On Timed Exams

Every year I teach Disability Law, I spend at least one class on exam accommodations.  We talk about accommodations for people with physical disabilities, vision disabilities, and, of course, learning disabilities and ADHD.  It won't surprise anyone that the accommodation that generates the most discussion is the provision of extra time to take an exam.  In fact, my casual empirical conclusion is that testing accommodation is the area of disability law that draws the most interest from both students and faculty at law schools across the country.  Basically whenever I give a talk at a law school, some faculty member engages me in a discussion of whether it's appropriate that some students with some disabilities get extra time on their exams.

Still, I must say that I was a bit unprepared for just how much discussion the topic provoked in my Disability Law seminar this past semester -- and how upset so many of the students in my class seemed to be about the number of students (whom they believed to be) getting extra time accommodations.  It wouldn't surprise me that the current economy and job market anxieties are making students more concerned about anything that might give their colleagues an unfair advantage (and at the same time making students more inclined to seek an advantage by obtaining extra time themselves).  Also, the passage of the ADA Amendments Act of 2008, which overturned a series of Supreme Court decisions that narrowed the definition of disability, means that more ADA challenges to the failure to provide testing accommodations are likely to be successful than in the past.  But, in any event, the discussion of the issue, and the level of skepticism of testing accommodations, was more fierce this past semester than at any time I can remember in the dozen or so years I've been teaching Disability Law.

Many of the people I talk to about this issue (including a lot of faculty and a number of my students this past semester), see two basic, mutually reinforcing, problems with extra-time accommodations on tests.  First, many students and faculty believe that everyone would benefit from extra time on their exams, so that even for people who legitimately are diagnosed with learning disabilities the accommodation gives them an unfair advantage.  Second, many students and faculty believe that the criteria for a learning disability or ADHD diagnosis are fuzzy and that students of greater financial means are more likely to be able to find a clinician who will make such a diagnosis -- so that people who don't really "deserve" extra time will get it, and that the extra time accommodations will, if anything, reinforce existing inequities.  This leads lots of folks to conclude that we shouldn't give extra time on law school tests, at least for people with learning disabilities and/or ADHD.  

I sympathize with some of these critiques.  But I think the problem isn't with the testing accommodations so much as it is with the tests themselves.  More below.

First of all, I think it's clear that on most law school exams, everyone would benefit from extra time.  There is a dispute in the testing literature regarding whether people with learning disabilities will benefit more than others from extra time.  But my sense from talking to many students and faculty members in a number of law schools is that basically everyone feels time pressure on most law school tests.  What that means is that our exams don't just test for understanding or mastery of the substantive material; they also test for speedy processing -- the ability to formulate and provide a response quickly.  So, as Mark Kelman and Gillian Lester argue, on most law school exams giving a student with a learning disability extra time isn't like giving a blind student the exam in Braille (nor, to adapt the facts of a recent case, with accessibity software like JAWS and ZoomText).  There is a real sense in which extra time makes the exam "easier," not just "different."  Especially if learning disability or ADHD diagnosis is fuzzy, and/or easier for wealthier students to obtain, this means we really should be concerned about extra-time accommodations on law school exams.

Now, a lot of people stop there and say that the solution to this problem is to stop giving extra-time accommodations, or to give them a lot less frequently.  But the key question, it seems to me, is why we give such time-pressured exams in law school to begin with.  There is no doubt that speedy processing is one important skill for a lawyer.  Most lawyers will have to think quickly "on their feet" in a variety of settings: court proceedings, negotiations, client presentations, etc.  Sometimes litigators have to write emergency motions.  And lots of lawyers have to bill a large number of hours and be sufficiently productive during that time to justify a high hourly rate.  

But my sense, from having practiced law and seen a lot of law school exams, is that our exams vastly overvalue the skill of thinking quickly on your feet relative to the importance of that skill in practice.  For many issues in most practice settings, time is, within reason, on your side.  Most briefs don't have to be written in a couple of hours, most research and discovery projects don't require the sort of speedy processing that our exams tend to test for, and virtually nothing in legal practice much resembles the act of writing a memo in an hour and a half identifying issues in a complex fact pattern.  The skills of thinking through different and conflicting lines of precedent and developing legal theories and litigation strategies are often quite important in legal practice, but the ability to do those things in a three-hour period is far less so.  Yet on our exams we highly value the ability to think through these issues quickly -- even though in most practice settings you would never rely on a synthesis of precedents or legal strategy developed in only three hours, and the people who can come up with the best synthesis of precedents or legal strategy in a three-hour period are not necessarily the same people as those who would come up with the best answers over a few days of thinking about the problem.  (Obviously there are differences across subjects here.  I would think that an evidence class should value speed more than a jurisprudence class, to take an extreme comparison.)

If, as I think is often true, our examinations overvalue processing speed in relation to the importance of that skill in legal practice, I believe that the solution is to give all students more time.  For this reason, I give take-home exams wherever possible.  Particularly with 48-hour take-home exams, I believe that every student will have an ample amount of time to demonstrate his or her skills, and no student will need extra time.  This avoids overvaluing speedy processing and avoids any potential unfairness of giving some students, but not others, extra time.

Yet I often find that colleagues are resistant to giving exams of this length.  In part, this reaction reflects a legitimate concern with the increased potential for cheating.  In part, it reflects a compassionate if paternalistic concern for the students who will work constantly on the exam for 48 straight hours.  But I fear it also reflects at least in part an unexamined assumption that the way we have always done things must necessarily be the best way.  I wonder what folks who read this blog think, and whether they have any better ideas than I have come up with.

I've blogged a fair amount on these issues over at my Disability Law Blog, if anyone's interested.