When School itself is the Barrier to Learning

When School itself is the Barrier to Learning

by Jennifer Parks

The COVID-19 pandemic caused a major disruption of the educational system and its ripple effects have stretched far and wide. In March of 2020, we were suddenly thrust into the uncharted territory of Zooming and navigating the unfamiliar waters of online teaching and learning. Teachers and students alike were relieved to see the school year come to an end, with hopes we would be coming back in-person in the fall.  But, by August 2020 when things were clearly not returning to “normal,” some families chose the full-time remote learning option. With little time for preparation for families or teachers, we were concerned about how students with differing learning needs would be impacted by these unprecedented circumstances. 

Our district, located in rural southeastern Vermont, joined a collective of teachers from multiple districts across the state. Online learning for our school was a blend of synchronous and asynchronous instruction anchored by an online learning management system. The synchronous time was class time or 1:1 time with a teacher over Zoom. The asynchronous time is when students work on their modules at a time that is convenient for them. My role as a special educator was to provide academic services to students on individualized education plans ensuring students have access to and make meaningful progress in the general education curriculum. I also supported their families in developing routines, solving problems, and communicating progress. Some students and parents realized online learning was not a match, but others found unexpected benefits. 

This is Oliver’s story. 

Oliver, as I see him on Zoom three times per week, is a well-groomed ninth grade student with jet-black hair, brown eyes, and a distinctive voice.  He wears glasses and is always right on time. Oliver is diagnosed with autism and is one of the 14 - 30% of students from the divergent community who are enrolled in public schools across the nation. Prior to this year, his only experience with online learning was when all schools closed in March through June 2020 and all students finished the year remotely. This was my ninth year teaching, but my first year teaching fully online, and my first year with Oliver. 

We would begin our sessions with a brief check-in. Oliver would tell me about his work at the dairy farm and at the stable where he takes horseback lessons, and then we were ready to work. On Mondays we would preview the math objective for the week. Oliver would read from the online textbook, as I pointed out key ideas, and together we would try the practice items. On Fridays, we focused on spelling and writing. Although Oliver had no problem reading multisyllabic words and comprehending grade-level text, he struggled with spelling basic words. This made it difficult for him to take notes, respond in the group chat box, and write without the aid of spell-check. His two lovebirds would chirp in the background as Oliver and I worked on the weekly lesson. It was a peaceful, focused, and consistent routine. On Wednesdays, I would Zoom with Oliver and his parents, Anna and Chad, for weekly case management. We would review Oliver’s progress and check in on how the week went. Oliver appreciated the check-in and that we would also talk about other things, have conversations, tell stories, and laugh. This became an important time together, and I began to learn more about Oliver.  

Oliver’s early educational experiences were marked by social and academic difficulties in school, misunderstandings, and tense relationships. The problems all started in kindergarten when he had sensory issues and communication deficits that contributed to behavior problems in school. When Anna met with his teachers to gain more services for her child, all the focus was on his failures, The only options available would exclude Oliver from his general education peers.  Anna remembers asking “Why do you need to take him out of class for this instruction?” At which point she was told his instruction would be a ‘distraction’ in the regular classroom.

In upper elementary, Oliver recalls being placed in a low reading group with younger students with disabilities and some with severe learning challenges. Oliver felt that when he was in the reading groups, he was not being challenged. Rather he began to recognize he was labeled with a disability and felt confused by being required to leave the classroom for “one size fits all” services. He was rarely given the opportunity to engage with his peers in the regular classroom.  Due to his Autism, it was difficult for Oliver to speak out. This began to impact Oliver’s emotional health and contributed to feelings of depression, anxiety, and low self-esteem. It seemed that no one recognized his strengths and abilities to engage in the general education classroom. He felt defined by his divergent neurology. Anna and Chad needed to provide supplemental experiences themselves. They read countless social stories and tried many therapeutic exercises to increase Oliver’s performance in school. Yet it always seemed there were unexpected and painful barriers to including Oliver in any meaningful way. 

Hot Chocolate and Cookies

As we talked about this Oliver’s father, Chad became very animated, “Here’s a story about hot cocoa and cookies.” He described how Oliver was excited to participate in the after-school ski program. The organizers said Oliver could only participate if he had 1:1 support due to his diagnosis and perceived support needs. So Chad offered to ski with them and provide support. He went on to describe how he was able to use a donated corporate pass to get on the mountain, so they were excited for the first day. After a day of skiing together -- father and son -- they returned to the lodge where the  coordinator set out hot cocoa and cookies for all the kids from the school. Chad was excited. This would provide an opportunity for Oliver to mingle socially with his peers. However, when Oliver went to get some refreshment, the other chaperones told him he could not have any hot cocoa because he wasn’t, “part of the ski program.” “I was angry and embarrassed,” Chad remembered. “So, for the rest of the season, we used the corporate passes to enjoy french fries and soda and have a weekly father/son bonding adventure, but I will never forget how the school made Oliver feel that day.”

