'Accommodations' for the Learning Disabled: A Level Playing Field or Affirmative Action for Elites?
Craig S. Lerner
George Mason University - Antonin Scalia Law School, Faculty
Vanderbilt Law Review, Vol. 57, No. 3, pp. 1043-1124, 2004
George Mason Law & Economics Research Paper No. 04-42
A growing number of students in American higher education are being diagnosed as learning disabled and then using that diagnosis to secure beneficial accommodations, such as extra time on exams. These accommodations are often said to be mandated by the Americans with Disabilities Act (ADA). This Article challenges the premise that the ADA necessarily requires educational institutions to provide learning-disabled students with any accommodations. The ADA defines disability as an impairment that substantially limits a major life activity. Whether one is substantially limited is determined with reference not to one's innate abilities, but to the skills of the average American citizen. Thus, a learning-disabled college or law student who fails to live up to his potential, and who reads slower than one would predict given his general mental aptitude, is not disabled as a matter of law, provided he reads at a level comparable to the average American.
Legal requirements aside, it may be appropriate to accommodate learning-disabled students, but it is increasingly difficult to distinguish the truly disabled from those simply claiming a disability to gain an advantage. The traditional touchstone of a medical diagnosis as learning disabled, which diverges importantly from the legal definition, is a substantial discrepancy between a person's mental aptitude and academic achievement. Whatever scientific rigor such a diagnosis may once have had, it is now hopelessly indeterminate. Moreover, there is evidence that significant numbers of students, or at least those with the wherewithal and initiative to consult psychologists and lobby school administrators, can secure such an advantageous diagnosis. Drawing upon the concept of agency costs, this Article explores the tension between the interests of administrators of nonprofit educational entities and the interests of the entities themselves. Educational institutions are of course committed to ensuring fairness and academic integrity, but individual educators and administrators may not have sufficient personal incentives to scrutinize requests for accommodations or to tailor those accommodations narrowly to a student's claimed learning disability.
Number of Pages in PDF File: 83
Keywords: discrimination law, health law and policy, law and economics
JEL Classification: K00, K32
Date posted: September 28, 2004 ; Last revised: September 27, 2013