Smith, W. Thomas PharmD, JD; Allen, William L. MDiv, JD
Recent amendments to the Americans with Disabilities Act (ADA), effective since January 1, 2009, will guide courts in determining whether people with impairments qualify for legal protection under the ADA. The substantive change in these amendments will likely affect how colleges of medicine make strategic decisions involving persons requesting special accommodations for learning disabilities under the act.1,2 Since the ADA was enacted in 1990, employers, educational institutions, and other public entities have grappled with adapting to its requirements. Medical schools have responded in a variety of ways. In some cases, medical schools have removed barriers that previously excluded persons with disabilities from professional medical education by providing various types of accommodations such as the use of additional time on exams, readers, and adaptive technology. In other cases, they have asserted either that accommodations for particular students with disabilities would unreasonably alter the educational programs or that students with disabilities would not be able to meet the requirements of medical practice, thereby rendering accommodations at the medical school level unreasonably impracticable. In this article, we will examine how the amendments to the ADA will affect the cases of persons with learning impairments who request special accommodations in medical education. We focus primarily on learning disabilities for two reasons. First, for educational institutions, such as medical schools, the “vast majority of accommodation requests have been based on learning disability and/or attention deficit and hyperactivity disorder diagnoses.”3 Second, articles in this journal have focused especially on the controversies surrounding learning disabilities in the context of medical education and professional certification.4–6
The ADA comprises two major aspects: (1) whether one has a disability that qualifies for protection, and (2) if one does have a protected disability, whether the accommodations requested by the person with a disability are reasonable or unreasonable. Even when a person has a disability that qualifies for protection, if the requested accommodation is determined to be unreasonable, the institution is not required to provide the accommodation. Responding to narrow interpretation of the original law, the ADA amendments directly address only the first aspect—namely, whether an impairment is a disability that qualifies for protection under the ADA. The amendments do not directly address the second issue: whether requested accommodations are reasonable or unreasonable. Thus, this article focuses primarily on the issue of what constitutes a protected disability rather than on the reasonableness of accommodations. To examine this issue, we first look to court decisions related to the ADA and consider the narrow interpretations of that law that led to Congress enacting the ADA amendments. We then review the amendments and discuss how they could have affected Wong v Regents of the University of California (2004). Finally, we examine the implications of the amendments for medical education and consider how they may affect a current case.
Court Decisions Have Narrowed the ADA Scope of Protection
The statutory language of the ADA affords antidiscrimination protection to persons who have a physical or mental impairment that substantially limits one or more major life activities. The courts, however, are left to interpret the definitions of “impairment,” “substantial limitations,” and “major life activities.” In lawsuits brought by persons claiming disability discrimination under the ADA, defendants have successfully argued that persons who have made such claims were not sufficiently impaired to qualify for protection, either because their impairment was not “substantially limiting” or because the impairment did not actually limit a “major life activity.” Federal courts have increasingly made it easier for defendants to succeed in such arguments by restrictive interpretations of the meaning of a qualifying disability under the ADA.
