The Fair Exam Methodology and Administration Petition

Statement of the Issues and Facts

 

On December 9^th 2012 I had emailed you indicating that I had been having difficulties over the preceding two weeks being granted bunched finals, I had indicated that I was no more able to handle excessive testing hours in a short time span than any other University Student (Thus the reason for bunched finals). In fact, I suggested that given the specific facets of my particular disability, even a regular exam length would be excessive, despite establishing this, given the urgent nature of the situation and my own lack of forewarning, I did not feel this second aspect to be one worthy of pursuing at that moment in time. On Friday December 14 at approximately 6:00PM I was approximately three and a half hours into an exam when the CSD computer I had been using froze, deleting my exam; the machine had not allowed me to previously save my exam. I was made to repeat the exam despite indicating on multiple occasions that this would violate my bunched finals accommodation in that I would be asked to take (substantially) more than 4 hours of examinations in a single day. More importantly I indicated that this would require me to take 3 examinations in a two days period for a total average well in excess of four hours per day. I had heavily emphasized that the subject matter of the next day’s (Saturday the 15^th December) exam was Calculus; given that the among the most statistically significant (In excess of two standard deviations from the mean) of my relevant impairments are issues with working processing speed, memory, coding, cancelation, Math Fluency and Anxiety particularly as it relates to time constraints, it was of the utmost importance that I could obtained sufficient sleep and time to restore my mental facilities, as would be the case for any other student. I had asked to have the next days exam rescheduled to Sunday to ensure that I remained below the Universities sanctioned 4 hours per say; I was told that neither Ethan nor yourself were there and as such they could not verify the fact, I responded indicating that the accommodation had already been approved and that it should be visible on the CSD’s ERP system; no action was taken. I was ultimately told that I could take the exam at the time or not take it at all; I feel I was deprived of meaningful choice in exercising my right to the accommodation.

 

Consequentially the next day I took the Calculus based exam and did not complete it due to excessive mental fatigue resulting from insufficient time to rest my mind between exams coupled with my already existing processing, math fluency, anxiety and other issues, this is to be expected and was consistent with the specific characteristics of my disability for which I had forewarned and was not at all a surprise.

 

Immediately thereafter I contacted my professor, I indicated that I had scored in excess or 100% on my first midterm and a high A (Not A-) grade in my second midterm; I urged him to consider counting only the questions I had answered, indicating that though a reduced sample size would be a consequence, as the material was not organized chapter by chapter, the tradeoff would only be between a smaller sample size which truly reflected my knowledge in contrast to a larger sample size, watered down with random answers (I noted on the test that ‘all answers as of this point are random as I have 5 minutes left’) than proceeded to answer “C” for each of the five answer multiple choice questions. As a star student, my professor responded eager to help, but concerned regarding his authority to do so. I have brought this matter to your attention seeking to determine whether you feel my answers better reflect my knowledge of Micro Economics than a random sample and if so, to have the matter authorized.

 

Applicable Standard for Review

 

In  1999 it was established that:

 

 ‘While a student has the burden of proof on identifying accommodations; burden then shifts to the university to demonstrate that the accommodation would fundamentally alter the measurement of the skills or knowledge the examination is intended to test or would result in an undue burden’

 

Wong v. Regents of the University of California, 192 F.3d 807, 16 NDLR ¶ 93 (9^th Cir. 1999) (Wong I)

 

This decision was echoed in Corey v. Western Connecticut State University and has been upheld in all relevant Connecticut decisions.

 

Title II of the ADA requires of the University of Connecticut in relevant part:

 

The examination is selected and administered so as to best ensure… the examination results accurately reflect the individual’s aptitude or achievement level or whatever other factor the examination purports to measure… (except where those skills are the factors that the examination purports to measure)

 

§ 36.309(b)(1)(i) Examinations and courses.

 

When considering requests for modifications, accommodations, or auxiliary aids or services, the entity gives considerable weight to documentation of past modifications, accommodations, or auxiliary aids or services received in similar testing situations…

 

§ 36.309(b)(1)(v) Examinations and courses.

 

 

Section 3 goes on to require that entities wishing not to provide an accommodation must demonstrate that offering a particular accommodation would:

 

…fundamentally alter the measurement of the skills or knowledge the examination is intended to test or would result in an undue burden…

 

§ 36.309(b)(1)(v) Examinations and courses.

 

 

Application of facts to the Standard of Review

 

The ADA establishes a prima facie case in my favor given that I have provided statistical evidence on 48 Criterion across 8 Comprehensive tests performed by Dr. Michelle E. Bacon, a professor at Weill Cornell Medical School with a PhD. from Harvard. Given New York Presbyterians phenomenal and exhaustive assessment, statistics are available from which to draw inferences for highly specific accommodation; in this case, the question is not a particularly difficult one; in fact the mere existence of documentation which has been presented in advance suffices to meet the statutory obligation that “examination results accurately reflect the individual’s aptitude or achievement level or whatever other factor the examination purports to measure”; the only question remaining is a methodological one, it can best be phrased as “Are random samples a better measure of a variable than, than measuring the variable it’s self ”; need I say any more?

 

Yes- Examinations use a EPSEM (Equal Probability of Selection Method) sample, these are defined as “one in which every individual, or object, in the population of interest has an equal opportunity of being selected for the sample. Simple random samples are self-weighting.” The objective of multiple choice exams is to obtain a sample. In statistics and survey methodology, sampling is concerned with the selection of a subset of individuals from within a statistical population to estimate characteristics of the whole population. Res ipsa loquitur, the thing speaks for its self, by definition, the random sample did not accurately reflect my aptitude or achievement level in the factor the examination purports to measure. It should be noted that the exam is intended to measure my knowledge of Micro Economics, not the behavior of random samples nor my intelligence with respect to Math Fluency and certainly not my Processing Speed or the extent to which my working memory has been exhausted.

 

On 10/07/10, I had been in discussions with Manju Banshree who had told me that in a instance like this where I was unable to complete the exam I could be allowed to take the exam again. Despite this, I feel that removing unanswered questions at the expense of a larger vastly less accurate sample size is far simpler solution which absolutely removes the ability of anyone to complain that the matter is unfair given that I would not be taking the test again or given any additional time to study and the results would merely refine the ability of the test to measure the knowledge I demonstrated at the time. This is consistent with the law which requires “the entity gives considerable weight to documentation of past modifications, accommodations, or auxiliary aids or services received in similar testing situations”

 

Discussion

 

Given that the Prima Facie case is established, there is no reason this matter should not be resolved, the professor is not opposed to this action (which I have already proposed to him), but rather unsure of his rights and obligations, I have consistently scored A’s through this course and though I have not yet looked at my transcript (and it may well still be an A; but I’m too scared to look) I feel there is every reason to take this action and every reason against not taking this action, given that all I have requested is a reasonable methodological adjustment.

 

In my recent experience with ODE, I successfully defeated a Columbia Law School Lawyer, countering his 14 page memorandum with a 28 page appellate brief, I am yet to hear any counter statement from the ODE indicating a response and should be moving to file motion for summary judgment with the OCR who pay for all legal expenses in the coming weeks. This report has been formatted as a miniature OCR style brief, it fully reflects the law and its intended application, as an Advocate of Students with Disabilities I am never opposed to taking the opportunity to advance disability rights, something I am very passionate about, I urge you to do the same.

 

 

Best,

Connor Lyman