	Introduction

Tests and examinations can pose unique challenges to individuals with disabilities and, if accommodations are not made, prevent these individuals from advancing professionally or academically. To ameliorate these challenges, the Americans with Disabilities Act (ADA) prohibits the administration of tests in a manner that discriminates against people with disabilities. Concerned that this construction diminished the reach of the ADA's protections, Congress enacted the ADA Amendments Act (ADAAA), P.L. 110-325 , in 2008. This shift is expected to improve the likelihood that individuals with learning disabilities, attention deficit disorders, and other health impairments are entitled to testing accommodations under the ADA. The Department of Justice (DOJ), which is charged with implementing Section 309, has promulgated regulations stating that private testing entities must provide individuals with disabilities with accommodations that "best ensure" that the test accurately assesses the individual's aptitude "or whatever other factor the examination purports to measure." This report discusses the recent federal court cases determining who is entitled to testing accommodations under the ADA and whether a particular testing accommodation is ADA-compliant. It emphasizes areas where the ADAAA has affected the analysis or outcome in a case. Although the ADA does not require defendants to provide accommodations when doing so would impose an undue hardship, this report does not discuss the "undue burden" defense. It also does not discuss testing accommodations required under the Individuals with Disabilities Education Act (IDEA). Who Is Entitled to Testing Accommodations? An individual falls within the scope of the ADA's protection if he has a "disability" for the purposes of the ADA. Post-ADAAA Judicial Decisions

Concerned that narrow judicial interpretations of the term "disability" prevented individuals with disabilities from receiving necessary accommodations under the ADA, Congress enacted the ADAAA in 2008. The primary purpose of the ADAAA was to ensure that the courts and executive agencies defined "disability" more expansively so that the ADA provided a "broad scope of protection." Despite its infancy, the ADAAA is expected to shift the analysis in an ADA case from whether the plaintiff is entitled to the ADA's protection to whether the defendant has complied with the ADA. Many commentators also predict that people with learning disabilities, attention deficit disorders, other health impairments, and cognitive disorders are more likely to qualify for testing accommodations because of the ADAAA. In the past, courts interpreted the term "disability" narrowly, often creating legal obstacles to test-takers with cognitive disorders who sought testing accommodations under Section 309 of the ADA. Factors that may be relevant to this analysis include their capacity to help the plaintiff overcome the limitations created by her disability, their utility given the requirements and rigorousness of the particular exam at issue, and current technology. In addition to questions about who is entitled to testing accommodations under the ADAAA and what testing accommodations must be provided, at least one pending federal court case raises the question: what role must an entity play in mandating or administering an examination in order for it to have "offered" the exam for the purposes of Section 309 of the ADA?
Tests and examinations are widely used to decide whether a person is qualified to take up a particular occupation, advance professionally, or attend a certain educational institution. These tests can pose unique challenges to individuals with disabilities. Under the Americans with Disabilities Act (ADA), an entity that offers an exam without providing accommodations to examinees with disabilities may be liable for disability-based discrimination.
The ADA applies to both public and private educational and employment-related testing, and Section 309 of the ADA requires persons offering certain examinations to do so "in a place and manner accessible to persons with disabilities." The Department of Justice (DOJ) is responsible for implementing this provision, and a series of federal court decisions have held that the DOJ's current interpretation of Section 309 is entitled to judicial deference. Under the DOJ regulations, private testing entities must provide individuals with disabilities with accommodations that "best ensure" that the test accurately assesses the individual's aptitude "or whatever other factor the examination purports to measure." Factors that may be relevant to this analysis include the accommodations' capacity to help the plaintiff overcome the limitations created by her disability, their utility given the requirements and rigorousness of the particular exam at issue, and current technology.
However, not every test-taker with a disability is entitled to accommodations under the ADA. The ADA's protections only apply to test-takers who establish that their impairments fall within the ADA's definition of a "disability." In the past, courts had narrowly interpreted the term "disability." In the field of educational and professional testing, this often meant that people with learning disabilities, attention deficit disorders, other health impairments, and cognitive disorders could not establish that they had a "disability" for the purposes of the ADA if they had developed methods of coping with their impairments.
Concerned that narrow judicial interpretations of the term "disability" prevented individuals with disabilities from receiving necessary accommodations under the ADA, Congress enacted the ADA Amendments Act (ADAAA), P.L. 110-325, in 2008. The primary purpose of the ADAAA was to ensure that the courts and executive agencies adopted a more expansive interpretation of "disability." The ADAAA is widely viewed as shifting the focus in an ADA case from whether the plaintiff is entitled to the ADA's protection to whether the defendant has complied with the ADA. For example, the ADAAA prevents courts from taking into account a test-taker's coping mechanisms when determining whether that test-taker is entitled to the ADA's protections. Accordingly, people with learning disabilities, attention deficit disorders, other health impairments, and cognitive disorders are more likely now to qualify for testing accommodations.
This report discusses recent federal court cases determining who is entitled to testing accommodations under the ADA and whether a particular testing accommodation is ADA-compliant. It emphasizes areas where the ADAAA has affected the analysis or outcome in a case. It also identifies new legal questions being raised in federal court about standardized tests and individuals with disabilities. Although the ADA does not require defendants to provide accommodations when doing so would impose an undue hardship, this report does not discuss the "undue burden" defense at length. It also does not discuss testing accommodations required under the Individuals with Disabilities Education Act (IDEA).