A medical student with multiple sclerosis wanted no mention of accommodations with results. A panel said no.
By Joseph A. Slobodzian
INQUIRER STAFF WRITER
A federal appeals court said yesterday that flagging standardized test results to disclose that the test-taker got extra time or some other accommodation because of a disability does not violate federal disability law.
The unanimous ruling by a three-judge panel of the U.S. Court of Appeals for the Third Circuit came in an appeal by the National Board of Medical Examiners, which had been barred by a lower court from flagging the medical-licensing scores of "John Doe," a Virginia medical student with the progressive nerve disorder multiple sclerosis.
The Third Circuit vacated an injunction and reversed U.S. Magistrate Judge M. Faith Angell, ruling that the Americans With Disabilities Act does not prohibit the board from identifying test scores as involving a disability accommodation.
While acknowledging that Doe had a "justifiable and reasonable concern as a disabled person with how people who can affect his future and his livelihood . . . will perceive him," the appeals court said Doe had not proved he had suffered discrimination - a necessity for the court to affirm the lower court's preliminary injunction.
"It may be that Doe will be able to develop a fuller record at final hearing," wrote Chief U.S. Circuit Judge Edward R. Becker. "On the current record, however, he has not shown a reasonable likelihood that he will prevail."
Even if Doe ultimately proved that hospital residency and internship programs discriminate against him because his test scores were flagged, Becker added, "such discrimination would not necessarily be attributable to the [medical board]."
E. Elaine Gardner, a lawyer for the Washington Lawyers' Committee for Civil Rights and Urban Affairs, which represents Doe, a fourth-year medical student at the Medical College of Virginia in Richmond, declined comment.
She said Doe and his lawyers would review the opinion before deciding whether to appeal to the full Third Circuit or petition the U.S. Supreme Court.
Yesterday's ruling leaves Doe the immediate choice of delaying his medical career or continuing to apply to residency or internship programs knowing his special accommodations will be noted.
The Philadelphia-based National Board of Medical Examiners does not automatically report a test-taker's scores; a prospective resident or intern sends the scores to the program in which he or she is interested or directs the board to do so.
Gabriel L.I. Bevilacqua, the lawyer for the board, called the appeals decision a "significant victory for the very difficult process of testing our future physicians."
Bevilacqua said the board never balked at accommodating any disabled test-taker. But once an accommodation is granted, he added, the board feels there should be "truthful, full information-sharing amongst the decision-makers."
Experts who testified before Judge Angell said there was no way to prove how disability accommodations affect test scores. The board does not identify the disability but does say the test was not taken under usual conditions.
Doe received more time to take the test and was assigned a seat with easy access to a bathroom.
According to court documents, Doe ranked in the top fifth of his medical school class. He has a 1988 undergraduate degree from Harvard and a law degree from the University of Pennsylvania Law School, and he worked as a lawyer for five years before deciding to go to medical school for a career in physical and rehabilitation medicine.
Doe, whose multiple sclerosis causes occasional muscular spasms and periodic incontinence, had applied to about 20 programs nationwide and maintains that no one knows about his illness based on external symptoms.