REDEFINING THE STATUS QUO TO INCLUDE THE DISABLED: Reflections On The Martin Case And ETS' Old Policy Of "Flagging" Disabled Students' Exam Scores

By SHERRY F. COLB

Wednesday, Feb. 14, 2001

On January 17, the Supreme Court heard argument in the case of Casey Martin — who has sued the Professional Golfers Association (PGA) under the Americans with Disabilities Act, seeking a court order enabling him to ride a motorized cart on the golf course between holes. Martin suffers from a degenerative circulatory disorder in his right leg that makes walking long distances difficult, painful, and dangerous to his health. Nevertheless, the PGA has taken the position that all golfers in competition — including Martin — must walk the course.

[diabled]

Those who side with the PGA claim that walking the golf course is an essential component of playing the game; as a result, they would effectively bar Martin from competing. Those who side with Martin, in contrast, believe that walking is not essential to the game; after all, it is not a marathon, but rather an attempt to get a ball into a hole using the fewest strokes possible. The game, of course, was not designed with the disabled in mind.

The PGA's argument in the Martin case illustrates a broader phenomenon. Customs and institutions develop in a manner that unfairly excludes the disabled. Society then later invokes the unfair structure as a justification for continuing that very exclusion.

The Disabled Test-Taker: Unfairly Advantaged, or Unfairly Handicapped?

The Education Testing Service (ETS) recently announced that it would no longer flag test scores of disabled applicants who take some of their exams (the GRE for graduate school and the GMAT for business school, for example) with special accommodations.

A lawsuit prompted the change in policy. It was brought by a man with no arms who was given a tracking ball, a computer, and extra time to complete his examination. His test score was specially flagged to indicate that he had received a disability accommodation, and the business schools to which he applied rejected him.

Many view the change in testing policy as an important victory for disabled persons. But others argue that flagging the test scores is the least that ETS can do to alert schools to a candidate's failure to complete the examination under "normal" conditions, that is, without access to "special" tools or extra time. They contend that it is unfair to equate the numerically equal scores of a "normal" candidate who took the test under "normal" conditions, and a "disabled" candidate who took the test under "special" conditions. (Indeed, many opponents view the requirement of accommodation for people with disabilities as itself an unfair imposition on schools, on employers, and on competing applicants alike.)

There is a serious problem with this argument, though: It is unfair to say that the testing conditions needed by non-disabled applicants are "normal" and the testing conditions needed by disabled applicants are "special." The GMAT is designed for people with arms, for example, but one need not have arms — only savvy and skill — to succeed in business. The applicant's use of special tools during the exam should therefore be irrelevant to the schools considering his application.

More Examples of Unfair Design

If a disability is truly job-related, then it can justify differential treatment. (Consider a blind bus-driver, or a food critic with no sense of smell). But many disabilities that are thought to be job-related, in fact are not. (Think of a wheelchair-bound lawyer, or a blind pianist).

Although there are true hard cases, it is important that when we ask, "what are the essential components of a particular job?," we not assume that the status quo is a "neutral" state of affairs. When we build a house or an office building that is not wheelchair-accessible, for example, we make an architectural decision that has the effect of discriminating against people in wheelchairs. Similarly, when we build too few bathroom stalls to accommodate women's needs, we discriminate against women, who constantly stand in long lines in restaurants and theaters while men virtually never do.

Consider another example. As Camryn Manheim — the Emmy-Award winning actress on "The Practice" — describes in her book Wake Up, I'm Fat!, our society is oriented around thin people. As a consequence, overweight people are often effectively shut out of places of public accommodation such as clothing stores and movie-houses; even small subway seats, sized for "average" individuals, are designed as if overweight people did not exist.

A Personal Story: The Disabled at the New York Bar Exam

I had a very small taste of the depth of prejudice against the disabled when I was preparing to take the Summer 1991 New York State Bar Examination. About two weeks before the test, I learned that food and drink would not be allowed into the exam room. Since childhood, I have suffered from a relatively mild form of hypoglycemia, a tendency for one's blood sugar to drop if too many hours pass without the ingestion of carbohydrates. As a result, whenever I have taken examinations that last more than an hour, I have brought with me a small bottle or two of apple juice, to avoid developing a headache and becoming very drowsy and light-headed. My need to bring juice to exams had never posed a problem for me or for anyone else prior to the bar exam.

When I called the New York Bar to explain that I needed apple juice in the exam room, I was asked why I had not petitioned for an accommodation prior to the deadline; I explained that I had not known beforehand that I would need to petition at all. I was told I would then have to petition both for a waiver of the petition deadline and for an accommodation for my hypoglycemia. Luckily, my doctor was in town and agreed to write me a note immediately, and my husband, who had himself recently graduated from law school, composed a petition for a deadline extension for me — while I focused on last minute studying for the exam.

The New York Bar granted both petitions. When I arrived to take the test, I was assigned to sit in a special room reserved for people receiving accommodations. Some had syringes because they needed to self-inject insulin during the exam; others had high-intensity lamps because they were vision-impaired. I felt somewhat ridiculous sitting there with my apple juice. At some point, the proctors asked that "the special people" be seated — a label that bothered me.

The exam was scheduled to begin at 9 AM, but the proctors in the "special" room did not hand out the test papers until closer to 10. I worried briefly that we might not get the full time allotted to complete the test, but no one seemed to be keeping an eye on the clock. The next morning, on Day Two of the exam, it appeared we would again be starting late. I asked one of the proctors whether perhaps we could begin our exam at 9 AM on that day. With a puzzled expression on her face, she asked why. I replied that everyone else was taking the exam at 9 AM, and that I did not know of any reason for us to be delayed. She smiled and responded slowly: "If you think you can take the exam with the normal people, why don't you go ahead and try?"

I began to reply to this remarkable comment, but a woman sitting near me who was legally blind interrupted and took me aside. She observed that I must be newly disabled. I was embarrassed to tell her that I had actually been drinking apple juice for most of my life. She said it was not worth getting upset about the proctor's remarks and that she, the applicant, just felt lucky to be allowed to take the exam with her special lamp, since another state bar had refused to let her do so.

In someone's mind, the ability to see without the aid of a special bulb was apparently "essential" to practicing law. This is the same mindset that deems having arms a key qualification for a business school applicant, or the ability to walk from tee to fairway to green a key qualification for a professional golfer. Only someone who is "normally" sighted — and lives in a society designed around that "normal" ability — could possibly view "normal" sight as a sine qua non for being, not a fighter pilot, but simply a practicing lawyer.

Why Flagging Should Not Occur

Though I do not pretend to understand the obstacles faced by the disabled, this experience at the bar exam gave me a window on the daily discrimination and hostility they encounter. Someone had flagged our room of "special people" in such a way that the proctors felt free to treat us with disrespect. Such flagging only makes life more difficult and painful for those who must already contend with physical or mental impairments that others are lucky enough not to face. And in many contexts, it is entirely unnecessary.

There are sometimes legitimate debates to be had over whether a particular accommodation is truly appropriate. Some might argue that a person whose disability impairs his reasoning, for example, is not "otherwise qualified" to be an attorney. But when we determine that an accommodation is appropriate (for example, when ETS provided the man with no hands with extra time, a tracking ball, and a computer), the practice of flagging is invidious.

By placing a flag next to a test-taker's score, ETS invites people to disparage "the special people." Yet such people more than deserve our respect and our admiration. Abolishing test score flags is a move in the right direction.


Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark

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