Since its enactment, courts have significantly limited the reach of the ADA by raising the bar for what is considered a substantial limitation of a major life activity. In Toyota Motor Manufacturing, Kentucky, Inc., v Williams (2002) (Toyota),7 the U.S. Supreme Court held that the terms “substantially” and “major” in the definition of disability under the ADA “need to be interpreted strictly to create a demanding standard for qualifying as disabled.” Moreover, the Supreme Court in Toyota held that to be substantially limited in performing a major life activity
an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives [emphasis added].7
We learn from the ADA amendments that this interpretation of “substantially limits” is much narrower than what Congress originally intended.1 As a result of Toyota and other such cases, lower courts have held that individuals with a “range of substantially limiting impairments” are not considered disabled under the law.2
Judicial narrowing of the range of persons protected under the ADA has made it difficult to succeed in a claim for protection. According to surveys conducted by the American Bar Association's Commission on Mental and Physical Disability Law from 1992 to 2006, employee plaintiffs suing their employers in federal court for disability discrimination have prevailed less than 5% of the time.8 Additionally, undergraduate, graduate, and professional students who were denied accommodations that they deemed reasonable to assist them in their courses of study, such as extra time to complete exams or the use of scribes, brought suit under the ADA and generally lost.3 In many of these cases, courts have ruled that these students did not have conditions that substantially limited a major life activity. More often than not, these students have been unsuccessful because the courts claim that “they could read at an ‘average’ level, were attending a professional school, and did not have a condition that ‘substantially’ limited a ‘major life activity.’”5
ADA Amendments Act
Congress responded to judicial restriction of the scope of ADA protection by passing the ADA Amendments Act of 2008 (ADAAA). In articulating the purpose of ADAAA, Congress explicitly repudiated these restrictions, stating,
... as a result of these Supreme Court cases, lower courts have incorrectly found in individual cases that people with a range of substantially limiting impairments are not people with disabilities.2
Congress also specifically rejected the U.S. Supreme Court's holding in Toyota, quoted above,
... that the terms ‘substantially’ and ‘major’ in the definition of disability under the ADA ‘need to be interpreted strictly to create a demanding standard for qualifying as disabled,’ and that to be substantially limited in performing a major life activity under the ADA ‘an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives.’2
In the ADA context, “substantially limits” means
significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner or duration under which the average person in the general population can perform that same major life activity.9
Major life activities include “caring for oneself, performing manual tasks, walking, seeing, speaking, breathing, learning, and working.”10 Under the ADAAA, “thinking” and “concentrating” are added to the list of major life activities.2
Wong v Regents of the University of California (2004)
We chose to analyze this particular case to highlight just how challenging it had become for students with relatively easy-to-accommodate cognitive impairments to win cases against universities that denied such accommodations. Diagnosed with a reading disability in elementary school, Andrew Wong was able to compensate by spending extraordinary amounts of time reading his assignments. He completed college and earned a graduate degree in biology. Without seeking accommodations on the MCAT exam, he scored well enough on his fourth attempt to be admitted to the University of California, Davis, School of Medicine. Wong completed his first two years of medical school and passed the required United States Medical Licensing Examination (USMLE) Step 1 at the end of his second year without requesting accommodations. While on clinical rotations during year three, however, he failed his first clerkship and withdrew from his second. After a leave of absence, the university's Disability Resource Center diagnosed Wong as having “a learning impairment that limited his ability to process and communicate information”11 and recommended that Wong receive extra time to prepare for his clerkships. With such accommodations, Wong succeeded in several clerkships and received favorable evaluations. When he requested a similar reading period for his pediatrics rotation, however, the request was denied by the clerkship director as “unreasonable, unfair, and contrary to the purpose of the curriculum.”11 Without the accommodations, Wong passed the written and oral exams for the pediatrics rotation; however, his ward performance was judged to be unsatisfactory, and he was dismissed from the medical school.
In 1999, Wong sued in federal district court, claiming that the university violated his rights under the ADA. The university sought to dismiss Wong's claim without a trial on the grounds that the accommodation he sought was unreasonable and that he was not “otherwise qualified” to continue because he could not perform the tasks he would need to perform as a physician.11 The district court agreed with the university, dismissing Wong's claim without a trial. The university neither challenged the legitimacy of Wong's disability nor argued that his disability should not qualify under ADA as a protected disability. The university only argued, after providing Wong accommodations on several clerkships, that suddenly these same accommodations were unreasonable on the pediatrics clerkship. Wong appealed to the United States Court of Appeals for the Ninth Circuit (Ninth Circuit). In 2004, the Ninth Circuit reversed the lower court's dismissal of Wong's case and ruled that Wong's claim merited a trial to determine whether his dismissal from school was prohibited discrimination under the ADA. The Ninth Circuit ruled that this question about the reasonableness of Wong's accommodation warranted a full presentation of the facts and cross-examination of experts and witnesses at trial.
