next case our docket is doherty versus national board of medical examiners of discretion for several reasons but the clearest reason is that the plaintiff does not satisfy the standard for disability which is which is substantial limitation compared in to kind of go through this i want to st talk about the standard and i'll talk about the evidence that was heard at the police very injunction hearing and then i'll talk about the various arguments that are being made about that before you do that accurate i would koach to understand where we are right now  she took the test in september she was she took august th in the results were available in september the results became available by the end of august so does she know the results were tests no and i did not but she's taken it and there are the results that the board does not want to release and anybody encouraging her breast so we what the what your what the river what you want to happen is too hard to take the test again when so the the step tests these tests are not like the bar exam or the l sat it's not like there are only certain times in the year there are lots of different times you could take it at the hearing she testified that within where she lived within three hundred miles of where she lives it there were no experts or anything else it was a hearing two days after we were served with a temporary restraining order application and it was just plaintiff testifying so everything i am accounting is plainest estimate so she testified that she picked august th because she thought that would set her up to have all of her paperwork done before september th which is when this residency matching open ok when's the next residency matching thing so answer on that on rebuttal and i can talk to mr berndt going to have a firm answer on that but here here's the issue for plain if she's actually in the process and you'll have to ask her counsel about that but my understanding is it was all outside the record now but my understanding is she's actually in the process now like she submitted just doesn't ever scoria and she's interested in a residency at tulane and she can apply it in lane even without a score this all goes to why we argued there was no  in deciding whether you get in it is the score going to she alternately needs a school but he needs a graduate which she can do that correct she will be out i'm trying to get at where are we in the in the process issue when could she next take an exam and i did i did not plot out precise answers to this but the important point is it's not like the bar it's like there are multiple opportunities for her to take the exam you sit in like a cubicle it's on a computer and then she can she can take it again i mean it's possible she could take it within the next couple of weeks if she needed to ok so we were to rehearse and remain today what would happen next i think that's where we're trying to go what would happen next she would set up a date to go take the exam without accommodation and she would get her score this st quarter was ready within a month so she and how often i know it's not the bar exam but i don't imagine that they have these every day how often roughly do they have these things av ok and i soon see she testified they were like five different places within three miles of new orleans and she's were willing say to go to consistent or something like that there would be even more that ok so if we reversed and remanded today which is what you're asking us to the yes yes and within a few weeks she could go take the test and then a month after that she'd have a score guess when is the last day that she must have the school or in order to finish out with tulane whatever she's trying to do with them and graduate in the tulane hammack it's as i believe it's december th that i have sorry i do need to rely  on the two lane manual recommends taking the test before the end of the year but what i'm wondering is i'm i'm not sure that there are some remand would necessarily be that she doesn't prevail on her claim it would simply be that she didn't support her preliminary injunction on the record before us because it has to do so here we are to where this really the rubber meets the road so to speak the general population definition if we were to say well the general population is something other than it was defined in in the district court when she still had an opportunity come in and say she meets that definition whatever it is i think  yes and she could certainly attempt to pursue mr summary judgment or she could ask for some kind of expedited proceeding but just to be clear your honor like what happened here and dealing with this by way of  practice is not to be recommended what happened here was was pretty messed up quite frankly like that in a in a matter of days when the entire thing under seal this hearing is held is just plain as testimony percentile in reading grades and then in the court just lifts that up off the paper and says well look at that i mean she's in the th person so the court iranian slee says in its order that's in the general population the six percent was college educated  graduates as college graduates graduates college educated i'm trying to teach understand your position on what is a score that can be used to assess someone is reading early in the population as a whole i think your main argument is what we just talked about which is you have to it has to be various education level so college graduates is not the population as a whole and i get that i understand that but you also seem to be making an age argument and i don't really understand that because let's say hypothetically there was a test every thirty five year old tuck and someone scores bottom five percent wouldn't that mean they're in the bottom five percent of all adults and there's nothing that says thirty five year olds read better or worse than forty year olds or twenty eight year olds that i'm aware of yet that would be a lot the problem is that there's this overlap of age in college education based on the pools and in your record are eight thousand six hundred and sixty two you have an excellent article by a researcher in this area named allison harris and that kind of goes through this problem with the pools and so if i could just talk about the six percent tile test so there's just all kinds of problems with this test so it's a one minute reading test it's basically on your hon so you start out as forty one dollars lines long you start out you're gone they start the time you stop and you're supposed to put your finger down