Substitute Teaching

Next, Anna recalled a period of time when she was a substitute paraeducator in Oliver’s school. The school felt it would be a conflict of interest for Anna to provide para services to her own child, so she had to watch other paras struggle and fail to engage him.  She recollected how painful it was to watch Oliver receive mediocre service or be ignored altogether. She noticed that Oliver’s work was reduced and overly modified. He was not being challenged academically, possibly due to assumptions about his diagnosis. The disappointment is still visible in Anna’s eyes. “It’s the school’s responsibility to adequately provide both a learning environment and specialized instruction so the child can make progress. The school is supposed to be accountable to Oliver, but they failed.” Anna’s intense and determined gaze reached through the computer screen. “We do not fail Oliver,” she declared, “I will not fail my child. And I will make sure no one else does, either.” 

As a special educator, it was difficult for me to hear about these experiences. I apologized to Oliver, Chad, and Anna for the hurt they felt in the past, and I made a vow that Oliver’s high school experience would be different. We agreed that teachers need to educate themselves about students with divergent neurology. They need to understand that no one person diagnosed with autism is the same as another. 

Oliver explained it like this, “There are an infinite number of subdivisions of behavior and preferences, strengths and weaknesses. So, every student with autism is different.” Oliver continued, “This means if a student needs specific support for behavior, sensory experiences, or academics, it should be provided in a way so that services don’t make them feel like there’s something wrong with them.”   

When the pandemic hit, the family knew online learning was the only option to keep Oliver safe. Work schedules were adjusted to build a consistent routine for Oliver’s studies.  In this model, Anna was able to be the attentive paraeducator she knew Oliver needed to do his best work and achieve his highest potential. “No one else was going to give that to my child,” Anna asserts. Anna is quick to point out that she doesn’t do the work for Oliver. She supports him by taking notes, so he can devote his attention to class instruction and participation. Anna and Oliver read the weekly units together and plan the week’s work. Many neurotypical students and their parents can be overwhelmed by the sheer number of emails coming from the automated learning platform and from teachers, so Anna helped Oliver manage these communications and due dates. Oliver’s math teacher recorded and posted each lesson so it could be reviewed at any time. Furthermore, students could retake the quizzes if they didn’t perform as well as they wanted. 

Over the year, online learning revealed important information about how Oliver engages with written expression. Oliver’s thinking and writing processes require movement. He would begin by walking around the dining room table, pulling out each chair before pushing them back in. He would pace in the living room as he worked out a starting sentence in his mind. Anna would wait silently at the computer until Oliver was ready to dictate. Suddenly Oliver would lecture for 30 minutes. It was as if the floodgates opened. Anna described how sometimes Oliver was speaking so quickly that Anna had to ask him to repeat himself to capture every word. Using this strategy, Oliver has written some of his best paragraphs of the year. Anna remains convinced that he never would have had this level of freedom to move and think in the traditional classroom, and I have to agree. 

In the online environment, Oliver’s services were incorporated seamlessly into his schedule. He received targeted help without being removed from the classroom and worrying that he’s miss something. He attended a variety of 1:1 appointments to work with his teachers on required skills in each content area, received direct services in math, reading, and writing, as well as communication. 

By working online, Oliver began regularly turning in grade level work and he was visibly proud of it. In earlier years, his work was always modified but he still struggled, particularly in math.  Often Oliver’s work looked different from other students’ work undermining his sense of accomplishment. This past year, Oliver’s work looked the same as every other students. The online platform provided digital textbooks for each of his classes. Some lessons were shorter than others, but some were as long as 12 pages. But this was no problem for Oliver. If he needed a break, he could take one at any time. By the end of the year, Oliver did not require any modifications and regularly earned high scores. Furthermore, for the first time, Oliver became a fully included classmate, blending in with his peers. No one knew that there was anything different about him.  

In the online classroom, Oliver felt confident to raise his hand and speak up frequently. In a discreet observation by the speech-language pathologist, the report said that he was the second most engaged student in the class. At this, Anna and Oliver shared a smile. “In fact,” Anna remembered, “The teacher has to say, ‘I’m looking for others who haven’t answered!’ “     

Over the past few months, I’ve had many discussions with Oliver and Anna during our weekly case management sessions. Reflecting on what made this year so successful, we found specific aspects of remote learning that seem to have made the difference:

  1. He was able to focus on one subject per day, at his own pace and in his own way.
  2. He had the entire week to complete challenging modules.
  3. He had access to one-to-one services over Zoom.  


Anna explained that online learning has been the silver lining of the pandemic. Not being in the school setting gave Oliver the chance to truly engage with grade level material for the first time in years.

“We plan to enroll online again next year. And I’m not sure we’re ever going back into the classroom.”     