Rather than testing the “unreasonableness” of Wong's requested accommodation at trial, the university again sought to have his claim dismissed without a trial. This time, the university used the U.S. Supreme Court's narrow definition of “substantially limiting” to argue that Wong did not have a protected disability under the ADA because he was able to learn and work “with greater facility than the average person.”11 By claiming that Wong was not qualified for protection, the university did not have to justify the claim that the accommodations he requested were unreasonable. In response to this argument, both the district court and (on Wong's appeal) the Ninth Circuit followed the U.S. Supreme Court's narrow definition of disability to dismiss Wong's claim without trial.
The Ninth Circuit acknowledged both that Wong suffered from a learning disability and that learning, reading, and working are all “major” life activities, but found, following Toyota, that to succeed in his claim, Wong's disability had to be one that would substantially limit most people, not simply what a particular individual (like a medical student) would find limiting in an activity in which most people would not be engaged (such as studying medicine). Thus, on the specific major life activity of reading, the Ninth Circuit found that Wong did not establish that he was unable to read “newspapers, government forms, street signs, or the like.”11 Moreover, the Ninth Circuit found that given the academic success he achieved in the past without special accommodations, he was just as able to learn as most people.
Analysis of Wong Under ADAAA
If the ADAAA had been in effect at the time the Ninth Circuit heard the case, the court would have been far more likely to find in favor of Wong, at least on the issue of whether his claim merited a trial at which he could introduce evidence of his disability, including expert testimony. First, the court stipulated that Wong suffered from a learning disability on the basis of the Disability Resource Center's findings that he possessed limited ability to process and communicate information. Second, the court agreed that learning, reading, and working are all “major” life activities. Third, and most important, it is necessary to establish that, if the ADAAA had been the law on point, Wong indeed offered sufficient evidence to demonstrate that his impairment “substantially” limited him in the specified major life activities.
Instead, the Ninth Circuit reasoned that, because Wong could read street signs and maps, etc., his reading disability was not severely restricted enough to qualify for ADA protection. But this is precisely the sort of demanding standard and extensive analysis that Congress explicitly rejected in the ADAAA. In cases like Wong, the ADAAA is likely to reduce the number of instances in which a medical student's claim of disability discrimination is dismissed without a trial on the grounds that the disability is insufficiently limiting. Plaintiffs will no longer have to prove that their conditions substantially limit their abilities to perform major life activities, and courts can no longer take into account the mitigating measures these individuals use to assist them in performing such activities. This change does not necessarily mean that such litigants will always prevail at trial. Procedurally, it does mean that claims of disability discrimination are more likely to be decided in a trial with conflicting evidence presented and weighed, experts cross-examined, and assertions on both sides thoroughly challenged. Substantively, it means that the arguments will shift from whether or not the plaintiff has a qualifying disability to whether the student's requested accommodations are reasonable. In Wong's case, we do not have access to the precise reasons why he was failed on the pediatrics ward rotation. The fact that the university had provided him reasonable accommodations for earlier clerkships and that he had passed those clerkships raises a legitimate question as to why these same accommodations were suddenly held to be unreasonable and whether his performance on the wards was affected by this denial of accommodation. The question of the reasonableness of these accommodations never had to be justified by the university because it was able to have Wong's claim dismissed on the grounds that he did not have a qualifying disability. This strategy is unlikely to be available to medical schools after the ADAAA.
The changes resulting from the ADAAA are likely to compel institutions to define more carefully what is essential to education for the professional practice of medicine in order to justify the denial of requests that go beyond the scope of reasonable accommodations. Hafferty and Gibson6 have argued that too many medical schools have taken the easy way of dealing with these issues by regarding such requests as being about passing tests rather than the more difficult process of determining what is required for professional practice. The ADAAA development is likely to push medical institutions toward the latter task by shifting the focus of legal analysis from procedural means of evading the hard questions to more substantive reflection on the ultimate relationship of medical education to the practice of the profession of medicine.
