stating that the student would be using a given accommodation or accommodations. It is often impossible for physicians and other professionals to state with clarity and accuracy the accommodations a given student may use. These professionals usually do not have the day-to-day contact with the student or a comprehensive knowledge of the alternative techniques of blindness, and such a lack of contact and knowledge renders the opinion of these professionals almost meaningless. ETS's policy ignores the fact that the expert on which accommodations are most appropriate in various situations is the student him- or herself. 

Whether a student provides a copy of the IEP or a document signed by a physician, psychologist, or child study team, the ETS policy strips the power of choice away from the student. (ETS also lists learning specialists among those who may certify a student's accommodation. Obviously, this is NOT appropriate for blind or visually impaired students. This is yet another example of how ETS lumps all disabilities together.)  The policy also fosters dependence on the part of the blind student. Under such a policy, the professionals-not the student-are responsible for determining which accommodations are most appropriate. By the time of high school or college, blind students should be responsible for making their own decisions about which methods and techniques work most effectively for them.

In 1990 I graduated from St. John's University, and in 1993 I graduated from the University of Minnesota Law School. Neither St. John's or the University of Minnesota required me to prove that using readers, recorded texts, and Braille were appropriate to my situation. Once these schools had proof of my blindness, all decisions relevant to which accommodations I would employ in given settings were left entirely up to me. The bottom line was that I complete the work. How I did so did not matter.

We have faced this same struggle in our dealings with college campus disabled student service offices. Some universities have required that we deal with disabled student service offices rather than directly communicating with our professors about which alternative techniques are appropriate for a particular class. In these situations, it is the disabled student service office which becomes the expert on our blindness. For example, we only get Brailled exams if the disabled student service office believes that we should get Brailled exams. 

ETS's policy with regard to eligibility for alternative accommodations is discriminatory and takes the power away from us-blind students. We must respond to this situation as rapidly and as firmly as we can. The Americans with Disabilities Act and current thought about disability promote independence and self-determination. ETS's eligibility policy strays far from this laudable goal.

The handbook for counselors and admissions officials also contains a section on Interpreting Scores from Non-standard Administrations. As some of you may know, ETS and other testing agencies consider an administration of a test as non-standard if a student takes the exam in any way different from a non-disabled student. By their definition, if you do not take the exam in print and under the same time constraints while sitting in a room with hundreds of other students, such an administration is non-standard.

ETS has always made the claim that if a student does not take an exam under standard conditions, then it is impossible to prove with mathematical certainty that the score derived from a test given under non-standard conditions means the same as one administered under standard conditions. Therefore, if a student happens to use a reader or to take the exam in Braille, ETS will send a letter with the test score stating that the exam was given under non-standard conditions and that ETS cannot predict the accuracy of the student's score in comparison with scores achieved under standard conditions. This practice has often been called flagging. 

With respect to blindness, the most controversial issue has been whether it is appropriate for blind students to take additional time to complete the exam. If additional time is appropriate, how much additional time should be granted? Over the last few years, ETS undertook a research project to answer these questions. According to ETS's research, more time is appropriate for blind and visually impaired students. ETS has also determined that time-and-a-half is the appropriate measure of extra time. In other words, if a sighted student has three hours to complete the exam, a blind student should receive up to four-and-a-half hours for that exam. One might legitimately argue that this conclusion is far too generalized and does not distinguish between accommodations used (Braille, large print, tape, and/or readers), and the student's skill level and experience with the selected accommodation or accommodations. Nevertheless, for the purposes of discussing the flagging practice, let us assume that the ETS research finding on extra time is accurate and appropriate.

Despite ETS's findings, they are still flagging our test scores. On the one hand, ETS claims that there are so many differences among students with various disabilities that they cannot accurately predict the meaning of scores from non-standard administrations. ETS further claims that the number of non-standard administrations is relatively low that accurate comparisons between disabled and non-disabled students' scores cannot be made.