Anna’s statement brings up mixed emotions for me. On the one hand, like her, I feel protective of Oliver. I can see how well he responds to the routines of his online learning experience, and his performance- nothing below an 89- speaks for itself. Given his intellectual engagement, I can envision Oliver taking increasingly advanced online courses, becoming a more independent student, and possibly charting a path to college. On the other hand, I want Oliver to have the opportunity to come into the building to learn in person and make friends. Then I immediately worry about the constraints of the bell schedule and instructional minutes lost to classroom disorganization, the barrage of sounds and smells, social pressures, and the intensity of engaging with so many people. Oliver would need to adapt to a vastly different environment than the remote experience. He would need to adapt to the environment because the environment is not willing or able to adapt to him. What would an educational system that fully understands, supports, and champions divergent students look like?      

According to the law, schools must provide a continuum of services that constitute a “least restrictive environment” for students with learning challenges. For too long neurodivergent students have struggled in unyielding and unresponsive classroom environments and systems where compliance is the priority; individualization is seen as an inconvenience. Special ed services are something that happens to them for years without explanation. Sometimes students are removed from classes, given modified work, or shuffled into special programs, suggesting these students aren't valued members of the learning community. This can contribute to a lingering feeling of separation from the norm and a qualitatively different educational experience. This can have long-lasting impact a student’s self-perception and willingness to take risks. This outcome is simply unacceptable. 

Thankfully, flexible options such as online learning and customized schedules are now available to better meet the needs of students like Oliver. With the support of special educators, improved systems of communication, and professional development in Universal Design, teachers in the general education setting are adjusting their practices to improve accountability and instruction to the full spectrum of students who appear in their classes. Still, there is much work to be done to reform educational practices so that the gifts and capabilities of students with divergent profiles can be fully realized. The time is now and there is not a minute to spare. 

Oliver’s story is still being written and will unfold in unique and beautiful ways. While he chose online learning again for 10th grade, he is open to attending in-person classes in his junior and senior years. I have no doubt that Oliver will be successful, and I am grateful to be a part of his journey.  

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Does the The Vermont Standards Board for Professional Educators (VSBPE) Violate ADA Title II?

Does the The Vermont Standards Board for Professional Educators (VSBPE) Violate ADA Title II?

Steve Owens is the Principal of ​Albany Community School in VT and was formerly a member of the VSBPE as well as Secretary-Treasurer at VTNEA. Owens wrote this essay for a course required for his Principal endorsement. He is on a journey of self-discovery as to why he is so passionate concerning equity in education. He believes that neuro-divergent children need to be able to see themselves in their teachers.

by Steve Owens  

Introduction

                I was appointed to the VSBPE July 1, 2105.  One of the roles of the VSBPE is quasi-judicial - we hear requests for waivers for certain rules.  One of the most common waiver requests heard by the Board is for relief from the requirement of a minimum Praxis cut score, which, due to rules that will be enumerated below, are always made on behalf of individuals with documented disabilities.  Three cases that the Board heard during 2015-2016 stand out.

An art teacher could not pass Praxis Core Math. The Education Testing Service, the corporation which sells the Praxis tests, botched her accommodations on multiple occasions.  Testing anxiety is a frequent symptom in cases of learning disability.  The failure of the accommodations was so anxiety provoking that this teacher broke down in tears before the Board during her hearing.

A successful music teacher cannot pass Praxis Core Math with accommodations in 3 tries.   A waiver is requested on his behalf to enable him to transfer his Praxis waiver to another school district so he can advance professionally to a full time job at a larger school.

A EEE teacher whose disability has been documented since early childhood and who cannot pass Praxis Core Math with accommodations.  ETS required her to get re-evaluated to receive accommodations, even though this is contrary to regulation.

It was the second case which gave me pause.  As a music teacher myself, I knew full well that the job does not require mastery of math - math is not part of any essential job function.  This led me to begin to make inquiries at Vermont-NEA and with attorneys I knew about whether these cases could be discrimination under civil rights legislation.  I also reached out to colleagues from the US Department of Education's Teaching Ambassador Fellowship Program.  These conversations connected me with the history of racial discrimination around the Praxis exams.

                It is incumbent upon members of statewide boards to exercise leadership when encountering possible discrimination.  I decided  to take the research opportunity afforded by this assignment to begin fleshing out the answers to the questions I now had about the VSBPE rules regarding disabled individuals.  I began to consider how to move the VSBPE to end its discriminatory practice.  It would be best to persuade the VSBPE, using both moral and legal arguments, rather than use the hammer of administrative action or litigation

                Nonetheless, establishing a plausible legal basis for litigation to mitigate discrimination is an important first step.  The possibility of litigation can drive a settlement short of the court system.  This paper will explore legal issues around Vermont Standards Board of Professional Educators (VSBPE) rules concerning Praxis I and Praxis Core tests, and how those tests impact individuals with disabilities.  In addition it will attempt to "backwards design" a legal basis for action sufficient to leverage a solution short of litigation.

                The main question is as follows:  Does Vermont Standards Board for Professional Educators violate Title II of the Americans with Disabilities Act (ADA) by issuing restricted licenses to individuals with documented disabilities, and who cannot make a cut score on the Praxis Core, and for whom the test does not measure an essential job function?