Implications for Medical Educators
Although the ADAAA will make it more difficult for medical schools to claim that an applicant's or a current student's impairment is not sufficiently limiting to qualify for protection, this does not mean that schools must simply accept at face value any individual's claim to have a qualifying disability. Medical schools should base their decisions on reliable diagnoses of disabilities, including learning disabilities, by appropriately credentialed and experienced professionals who are qualified to make such diagnoses. Moreover, medical schools would be wise to identify independent professionals for second opinions in cases for which the claim of a disability warrants additional scrutiny. Such consulting professionals should understand the competencies required for both classroom and clinical medical education; moreover, to minimize conflicts of interest, these individuals should not be employed by the medical school or the university. Under the ADAAA, we expect courts to look unfavorably on medical schools that summarily reject students' claims of disability, and favorably on those schools that carefully and extensively consider each student's claim and consult with outside experts when necessary.
Because the ADAAA will shift the analysis from whether a student has a qualifying disability to whether requested accommodations are reasonable, medical schools and educators would be well advised to carefully analyze in specific context whether students with disabilities can be given accommodations that do not compromise patient well-being, the educational mission of the institutions, or the essential functions of the profession and its social contract. It is beyond the scope of this article to provide a detailed blueprint for how this should be accomplished, but a few suggestions are warranted that are in keeping with Congress' clear intent to remove barriers that unnecessarily prevent persons with disabilities from full participation in educational and professional opportunities.
Medical schools all too often leave the issue of ADA compliance to admissions committees, who base their decisions on their universities' standards regarding the physical and mental abilities necessary for admission.6 In recent years, however, curriculum committees and course and clerkship directors have been tasked with defining educational programs in terms of competencies that all medical students must demonstrate to graduate and to be able to function as residents. Rather than leaving to the admissions committee the tasks of defining the skills necessary to achieve these competencies and determining various ways to enable students with disabilities to accomplish the same essential competencies, medical schools should involve the course directors and, especially, the clinical clerkship directors in reflective articulation of the essential competencies as well as imaginative means of achieving those competencies for students with disabilities.
One of the challenges to this approach is what Hafferty and Gibson6 recognized as the fragmentation of medical education into “essentially autonomous fiefdoms, each holding sway over different aspects of and/or stages of the training trajectory.” This may explain why Wong could have been provided accommodations deemed to be reasonable in several clerkships but suddenly deemed to be unreasonable in the pediatrics clerkship. Aside from the issue of whether Wong was failed in his ward performance as a result of being denied accommodations or simply performing inadequately for reasons unrelated to his learning disability, the inconsistency and apparent incoherence of accommodations allowed as reasonable in some clerkships, yet unreasonable in another, is problematic. It may well be that some competencies and reasonable accommodations could legitimately differ between clerkships as diverse as primary care and surgery. In rotations as comparable as family medicine and general internal medicine, however, accommodations reasonable for one should be reasonable for the other. Put another way, any dramatic differences between reasonable accommodations from one clerkship to another should be justifiable in terms of dramatically different competency requirements rather than the varying opinions of clerkship directors about whether students with disabilities belong in medical school in the first place. Collaborative reflection and consensus building across “fiefdoms” should result in greater consistency and may demonstrate across the curriculum the plausibility of allowing accommodations without unreasonably altering the educational mission of the institution.