On the other hand, ETS also claims that scores achieved under non-standard administrations are comparable to those achieved under standard administrations. Here are ETS's own words:
Nevertheless, with minor exceptions, the results of a four-year research effort of the College Board, the Educational Testing Service, and the Graduate Record Examination indicated that test scores were comparable measures of the cognitive ability of both test takers with disabilities and test takers without disabilities and that admission decisions were related to test scores and prior grades in much the same manner for applicants with disabilities and applicants without disabilities. (Emphasis added). The study further pointed out that test scores achieved by blind students were in fact comparable measures of ability and could be used to predict the performance of blind students in college.
I have never seen a better example of double-talk! Applying a baseball analogy to this situation, one could say that ETS is covering all the bases. ETS claims that it cannot predict the meaning of our scores as they relate to our ability in college, but ETS is also saying in the same paragraph that our scores are a comparable measure of cognitive ability. So which is it? 

If the scores we achieve are truly comparable, then ETS should not flag our test scores. Such a practice is blatantly discriminatory. Recently I took the Maryland Bar Exam, and I am happy to say that I passed it. I used a reader and wrote notes in Braille. In other words, I took the exam under non-standard conditions. My license to practice law, however, does not contain any statement which says that I achieved my license under non-standard conditions. My license to practice law means no more or no less than somebody else's license. I have just as much a right to enter the courts of Maryland and represent clients as anyone else who holds a license to practice law. 

We know from our experience that our test scores, our college degrees, and our licenses to pursue professions are just as valid as those achieved by the non-disabled. Therefore ETS's flagging policy is discriminatory, and I believe that we can make a very strong argument that it violates the Americans with Disabilities Act. The policy of flagging our scores leads some college or university admission officials to believe that our scores are not comparable. It goes without saying that such a practice is incredibly damaging to the blind. 

There is one final issue which must be discussed in relation to standardized testing and the blind. In the past, we have often faced great difficulties in our attempt to receive the accommodation most appropriate to our individual situation. Many of us use Braille. Others of us find the use of readers to be most appropriate. Others find recorded texts most effective, and yet others prefer to use large print. Of all the formats, Braille has been the hardest to receive. Testing agencies have often claimed that it would be an undue hardship for them to produce a given exam in Braille. Just this spring, we were witness to how easily the Department of Justice bought ETS's argument that it could not produce the SAT I in Braille for the spring administrations. The passage of the ADA has made it clear that examinations like the SAT must be accessible.

The passage of our Braille literacy bills has made it clear that Braille is the most important reading medium to the blind and should be widely available. Therefore, it is becoming increasingly difficult for ETS and others to argue that they cannot provide an exam in a medium which is most appropriate to our individual needs. 

There is no doubt that our concerns about standardized testing are receiving more attention than they ever have, but it is just as clear that we still have a long road left to travel before we achieve true equality in standardized testing. We must operate on all fronts to resolve these issues. One blind student or parent of a blind child fighting alone will not be able to secure a victory. It will take our collective effort through the National Federation of the Blind to get the job done. Given our history and our increasing strength, I have no doubt that we will succeed. 

Ultimately the standards which will apply to the blind in standardized testing will be established by all of us, all of us in the National Federation of the Blind.

Editor's Note: The National Organization of Parents of Blind Children and the National Association of Blind Students want to hear from blind and visually impaired high school students and their parents concerning standardized testing and other preparations for college. We want to hear about your experiences, your concerns, and your questions. We will also share information with you about selection of appropriate accommodations, rights and responsibilities of students in the testing process, and other matters related to preparation for college. Also, we will help you get in touch with your nearest local or state NFB group of students and/or parents.

The president of the National Organization of Parents of Blind Children is Barbara Cheadle of Baltimore, Maryland, and the president of the National Association of Blind Students is Olegario  Cantos of California. Parents and/or  students should write or call:

Mrs. Barbara Cheadle, President
National Organization of Parents of Blind Children
1800 Johnson Street
Baltimore, Maryland 21230
office (410) 659-9314 home (410) 747-3472

Calls and letters from teachers of the blind and visually impaired, rehabilitation counselors, and high school counselors will also be welcomed.