The Americans with Disabilities Act (ADA)

The ADA was passed by Congress in 1990 to extend the protections of Civil Rights legislation to the then 43 million Americans with disabilities.  It includes three Titles:

Title I governs the treatment of disabled individuals by employers.

Title II of the Americans with Disabilities Act governs how disabled individuals are treated by government entities (including state and local)

Title III governs public accommodations, especially transportation systems.

Examination of the statute and supporting regulations make clear that the VSBPE, as a public licensing Board created by state statute is governed by Title II.  Subsection 2 of the ADA states as follows:

Sec. 12132. Discrimination

Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

That state licensing boards regulating entry and participation in professions such as law, medicine, and teaching are subject to Title II is well established in law.  This is illustrated by an enormous body of case law that has emerged due to individuals seeking accommodations for professional licensing examinations. (Chanatry)(Taylor, Goldstein and Lowe)


The Praxis exams

                In the early stages of inquiry (well before taking GED 567) I read the collaborative research sponsored by ETS and the National Education Association concerning racial disparities in Praxis performance and how to mitigate them.  The following is a description of the Praxis I series.  The Praxis Core series is the successor to Praxis I.  This is the best description I have found of either series:

"Many colleges and universities use these tests to evaluate individuals for entry into teacher education programs, and in some states, the tests are required for licensure. The Writing test contains a 30-minute essay; all other questions on the test are multiple-choice. The Mathematics test focuses on the key concepts of Mathematics and on the ability to solve problems in a quantitative context; the level is equivalent to that of the first two years of high school Mathematics. The Reading test features Reading passages of a variety of lengths and on a variety of subjects, accompanied by questions that address literal, critical and inferential comprehension. All of the content and skills in the three Praxis I tests are expected to have been mastered in P–12 education, are covered in all states’ P–12 standards and in the Common Core Standards and, therefore, cover skills that do not exceed a high school level." (Tyler, et al)            

Colloquially, it is said that the Praxis I/Core is a test of eighth grade skills.  One interesting finding is that older students do worse than students in the first two years of college.  This raises questions about the persistence and applicability of high school curriculum into adulthood.  If people actually used it, would they retain it better?

                An important fact to note is that in Vermont it is the math component of the Praxis which is the barrier for most people, whether or not they have a documented disability.  The Math test often causes difficulties in endorsements such as cosmetology and school nursing.  In fact the VSBPE in its latest rules revision eliminated the Praxis Core requirement for nurses. 


How is Praxis used in Vermont teacher licensing? 

                16 V.S.A.§1694 establishes the “Powers and Duties of the Vermont Standards Board for Professional Educators”, including:

(4) Establish Standards, including endorsements, according to which individuals may obtain a license or have one renewed or reinstated.

16 V.S.A.§1694(4) therefore is the statutory basis for the VSBPE's employment of the Praxis.  The rules of the VSBPE breathe life into the statutes by establishing procedures to be carried out by Agency of Education personnel.  According to the Vermont Secretary of State's office, the Vermont Administrative Procedures Act provides that, "Rules adopted under this process have the force and effect of law."  Very few citizens outside the  political elite have an appreciation for the power of rules and regulations.  It is not enough to pass a law - the intent of that law can be altered or redirected by the rules and regulations that animate it after passage.  This is why the VSBPE has lobbyists and advocates in attendance from entities such as Vermont-NEA and ETS itself.  The following rules are relevant to the discussion:

VSBPE Rule 5241 

-Except as otherwise provided by Rule 5246, or Rule 5436.2(B), all applicants for initial licensure under sections 5310, 5320, 5330, or 5340 of these rules shall be required to meet the passing scores established by the Standards Board on the Praxis Core Series examinations in reading, writing, and          mathematics or other skills examinations selected by the Standards Board. 

VSBPE Rule 5246.4 

                Waiver Of Praxis Core Series Requirement

A. A superintendent may apply for the waiver on behalf of the school district.

B. The school district would need to demonstrate that not being given a waiver would substantially inhibit the district's ability to carry out “its locally established objectives.”

C. The prospective teacher on whose behalf the waiver is being requested must   document that he/she:

1.  has undertaken additional efforts to acquire knowledge and skills necessary such as tutoring and courses,

2.  has an identified and documented disability and has exhausted all ETS procedures for accommodations for that disability; and

3.  has taken the exam a minimum of three times without being able to meet the required cut scores.

D. If A - C are met and the VSBPE finds that the candidate is otherwise qualified, the VSBPE will instruct the Educator Quality Division’s Licensing Office to issue a license that is restricted to teaching in the school building of the district making the waiver request.

                VSBPE Rule 5952 

The VSBPE shall only waive its rules under extraordinary circumstances, and under circumstances in which the interests of all affected learners are protected. In considering a waiver request, the decision of the VSBPE shall be final. This rule shall not apply to the consideration of particular waiver requests which are presently, or may be in the future, covered by separate, and more specific, rules regarding waivers (such as any such rule pertaining to Praxis testing).  (emphasis mine) (Vermont Standards Board for Professional Educators)

Taken together these three rules mean that 100% of teachers who receive a license to practice which is restricted to a single school building will have a documented disability.  They cannot even move from building to building within the same district without another waiver. In addition, these teachers are unable to move from a level I to a level II license. A rule which impacts the single class of people with disabilities, creating barriers to their mobility, professional advancement and employability, as well creating a burdensome waiver process, is discriminatory.


