Does the law insure that all students have the right to valid assessment? The student in mind has a high IQ and achieves at an above average in high school. However, he has a Nonverbal learning disability and a specific reading disability. The school has said that he no longer qualifies for accommodations (extra testing time, having standardized tests read to him) under a 504 Plan because his achievement is not less than his average peers, and test taking is not considered to be a life activity. His standardized test scores are significantly higher with accommodations. Why is this student not entitled under the law to accommodations that will yield valid testing results?
Your question addresses the legal right to accommodation on testing for persons who due to a diagnosed disability perform below their potential, but still in the average range. As a result of a US Supreme Court decision in the Toyota Auto case, and a number of lower court decisions, the prevailing interpretation of Section 504 and the Americans with Disabilities Act is that a person must be impaired in a major life activity when compared not only to their own potential, or when compared to the group against whom they are being evaluated or competing against, but in relation to the average person in the population as a whole.
Based on this interpretation, it is not enough to demonstrate that an individual is functioning below their potential. In order to qualify as a person with a disability entitled to the protections of Section 504 or the ADA, including test accommodations, the individual would need to demonstrate that their disabilities cause them to function in the relevant area below that of the average person.
In some instances, more detailed testing and/or documentation of functional impairment may support the existence of a disability which causes the person to be impaired in comparison to the average person. In addition, a limited number of courts and other interpretations have identified circumstances where the person’s impairment should be assessed in comparison to the group against whom they are competing, rather than the general population. However, these cases are exceptions, rather than the rule.
Short of Congressional action to correct the prevailing judicial interpretations relying on the “average person” standard, the individual will likely qualify for accommodations only if, based on existing or additional testing and documentation, they can demonstrate some area of impairment that interferes with the specific skill at issue in which the impairment is measured to result in functioning below that of the typical person.