Accommodations Not Altered Scoring: Clarifying ADA § 309 in Zangara v. NBME

1. Introduction

This commentary examines the Third Circuit’s decision in Jason Zangara v. National Board of Medical Examiners (3d Cir. Apr. 28, 2025). The case pits a medical student’s challenge under the Americans with Disabilities Act (ADA) against the private test-developer NBME’s standardized examination scoring methods. Zangara, diagnosed with ADHD and learning disorders, alleged that NBME’s complex, norm-referenced scoring discriminates against examinees with disabilities in violation of Title III of the ADA (42 U.S.C. § 12101 et seq.). The Third Circuit affirmed the district court’s dismissal under Fed. R. Civ. P. 12(b)(6), holding that ADA Section 309 requires “alternative accessible arrangements” (e.g., extended time, separate quiet rooms), but does not mandate psychometric equivalence of raw scores or alteration of grading curves themselves.

2. Summary of the Judgment

The Court of Appeals consolidated two appeals arising from parallel district-court actions in New Jersey and Pennsylvania. Zangara’s amended complaint alleged disability discrimination based on NBME’s use of historical-norm anchoring to set passing scores on exams like the CBSE and CBSSA. He sought an injunction banning any comparison of his performance to other examinees. NBME moved to dismiss for failure to state a claim. The district court concluded that:

Zangara had never requested—and was never denied—any specific accommodation under ADA § 309;
Section 309 of Title III obligates test-providers to furnish accessible testing arrangements, not to redesign scoring models or grading curves;
The amended complaint failed to plead facts raising a plausible ADA claim.

The Third Circuit agreed and affirmed, emphasizing binding precedent in Doe v. National Board of Medical Examiners (3d Cir. 1999) and rejecting Zangara’s invitation to extend the ADA beyond its statutory text or to import disparate-impact theories unsupported by § 309.

3. Analysis

3.1 Precedents Cited

Doe v. NBME (1999): The Court held that ADA § 309(42 U.S.C. § 12189) requires “changes to examinations—‘alternative accessible arrangements’—so that disabled people … may take the examinations without those features that disadvantage them,” but does not obligate psychometrically equivalent score results.
Kronos Inc. (3d Cir. 2012): Addressed EEOC subpoena power in ADA employment-testing contexts; did not alter § 309’s accommodation focus.
Bell Atlantic Corp. v. Twombly (2007) & Ashcroft v. Iqbal (2009): Articulated the “plausible claim” standard for Rule 12(b)(6) dismissals.

3.2 Legal Reasoning

The court applied de novo review to the Rule 12(b)(6) dismissal. It assumed Zangara’s factual allegations true but found three fatal defects:

Zangara never asked NBME for any particular “reasonable accommodation” (e.g., extra time, separate room, assistive technology) or “alternative accessible arrangement,” so there was no denial to challenge.
Section 309’s plain text and implementing regulations (28 C.F.R. § 36.309) govern how exams are administered—“in a place and manner accessible”—but do not speak to the statistical methods used to interpret or curve results.
Under Doe, accessibility means removing or modifying exam features that impede disabled examinees; it does not extend to psychometric remedies preventing any score disparities.

Zangara’s theory—that any historical-normed scoring system necessarily discriminates—would rewrite Congress’s careful scheme. Title III contemplates individualized accommodations, not wholesale reformulation of grading methodologies. Nor did Zangara plausibly allege actionable misconduct under any other ADA provision or state law.

3.3 Impact on Future Cases

This decision reaffirms that:

ADA § 309 limits test-provider obligations to accessible testing conditions, not the underlying psychometric processes.
Plaintiffs must request and be denied specific accommodations before § 309 claims mature.
Disparate-impact theories and demands for core scoring overhauls fall outside Title III’s accommodation mandate.

Going forward, disabled examinees will continue to rely on individualized accommodation requests (and potential litigation over denials) rather than as-applied challenges to norm-referenced scoring systems. Educational institutions and licensing bodies can maintain standardized scaling models, provided all examinees have equal access to requested accommodations.

4. Complex Concepts Simplified

42 U.S.C. § 12189 (ADA § 309): A special ADA rule for exam-providers requiring accessible test sites/arrangements (e.g., extra time, larger print), not psychometric equality of exam results.
Norm-referenced scoring: A method that compares an individual’s raw score to a historical or contemporaneous group’s performance to set passing thresholds.
Reasonable accommodation: Adjustments or modifications enabling a qualified person with a disability to take an exam under equal conditions (e.g., use of a separate quiet room).
Rule 12(b)(6) “plausibility”: A pleading must allege enough factual content to allow a court to draw a reasonable inference of unlawful conduct, not mere speculation.

5. Conclusion

Zangara v. NBME underscores the scope of ADA test-accommodation law. While ensuring meaningful access, Section 309 does not reach into professional examiners’ psychometric toolboxes. Courts will continue to enforce individualized accommodation requests but will not rewrite grading curves in the name of disability equality. This decision thus fortifies the principle that the ADA mandates equitable access, not identical outcomes, in standardized testing.