Four Approaches and an Issue 

                As I researched this issue my thinking evolved.  Over time I considered four legal approaches, and in the process discovered a corollary issue that bears on the problem, and should be cleaned up at the same time.  They are:

  1. The original idea - seek Title II enforcement on a case by case basis, because the test does not measure an essential job function.
  2. The VSBPE compels school districts to violate Title I.  There is evidence for this approach in the Code of Federal Regulations for Title II of the ADA:

        "§35.140 Employment discrimination prohibited.

(a) No qualified individual with a disability shall, on the basis of disability, be subjected to discrimination in employment under any service, program, or activity conducted by a public entity. 

(b)(1) For purposes of this part, the requirements of title I of the Act, as established by the regulations of the Equal Employment Opportunity Commission in 29 CFR part 1630, apply to employment in any service, program, or activity conducted by a public entity if that public entity is also subject to the jurisdiction of title I. 

(2) For the purposes of this part, the requirements of section 504 of the Rehabilitation Act of 1973, as established by the regulations of the Department of Justice in 28 CFR part 41, as those requirements pertain to employment, apply to employment in any service, program, or activity conducted by a public entity if that public entity is not also subject to the jurisdiction of title I." (eCFR)

I rejected this idea, because it would involve suing the school district, and that seemed neither efficient in terms of achieving a global solution, nor in the public interest.  The school district did not create the problem.

  1. Generally it is worth exploring state statute because state statute can provide more protections/benefits (think FMLA.)  I explored 21 V.S.A. §495, but how the VSBPE fit in that statute was problematic.  The only definition that at all fit was that the VSBPE is an "employment agency" engaged in "classifying" or "referring" workers.  That seemed like a stretch, and not the most productive approach.
  • I encountered a 2006 law review by Michael Ashley Stein & Michael L. E. Waterstone in the Duke Law Journal.  They developed a theory involving class action and disparate impact in disability rights cases.  The theory made sense to me, and combined with #1 above, is the centerpiece of what follows.

  •                 I discovered a standalone issue in the course of research which bears on the VSBPE's responsibility, and could have a bearing on a solution: the responsibility of licensing boards for granting accommodations.  (Goldstein, Lowe, & Taylor, p. 3)  Currently VSBPE defers to ETS in these matters.

  • Four Levels for Analysis
  • There are four levels to analyze to understand the legal landscape of the issue at hand:

Federal Statute - Civil Rights Act of 1964, Rehabilitation Act of 1973 (including Section 504), ADA 1990, Civil Rights Act of 1991, ADA Amendments Act 2008

Federal Regulations - These statutes are unified in the Code of Federal Regulations.

Enforcement agencies - The Federal Regulations call for a broad range of enforcement spanning multiple Federal Departments and Agencies.  The best known perhaps is the Equal Employment Opportunity Commission (EEOC).  Title II cases in higher education can also be brought to the Office of Civil Rights at the U.S. Department of Education.

The Courts  - I am "backwards designing" a solution to the VSBPE Praxis question, so I will begin with the Federal courts.


The Federal Court System 

                The general trend in anti-discrimination law is that after a period of advances, conservative courts generally begin to become more restrictive in their interpretations.  Evidence of this is found in the Civil Rights Act of 1991, where Congress did a reboot in the wake of the Ricci decision (among others), and in the ADA Amendments Act of 2008, which eased the path for the disabled in litigation after two decades of court decisions which created barriers for disabled litigants.  Examples of these decisions include Board of Trustees of the University of Alabama v. Garrett (Rhenquist) in which Chief Justice Rhenquist's majority opinion found the Congress was defective in its abrogation of sovereign immunity in the ADA.  Another example is the use of the rational basis test for treatment of classifications  - a low bar, because government must merely have a rational reason for discrimination.

                What relief is there for victims of discrimination under Title II in the Federal Courts?  Most likely, given Garrett, it would be injunctive relief and reasonable attorney fees.


The Three G’s 

In my research I encountered three cases which bear on the matter at hand:

Griggs v. Duke Power Company (1971)-  The Supreme Court of the United States found disparate impact on African-American workers in employment testing under Title VII of the Civil Rights Act of 1964.

Garrett - SCOTUS found defective abrogation of sovereign immunity in the ADA as previously noted.  This means that seeking monetary damages under the ADA is probably a waste of time, unless the litigant can establish that the entity being sued is not subject to the 11th Amendment to the US Constitution. (Goldstein, Lowe, & Taylor, p. 3)

Gulino v. The Board of Education of the City of New York and the New York State Education Department – U.S. Court of Appeals for the 2nd Circuit: Disparate impact case involving testing of teachers in New York.  This is a contemporary case that has been playing out over the last 20 years.