where you stopped that's the entirety that easily feigns as the article points out like this is easily manipulated st sixty percent tile among college graduates if you go to the larger norming pools like if you go from every th grade d and above who's been part of that nelson denny reading pool she would still come out about average i mean and that assumes maybe even if she's manipulating or something like that she still average in the broader pool so to go back to your question about pools in the nelson denny reading test and some of these others where they have you a grade level you can take them wrong school or and look at it in the bigger pool and that's what an expert would do if you were having say a summary judgment proceeding or something like that and look at that what is that the w i a t shirt the way the test where it says which i think is the i don't think the district court actually cited this but the other side's relying on this statement that ninety percent of students in the normative sample scored higher but i have trouble looking at the individual breakdown of seeing where that ninety percent comes  inconsistent i mean i was going to ask is the part i'm just wondering is the problem here i mean we obviously need to define what general population is but i wonder if the problem as you all were basically given no notice you just running out of the courthouse trying to deal with a case you just found out about you know the day before and so it's very willing you know not a lot of detail and room for the district court to become confused but more of that not the case where y her her numbers her record she is the least compelling plaintiff of any of the disability cases cited in the briefing so these other cases being cited like for example the opinion from the southern district of new york that then judge s them as a twenty one day bench trial with loads of expert in clinical testimony and that was an individual who could only read by using a device was an index card like an opening in a ok ninety nine percent so the closest she c like a big normed pool was when she took the ac to eat she could she was in the th percentile people who have no reading disabilities where they're limited compared to most people don't score question tax is nearly the full page so somebody somebody who is substantially limited in reading compared to most people in the population cannot get that score that's a fact  it does seem like if we vacated the injunction that there would not be enough time on remained to have a full trial and if she wins to take the test and get the score before some of these end of year approximate deadlines you're talking about and so i think your to say once you're in school and has this profile sort of getting your you're right in here this case your residence i mean there it's like what does she do for a year you know you can't go was you work in a lawyers office revenue theoretically cup it's a much more disruptive thing i would think i don't we don't have anything in the record about how disruptive it would be and compared to the other cases the other cases that she wishes to rely on you have people who would like fail the bar exam multiple times so it's really almost do or die whether you're going to be a lawyer people who are facing getting kicked out of medical school which is not facing any she could leave this here and go to take it without a dation and she could have done that from you know the time we significantly lower school or all that test in the month she got with accommodation she might not get the job ok she passed up one without accommodation so she's already taken one of the medical licensing exams and she passed as she doesn't like that's chords too low and at the hearing she also got out these charts and maybe remember these from applying to law school and they take like your score and then they show you kind of the means go or people in certain residency and she's like well i can't get the residency i want with the school or any higher score her her applications were very candid you know i want out of the park i don't know but that that is the kind of it's just to get back to the compared to most people i mean with the district would seem to understand what they've advocated for with her psychologist stanley here for megan during the korean issue before this court is whether the district court abused its discretion on this record in granting the plumeri junction that includes a legal question of what general population means absolutely and have a review and judge and i want to be clear about this the statute does not talk about general population the general population standard is introduced in the regulations which are the department of justice regulations and if you're going to go with them your grace you do you accept that standard or not your i do seem to i do i do accept the standard because it's in the regulations but the regulations also have plenty of things that are very good for our case that the other side doesn't address the regulations are very clear that the standard for disability is meant to be expansive that the test for substantially population question do you also agree the six percent score was just comparing her to college graduates in the us and any test yes in the why it why in three tests it's against the population her age why at three that's the question i had about where the ninety percent you know just worse than ninety percent and if you can illuminate me on to that that be helpful the other thing about that test though i didn't see where the district court relied on that test the district court only cited the six percent score in it orders that right dr brockman relied on both and i believe he relied on dr brooks so tell me how you where does that and i see it i have the results right here it does say ninety percent scored higher but then you look at the components and i don't see anything close speed and says the score is the same or higher than the scores obtained by ten percent of the students ninety percent scored higher and then the pseudo decoding sudoku or decoding scores the same or higher obtained by twenty five seventy five percent in the sample scored higher now you look down into the tables and how you interpret from the tables to that percentage is something that a psychologist can do but i cannot do i couldn't look at the tables and get there either but i take it from the fact that this is an accurate report of the wyatt three and the doctor brockman relied on it as a significant finding that this is the the medical evidence