Jenkins v. National Board of Medical Examiners (2008)

By Darla Lee

Overview

Kirk Jenkins v. NBME (National Board of Medical Examiners) (2008) involves Kirk Jenkins, a third-year medical student at the University of Louisville. Jenkins had proven previously that he needed extra time to take a test. Jenkins, as a young man, was diagnosed with a reading disorder. During his educational career, he was awarded extra time for testing. Jenkins asked for fifty percent more time for part one of the USMLE (United States Medical Licensing Examination). Jenkins had received a reprieve before with the ACT (American College Testing) and MCAT (Medical College Admissions Test). Jenkins, knowing that he would need the extra time, sent a request to the NBME for extra time (as he had received for other exams) on the test. NBME denied his request numerous times. Jenkins, who had been awarded bonus time, filed suit against NBME on the grounds of discrimination by the ADA (Americans with Disabilities Act (1990). 

Summary

Jenkins was denied the request in the U.S. District Court of the Western District of Kentucky, allowing NBME to block the requested extra time for the USMLE for Jenkins. 

The reasons given:

"Applying the standard set forth in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), the court pressed Jenkins to demonstrate how his reading difficulties limited his ability to perform tasks central to most people's daily lives. Id. at 4-8. The court focused on such activities as reading menus and newspapers — all things which Jenkins can do capably, although slowly. Id. at 6-7. The court concluded that "[t]here is ample evidence that Jenkins processes written words slowly, and that his condition prevents him from succeeding where success is measured by one's ability to read under time pressure. But Jenkins' inability to identify meaningful tasks central to most people's daily lives that he is precluded from performing due to his condition must be fatal to his claim of disability under the ADA." " KIRK D. JENKINS, Plaintiff-Appellant, v. NATIONAL BOARD OF MEDICAL EXAMINERS, Defendant-Appellee., No. 08-5371., 2 (6th Cir., Feb 11, 2009).

Despite that, Jenkins had proven in his youth that he had been diagnosed with a reading disability. However, the court challenged the notion that Jenkins was able to drive and achieve entry into medical school. The court denied his request with prejudice.   

On the appellate level, however, the legislature had updated the original 1990 Americans with Disabilities Act to the 2008 ADA Amendments Act. The ADAAA resolved any discrepancies between the original 1990 and the U.S. Supreme Court and lower court cases. Particularly, in the Toyota case, the 6th District Court affirmed its decision. 

“In addition to questions about whether a test-taker has a disability under the ADA, courts are also asked to assess the adequacy of the testing accommodations being provided. In particular, by broadening the ADA's coverage, the ADAAA may have heightened the role of district courts in determining what accommodations are necessary to satisfy the requirement in Section 309 of the ADA that examinations be "accessible" to people with disabilities.

Section 309 of the ADA requires persons, such as testing companies, that offer examinations or courses "related to applications, licensing, certification, or credentialing for secondary or post-secondary education, professional, or trade purposes shall offer such examinations or courses in a place and manner accessible to persons with disabilities or offer alternative accessible arrangements for such individuals." This requirement was intended to assure that people with disabilities were not foreclosed from educational or professional opportunities on the basis of exams that failed to measure their skill or aptitude in the area being tested. Department of Justice regulations implement Section 309.41 These regulations require private entities offering examinations to assure, inter alia, that:

The examination is selected and administered so as to best ensure that, when the examination is administered to an individual with a disability that impairs sensory, manual, or speaking skills, the examination results accurately reflect the individual's aptitude or achievement level or whatever other factor the examination purports to measure, rather than reflecting the individual's impaired sensory, manual, or speaking skills (except where those skills are the factors that the examination purports to measure ...)”

Concerning Jenkins' appeal, in 2009, after ADAAA went into effect, the United States Court of Appeals for the Sixth Circuit determined that Jenkins’ case be remanded back to the district court, taking into account the new rules of the ADAAA. In addition, “Jenkins is disabled under the revised Act counsels a remand without an appellate attempt to give more precise definition in the abstract to the revised Congressional language.” Jenkins had proof of needing additional time to pass each timed examination. 

Impact

When the Jenkins case went before the appellate court in 2009, the ADAAA was in full effect. During the initial case, NBME was under the rules of the original ADA. The court initially agreed, saying, “The courts must apply the law that was in effect at the time of the decision was made.” However, when the ADAA Act was enforced through the lens of the legal system, it enhanced and narrowed the scope of the original law. 

In 2011, the Department of Justice reached a settlement with the NBME over the lack of accommodation for other students, such as Kirk Jenkins.  

Works Cited

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