Griggs v. Duke Power Company 

                Griggs is a classic SCOTUS decision hard in the wake of the halcyon days of Civil Rights.  This decision moved the needle on workplace racial discrimination.  The most famous line of the decision was penned by Chief Justice Burger, who wrote the unanimous decision:

“……but good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as "built-in headwinds" for minority groups and are unrelated to measuring job capability.” (Burger)

More to the point for the present matter is the last sentence of the decision:

"What Congress has commanded is that any tests used must measure the person for the job and not the person in the abstract." (Burger)

Implications of Griggs include that disparate impact is statutory under Title VII.  An entity does not have to intend to discriminate if the effect is discriminatory.  Secondly, employment tests must relate to essential job functions.

                How does one connect Griggs to the ADA?  As previously noted Civil Rights legislation builds on itself – the ADA is part of a larger encompassing body of law founded on the Civil Rights Act of 1964.  But a contemporary case is also instructive.  In Gulino the 2nd Circuit Court of Appeals found that the LAST test (similar to Praxis I/Core) had disparate impact on teachers of color in New York.  This is a case, like Griggs, under the aegis of the Civil Rights Act involving some 18,000 teachers of color, who the court found are entitled to back pay in addition to other remedies (Gulino v. The Board of Education of the City of New York and the New York State Education Department)

                Since the ADA is part of the same body of law, it is a question of applying the principles of Gulino and Griggs in a disability context.  A law review paper published in the Duke Law Journal in 2006 provides a mechanism to make that connection.

                "Disability, Disparate Impact, and Class Actions" by Michael Ashley Stein & Michael L. E. Waterstone proposes a concept of pan-disability as an analogue to pan-ethnicity.   Pan-ethnicity was a concept in early civil rights law which knit together ethnic groups for purposes of class action.  An example would be "Asian-Americans" a classification which could include Japanese, Korean, Chinese and other ethnicities with distinct cultures, histories and languages.  Stein and Waterstone propose a similar concept to join people with a variety of disabilities together for purposes of class actions under the ADA.  These pan-disability classifications could then be used to demonstrate disparate impact discrimination against the members of the class.

                The reason that this is a novel theory is that historically, disability discrimination lawsuits were individual rather than class action cases.  As noted above, the vast majority of licensing cases are people seeking individual relief or accommodations.  This history led the field to assume that class actions were not useful in disability cases.  Stein and Waterhouse contend that class actions had simply not been tried.

                What this means is that disparate impact disability class actions would provide a blank slate.   Since courts tend to be conservative and retrench from early civil rights advances over time, this blank slate would provide an opportunity to dial back the clock so to speak, and establish new case law without having to first navigate the thicket of retrenchment.  I believe this approach has the potential to make the Griggs-ADA connection for the Vermont teachers affected by the VSBPE rules cited above.


Action Steps 

                A legal theory of this sort leverages action.  A union grievance rep always tries to settle at the lowest possible step  - a conversation before filing the grievance, if possible.  The Stein/Waterstone theory shows where the win might be in litigation, analogous to binding interest arbitration in a grievance process.  Like arbitration, litigation pushes towards closure.  I've backwards designed from the legal theory in order to be able to achieve closure on the issue before ever considering the courts.  The steps as I see them would be 1) moral/political persuasion  2) an EEOC complaint 3) a class action lawsuit based on Stein/Waterstone law review paper asking for injunctive relief and reasonable court costs.  The goal in trying to see the win at the end is to create the leverage for a settlement at the lowest possible level.

                The persuasion task would be to argue that VSBPE Rule 5246.4 is illogical.  The phrase "safe to practice, ironically, is a phrase I learned doing consulting work for ETS via the Center for Teaching Quality.  In developing a proficiency based initial licensure test, ETS asked our panel to prioritize the Teachingworks "High-Leverage Teaching Practices" to be reflected in an ETS proficiency based licensing test (think EdTPA) in such a way to render an individual "safe to practice" should they pass the ETS exam.  I presume in using the term that the Praxis is similarly designed to establish general academic competence as an indicator of "safe to practice".  So the argument goes like this:

  • If an individual is “safe to practice” in one town they are safe to practice in all towns.
  • If an individual is not safe to practice in all towns, they are not safe to practice in any.
  • Therefore there is no compelling public interest in restricting licenses or discriminating against individuals with disabilities.
  • When Vermonters encounter discrimination we root it out – ours was the first state constitution to ban slavery. 

                A supporting argument concerns the stand alone issue in which the VSBPE abrogates its responsibility to be the grantor of testing accommodations by delegating that responsibility to ETS.  However, the responsibility for granting accommodations lies with the licensing board that requires the test.  In allowing ETS to make determinations on accommodations, the VSBPE takes responsibility for the actions of a private corporation not under its direct control and assumes that liability.  This means that the Board itself needs to sit in a quasi-judicial capacity granting accommodations before the test occurs, rather than granting discriminatory waivers after the test has been failed.  I am not sure this is a role for which either  the VSBPE or the Educator Quality Division of the Vermont Agency of Education has the capacity.  Let it be noted that as a private entity, ETS is subject to the provisions of Title III Sec. 12189. (Goldstein, Lowe, & Taylor, p. 3)


The mechanism for changing the rules is given in 3 V.S.A. § 806:

 § 806. Procedure to request adoption of rules or procedures

A person may submit a written request to an agency asking the agency to adopt, amend, or repeal a procedure or rule. Within 30 days of receiving the request, the agency shall initiate rule-making proceedings, shall adopt a procedure, or shall deny the request, giving its reasons in writing. 