if you will  that she has an impairment she has an impairment in reading and decoding and comprehension and in fact that was conceded in the district court by mr barbour going and that's it page one of two of the transcript the we know is this report we're looking at the why it three is that you just run the scores through a computer and a computer spits this out or this is where it says word reading speed in those couple sentences is that the doctor brockman is typing that  i don't know the answer but it was my supposition that it's the wyatt three computer scoring in the dr brockman and uses uses that it does seem all this could be flushed out of dr brockman and testified well that's true she did not testify that's kind of hard to do so in terms of getting expert so that all of us and the district court and the court on appeal can understand all of this stuff that we don't live every day taking why a three days and least i don't  isn't that i mean that was her choice apparently to pick august th and therefore create this rush rush to judgment that a boy did having expert testimony to help everybody understand where she really fit late actually to take it so that you get your score in time to submit it for september th in terms of the n b a i mean not knowing its position on ms doretti and why she should not get accommodations i heard opposing counsel saying well she's she's easily the least deserving candidate i've seen it took them seventy days to make that determination they got the application back in april and they didn't tell her what their determination was for quite some time there the delay was definitely on their side in that timeline and then the rd response to that is there's nothing in the record where they told the district court can't can we have extra time to submit an expert we submitted an expert or we submit our own evaluation we'll be able to rebut all this but almost more importantly than that going back to these justice department regulations they are very clear about the point that outcomes outcomes and test scores are not to be determinative evidence of whether an impairment equals a disability that they may be relevant but they're not determinative and in fact i think the court about her experience was credible in all respects and the fact that she did not seek accommodations coming up through school in fact we don't have a plaintiff here who is anxious to get accommodations she didn't get them because she wanted them she got them because she needed them she got to the point in her career started doing not as well she had academically but that's a fairly common you know in high school you do this when on your to more competitive college environment you're in a more competitive graduate school environment that's a common progression to not do as well at each higher stage of education that may be true judge and that's why these cases are a little bit difficult in terms of looking at the evidence but the truth of the matter is that  to rd gear but when you get into an environment where you have to be in th gear because there's a lot of reading in order to answer the question to understand and answer the question if you have a reading impairment that's where it's going to show up and that's what happened to hi story she did not ask for accommodations in till she got to the point where she had to answer these long vignettes style questions where you have eight or nine sentences followed by as many as ten or fifteen multiple choices in order to make a diagnosis and when she hit that in medical school and she saw that these tests were really displaying her disability not her knowledge because meanwhile she's taking other tests orally or with short questions and she's doing fine but the longer questions are where her disability get shown and so it's at that point for the st time in her life she says i recognize that i need to ask for an accommodation we don't have somebody here who is trying to game the system ok we still have to do with general population yes so where do you have to be within the general population to be disabled well  to say there has to be some discretion in the court to view that on a case by case basis because general population i don't think would include infants or would include people who may be illiterate obviously it's not fair to compare them against and the tests that we're looking at i'll admit they're not ideal nelson denny is college graduates y of three is a broader spectrum of students her age which is a little bit broader but it's still students her age there's a test every single public high school student in texas from people who are going to harvard of people who are not going to graduate high school but i don't think this test a good test disability i think but these are needed or you have these are just reading tests well and that's why it three and again that's why i refer the court to the justice department explanation of this about relying on these testing outcomes because that was actually proponents their evidence is there in addition to the  three we're not going to rely on that exclusively that puts her in the general population on some and you haven't answered my question where would it be low enough in the general population to come within the regulation number one and number two where's that evidence i think if the evidence that she reads at a pace slow or her processing speed in her reading comprehension is slower then the general population which i would put it at a fifty percent what general population would be i would say her adults who are fairly educated enough to read and the way you can prove that it is simply through h are based on fifty percent if fifty percent of the population using my transmission example could only go up to nd year then maybe fifty percent would be disabled my argument my argument feel a little inconsistent with because then the whole test should just be taken longer i mean just on the test time is or is wrong or alternatively if half the people are having trouble with the test that'll show up in how the test score is is why did you know if i take a test against people and i don't do very well but everybody else does worse i may still get an a in a class that i don't know a thing about because nobody else knew even less about it general population unfortunately is not defined in the regulations and you can see the court struggling with that and some do use nelson denny as a proxy and some use other psychological tests as a proxy they use the testimony of the plaintiffs as a proxy they also use this idea of