The Effect of ADAAA on a Current Case
The ADAAA has already influenced a preliminary ruling made by one federal court, which supports our prediction based on our hypothetical analysis that Wong's case would have at least gone to trial under the ADAAA. In Jenkins v National Board of Medical Examiners (2009) (Jenkins),12 a third-year medical student with a reading disorder sought additional time on the USMLE Step 1, which was denied by the National Board of Medical Examiners (NBME). Prior to the ADAAA, Jenkins filed a disability claim under the ADA in federal district court, which applied the narrow definition of disability in Toyota and thus concluded that Jenkins' disability in reading under time pressure did not meet the Toyota criteria of “substantially limited” from performing “meaningful tasks central to most people's daily lives.” Jenkins appealed the district court's decision in the United States Court of Appeals for the Sixth Circuit (Sixth Circuit). In the meantime, the ADAAA came into legal effect and led the Sixth Circuit to overrule the district court's prior decision. The Sixth Circuit seemed to suggest that the district court would find that Jenkins would qualify as disabled under the ADAAA.12
It is important to remember that just because a medical student's disability qualifies for protection under the amended ADA, it does not necessarily mean that the student will receive the accommodations that were requested. According to the Sixth Circuit in Jenkins, the determination of accommodations is not dictated by the accommodations that the student has received in the past, nor should they be determined by the previous definition of disability exemplified in Toyota.12 Ultimately, it is the responsibility of the NBME, as a private entity providing licensure examinations, to comply with the federal mandate that it offer its examination “in a place and manner accessible to persons with disabilities, or be made accessible through alternative means.”13
Adding another layer of complexity to NBME's task of providing accommodations is the challenge of balancing “an individual student's need for accommodation against the need to maintain the integrity of higher education and licensing exams.”14 Title III of the ADA states that accommodations are not required if “they would fundamentally alter the measurement of the skills or knowledge that the examination is intended to test or would result in an undue burden.”13
The expansion of the term “major life activities” to include reading, concentrating, and thinking, coupled with Congress' repudiation of Toyota, undoubtedly will qualify more students as disabled under the ADA. Yet, it is too soon to tell whether or not this will cause an increase in students seeking accommodations for professional licensure examinations. There remains sufficient stigma associated with having a mental impairment such as a learning disability. Many individuals are not willing to self-identify as having such an impairment. The NBME and other national standardized examining groups have resisted providing accommodations such as extra time for persons with learning disabilities on the grounds that such accommodations undermine the comparability of scores and the reliability of the meaning of the results for institutions that rely on such scores for measuring individual achievement, competency, or aptitude.3 Of course, advocates of extra time for persons with learning disabilities contend that only with such accommodations are the results truly comparable; only then are persons with learning disabilities on a level playing field with those who do not have learning disabilities.
This argument is likely to continue to play out in cases like the Jenkins case as well as in the educational testing literature. It will be instructive to see how the Jenkins case and others like it proceed. Additional research on learning disabilities and the appropriate uses of standardized tests for advancement in high-stakes professions like medicine may help to resolve some of the contentiousness of this debate.
The authors wish to thank Amanda Beyer-Purvis for her assistance in formatting this paper, and Dr. Carole Kimberlin for her assistance in editing this article.
The opinions expressed in this article are those of the authors alone and do not reflect the views of the University of Florida.
2 S Amend 3406, 110th Cong, 2008 (amendment to 42 USC §12101 et seq.).
3 Petition of ACT Inc., Association of American Medical Colleges, Federation of State Medical Boards of the United States, Inc., Graduate Management Admission Council, Law School Admission Council, National Board of Medical Examiners, National Conference of Bar Examiners, and National Council of Examiners for Engineering and Surveying, July 14, 2008; Unclassified Subject Files; Health, Education, Labor and Pensions Committee; 110th Congress; Records of the United States Senate, Record Group 46; National Archives, Washington, DC.
7 Toyota Motor Manufacturing, Kentucky, Inc. v Williams, 534 US 184 (2002).
9 Fraser v Goodale, 342 F3d 1032, 1038 (9th Cir 2003).
10 Haynes v Williams, 364 US App DC 108 (2004).
11 Wong v Regents of the University of California, 379 F3d 1097 (9th Cir 2004).
12 Jenkins v National Board of Medical Examiners, US App LEXIS 2660 (2009).
13 28 CFR § 36.309 (2009) (Title III).
14 Hensel WF. Rights resurgence: The impact of the ADA Amendments Act on schools and universities. Ga State Univ Law Rev. 2009;25:641–697.