This means it is not necessary to wait for the commencement of the annual rules making process for the VSBPE to correct the problem.  Note that important parts of 3 V.S.A. Chapter 25 are missing from the Vermont Education Lawbook.


Federal Administrative Action 

                Failing a decision by the VSBPE itself, the next step might be the filing of a complaint with the EEOC, (or a more appropriate Federal agency as determined by an attorney).


"Title II of the ADA extended the requirements of section 504 to all services, programs, and activities of State and local governments, not only those that receive Federal financial assistance. The House Committee on Education and Labor explained the enforcement provisions as follows:

 

It is the Committee's intent that administrative enforcement of section 202 of the legislation should closely parallel the Federal government's experience with section 504 of the Rehabilitation Act of 1973. The Attorney General should use section 504 enforcement procedures and the Department's coordination role under Executive Order 12250 as models for regulation in this area. 

 

The Committee envisions that the Department of Justice will identify appropriate Federal agencies to oversee compliance activities for State and local governments. As with section 504, these Federal agencies, including the Department of Justice, will receive, investigate, and where possible, resolve complaints of discrimination." (eCFR §35.164 F)

 

Litigation

The Code of Federal Regulations Title 28 Chapter 35 Subpart F states:

"If a Federal agency is unable to resolve a complaint by voluntary means, the major enforcement sanction for the Federal government will be referral of cases by these Federal agencies to the Department of Justice." (ECFR §35.164 F)

The complainant has timelines - 180 days from the act of discrimination to file a complaint but may still choose to file a private lawsuit, or file a lawsuit under state laws which afford greater protection than the ADA. (ECFR §35.169)

 

Conclusion

                There are multiple plausible pathways for legal action in the court system to litigate this issue.  The existence of plausible pathways provides leverage to achieve a settlement of the issue without recourse to the courts.

 

Sources

Americans with Disabilities Act of 1990,AS AMENDED with ADA Amendments Act of 2008. (2009). Retrieved March 12, 2016, from http://www.ada.gov/pubs/adastatute08.htm


Americans with Disabilities Act Questions and Answers. (n.d.). Retrieved April 3, 2016, from http://www.ada.gov/qandaeng.htm

U.S. Equal Employment Opportunity Commission, U.S. Department of Justice Civil Rights Division


Americans with Disabilities Act Title II Technical Assistance Manual. (n.d.). Retrieved April 3, 2016, from http://www.ada.gov/taman2.html


Burger, W. (1971). Griggs v. Duke Power Co. Retrieved from http://caselaw.findlaw.com/us-supreme-court/401/424.html

Text of SCOTUS decision.


Chanatry, L. (2007). Professional Licensing Issues: Title II of the ADA applied ... Retrieved April 13, 2016, from http://www.adasoutheast.org/ada/publications/legal/professional_licensing_disability_ADA_TitleII.doc


Compliance Manual. (n.d.). Retrieved April 13, 2016, from https://www.eeoc.gov/laws/guidance/compliance.cfm


Condos, J. C. (n.d.). Vermont Administrative Procedures Act. Retrieved April 29, 2016, from https://www.sec.state.vt.us/media/68687/VTAPA.pps


eCFR — Code of Federal Regulations. (n.d.). Retrieved April 03, 2016, from http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr


Goldstein, A. M., & Lowe, L., Taylor, B. C., (2011). Postsecondary And Licensing Under the ADA - adagreatlakes.com. Retrieved from http://adagreatlakes.com/Publications/Legal_Briefs/BriefNo016_POST_SECONDARY_EDUCATION_AND_LICENSING_UNDER_THE_ADA.pdf


Gulino v. The Board of Education of the City of New York and the New York State Education Department. (n.d.). Retrieved April 03, 2016, from http://ccrjustice.org/home/what-we-do/our-cases/gulino-v-board-education-city-new-york-and-new-york-state-education


High-Leverage Practices. (n.d.). Retrieved May 01, 2016, from http://www.teachingworks.org/work-of-teaching/high-leverage-practices

TeachingWorks, University of Michigan


Nettles, M. T., Scatton, L. H., Steinberg, J. H., & Tyler, L. L. (2011). Performance and Passing Rate Differences of African American and White Prospective Teachers on Praxis Examinations: A Joint Project of the National Education Association (NEA) and Educational Testing Service (ETS). Retrieved from http://www.ets.org/research/policy_research_reports/publications/report/2011/imwa


Rhenquist, W. (2001). BOARD OF TRUSTEES OF UNIV. OF ALA.V. GARRETT. Retrieved from https://www.law.cornell.edu/supct/html/99-1240.ZO.html

Text of SCOTUS decision.