having the expert evaluators as a proxy it is the best we can do to apply the standard were given in this circumstance but i need to also make some vague thing that how does the district court feel about this person is good enough because that completely undercuts yes i understand expansive test but it's also a highly critical thing because she gets more time and therefore does a better score than she could supplant someone who didn't get the more time and got a worse score because they would have benefited everybody would have benefited from more time i mean we can rebut that everybody but maybe one or two who are just quite thinkers and that's it they just don't need the extra time but most people would benefit from more time on any test i respectfully disagree in this context with this test there is no dispute in this record that this test is a mastery  therefore you either know the material or you don't why is there any time limit then well i don't know i didn't construct the test there is a time limit but because when you read something fast you miss things have you not ever done that you read the opponents great pretty fast and you miss a whole paragraph where they made the point that you thought they didn't make worse as you go back and you really study paragraph by paragraph and we've all done that read a case quickly or read something quickly an article in the newspaper and you miss oh i missed that sentence that your spouse then points out or something like that when you have a lot of time you have a longer this whole page to read and you have a lot of time to read it you will absorb more that's the whole idea of speed reading and testing you on speed reading is not did i see the words but did i absorb what those words were saying i understand that this is this was not designed to test how fast you read well then they should give everybody more time we well i again i'm not writing their test for that but in a situation where you're giving someone a long vignette and they don't have time and this is the testimony under about it in the district court record she can't finish the question in order to answer the question appropriately and if she was given additional time as she was it to limit school with the same type of questions she can watch the city didn't get additional time at tulane she did yes she applied for it and did it do you want to address the what ifs so obviously if we affirm we know what happens then but what if we were to reverse because we concluded that as a matter of law the judge failed to apply the proper test for what the general population is then what would happen she would have to go back and try to either go to court and establish her case with more evidence which i don't think she would be able to do within the timeframes of how this entire process works or she would have to try to take this particular step to test without accommodations and hope for the best and even then she would have to submit those scores she's late in submitting the scores in this is outside of the record that we were sort of invited to talk about it she has submitted forty nine dollars applications she has been rejected by nine and the only interview she has been given is at tulane which she was guaranteed to get just what she wants that's the place she will but there's no guarantee she's going to be accepted into the program of course but she was guaranteed the interview so of the schools that have responded nine have said no you're not getting an interview and with each passing day more interview slots are going away so in essence what she's really looking at if if this court says go back and do it over is waiting a year and what would what would she do in  and if that happened for whatever reason that mere existence what would what what it what is available to her to do that relates to the medical profession that i do not know that if there are you know she was guaranteed because she tends to like yes and instance you need to get them to score for them to be able to confirm if i want her well to lean she has to get the score in in order to graduate and so i think that that's a deadline of december th there's another step to test that she took without accommodation because that was a clinical test where it didn't have the long vignettes that she did not request an accommodation for that test and harry took that and took that as i don't know if she passed it and she stayed out we had this exchange with council of state about when she could take it so if we were marcia remanded today and i'm not suggesting we will but i'm just saying if then when would she be able to take this test again the i would say she'd have to get in there's a application permit that she has to get that she can register for the test so probably within the next three weeks and then there be three weeks after that to get the score and that's estimating based on what i've read the record having not been through this process myself always the case under seal the district court megan has been sensitive to the fact that she doesn't want to be regarded as impaired and did not want to go into residency interviews telling schools that she has a reading and decoding impairment says she would have preferred not to have that publicized so procedurally was there a motion to seal yes it was granted before the other side yes and on my advice in this appeal i said i think you're going to need to tell the schools anyway and if you gain the accommodation they need to understand it so we should move to lift the seal and not operate under that  the i can't emphasize enough that the regulations are intended to be expansive and it may cause all of us a pause to to read them that way but they're very clear in a particular appendix  clear testing agencies like the n b m e went to the d o j and attempted to insert the idea that these testing outcomes that we've heard so much about should be determinative and the department of justice specifically said we decline to do that because it's inconsistent with congressional intent and the idea that a high achieving student like megan must either constantly request accommodations or lose them at some point in her career when she really needs them is inconsistent or certainly on everything and if you have someone who's been diagnosed with dyslexia since at the time they were four years old there's a host of things that go into it but it just seems like here the test scores really were the basis for the injunction so i mean that i read i guess i read the district perhaps because the transcript in indicated the judge asking questions and i thought he went deeper than just the test scores and perhaps the opinion you know gave that impression but i got the impression from reading the transcript and the opinion in tandem that the judge took the whole thing and of course it was it was quick because there's a lot of these testing cases out there which one do you think is helps you the most i think the bartlett case in the burger case the bird case of course is the one that's on appeal i think now to the th circuit but the bartlett case out of new york and  case i think there are both good unless you're under seventy for the questions for i just want to apologize for not being there to answer the timing question marks so have been able to talk with mr going the match occurs in march two thousand and twenty and between now and then she should have enough time to get a new testing date possibly in a matter of weeks and take it without accommodation to to participate in this you know what about her just send her thirty graduation deadline so that and and the september th that's when this opened so she and you when the issues in these cases you don't want to be i don't want to be derogatory toward a student who's trying the best she can and you don't want to do well like that that's great and so she set this up to like kind of have her ducks in order when this thing opened to hopefully have a better score with accommodation and do really well in the residency match and that's she's been very clear about that in her testimony and in her application for an accommodation that she wants to get the best score she can get so this argument about well it's just a mastery and is kind of you know pass fail you know for purposes of medical licensing that's true we don't want anybody to be a doctor who can't pass these tests i mean we really don't want but that's not what's before you was before you is an individual who wants a higher score and she was very clear about that in the district and how does disability play in that because we know for example i am much more familiar with the l s a t there isn't really a pass fail on the l s a t you get a score but that score will determine what law school in part and but in a large part what law school you can go to and in turn the law school you go to you can have a significant impact on the job you get not all jobs you can still put up a shingle in and say law office is a katherina haynes's songs i can pass the bar but getting a job at you know certain firms in ands and other places to u s attorneys offices kinds of things it can matter so is where does the concept of the disability act figure in that getting into harvard versus getting into the neighborhood night school when you're in this you know we're down to sort of the smallest here ok it's going to be very difficult for somebody who's getting the kind of scores she's getting on the a here we need to decide what general population means where there's evidence in this record that supports general population if there are other regulations that shed light on this and that's where we need your help as a lawyer not here to argue about her individual case and have someone who's you know knocks it off the charts and in science and math and all these other things but reading is really low i mean that maybe reading is only twenty five percent but that in context that could be more indicative of a reading disability given what a departure it is from their other academic abilities correct so i do not want to be heard as saying you know somebody with these scores could never because you're example is a good one and keep in mind  they made it clear that you're going to take into account certain mitigating measures so let's say you had a device or you know a particular technique or what the plaintiff in bartlett had this card she used to kind of focus in on as she as she went device can get an acceptable score but if you tested them without the device there's no way they could get it even though they would they would do quite well otherwise it would be a much different situation you asked you know give me give you the them i think that yeah a score i guess i guess we'd release a score and then it would be up to indian need and then just to be clear we'd release a score and then we don't know what that is maybe she failed with the accommodation maybe she did really well with the accommodation we don't know just to be clear if we release the score and then the harm is done to other candidates right because then if that score was unfair she'd she does she can beat somebody and  not just people who didn't get accommodations she could be the student who has dyslexia or who reads with a device who would qualify for an accommodation every single time and then somebody doesn't deserve one is you know could potentially beat them so we would release her score and then it would be up to m b and me whether to go back and fully litigated and be a me is there's no nobody takes any joy in turning down accommodations work to assess that but you need to understand the pools and so i'm asking you tell me what evidence you would put on so you would say yeah in your standards this person has taken this this and this test and scored the m cat receive far more weight because she is she's motivated to do well in those exams she took them without accommodation and she scored extremely well and then on the other side you have these tests that are taken because you know you make a private appointment her materials and filled out a form she had a personal statement which is in your records and in the bottom line if you don't get a commendation on the i c t here they'll set you don't get accommodation on your own you know no i just think it's not going to be as you know throughout elementary school high school college various assessments of you and test scores and the truth is you don't really need to go looking that hard to see the people with real reading disabilities they don't do well on standardized tests which include a lot of reading i mean they don't score in the ninety nine percent tony c t they struggle reading and so you would sign up in med school but try not to be in med school they're not going to be in that school a lot of them you know what percentage roughly you are granted on this exam accommodations you said there are thousands of some of the thousands of request that we see a disproportionate rate of accommodations among wealthier kids going to selective expensive private schools it's all in the record that this this is in studies it's not in the record