Taggart, M. D. (2003). Title II of the Americans with Disabilities Act after Garrett: Defective Abrogation of Sovereign Immunity and Its Remedial Impact. California Law Review, 91(3), 827. doi:10.2307/3481378


Title II Highlights. (n.d.). Retrieved April 8, 2016, from http://www.ada.gov/t2hlt95.htm


Stein, M. A., & Waterstone, M. (2006). Disability, Disparate Impact, and Class Actions. Retrieved April 03, 2016, from http://scholarship.law.duke.edu/dlj/vol56/iss3/3/

Duke Law Journal Vol. 56:861


Tyler, L. (2011). Toward Increasing Teacher Diversity: Targeting Support and Intervention for Teacher Licensure Candidates, Educational Testing Service, 2011. Retrieved from http://eric.ed.gov/?id=ED517750


Vermont Education Lawbook. (2015). Montpelier, VT: Vermont School Boards Association.


Vermont Standards Board for Professional Educators (Dec. 26, 2014). Licensing Rules. Retrieved from http://education.vermont.gov/documents/educ_5100_licensing_regulations.pdf


Vermont Statutes Online Title 03 : Executive Chapter 25. (n.d.). Retrieved May 02, 2016, from http://legislature.vermont.gov/statutes/chapter/03/025


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15 min read
“sporadic medical anomaly,”

“sporadic medical anomaly,”

      Our club member DJ arrives at the Mental Health drop-in center with cat ears, a crooked smile and chats with the other clients on matters ranging from Pokemon to politics. She speaks in monologues, is shy about jokes and takes them personally, yet her quickness to help a seeing-impaired man to his chair is noted. They’re arm-in-arm and as she pulls back the chair for him, she only lets go when he’s seated, back upright and flush.

         “There you go!” She says. Her voice is light and chipper.

        If you tell DJ a joke, using any dry humor, she reacts with brows knit in confusion, tilting her head to the side. She’s a creative spirit though. Often, I spot her doodling well-rendered anime characters and scrawling along the pages of one of her many notebooks she carries in an old, stained backpack.

        “Oh no, I’m sorry!” DJ cries, with a blush and covers her mouth, “I hope you’re not mad at me.”

          And of course, we’re not. She just doesn’t realize this level of social subtlety. DJ is one of our favorite helpers, even if she misses social cues and lacks a filter. DJ is on the Autism Spectrum.

       It was once believed that people on the Autism spectrum “lack empathy”. This trait, or lack thereof,  was even considered part and parcel of the diagnosis itself, although, it isn't true. Even with the ample awareness and increased mental health education most of us get in 2020, there is still so much we don’t understand. Often an over-reliance is placed on medication, in all its different variations and cocktails.

        As a Recovery Specialist at a drop-in center, I not only work with people who have mental health and addiction issues, I have had a history of my own struggles. And my journey started long before a Bipolar diagnosis in my teens.

       I was born without a Thyroid gland, and while I have the good fortune of being able to take natural hormone replacement, my brain has always seemed a little different from other kids when I grew up. It showed in my impaired ability to read people, lack of fine motor skills and sensitivity to sounds, especially the loud ones. Some of these "impairments" have improved substantially over time, others - not so much.

        My mother once told me of a time in elementary school when I was found in the lunchroom, holding my hands to my ears, alone, in a corner. My cheeks were tear-stained, as if in desperation, I needed to hide form the sounds of that thunderous room.

        "It’s too loud, just too loud” was all I said, when my teacher asked.

        It wasn’t the first time and wouldn’t be the only. It was to such an extent, that it was determined I should have a separate lunch in a quieter area for the rest of my first grade year. While I don't have a diagnosis of Autism, doctors made it clear to my parents from a young age that I'm neurologically atypical, or, as I more commonly call it: Neurodivergent.

       CH is a phenomenon that happens one “in every 3500 live births”. It’s considered “sporadic medical anomaly,” in that experts still don’t know why it occurs at all.  Much like Autism, those of us born with no Thyroids, live with its overarching effects across the entire spectrum of our everyday lives. However, most people “can’t tell” I have a neurological impairment. It’s not obvious and people see the person I am, but not the journey I’ve taken to get here. 

         One significant conundrum I've noticed in researching this, is firstly, the total lack of information that exists out there, and dovetails right into its second issue: due to a lack of information, there is no community around this issue. This is a major disservice to individuals born with this, especially with ever-pervasive effect on neurological development, including, from my own experience, delayed motor skill issues, sensory sensitivities, impaired learning and psychiatric diagnoses. 

        Camouflaging is not as much of a problem. Usually it's the opposite. While I accept the ability to camouflage as a privilege in and of itself, if you're too good at it, your struggles become invisible. My perception of the world is easily waved off. 

          Despite the lack of awareness of this particular condition, I still review the literature and I’m gradually making it my mission to find more information. Even in the best study I found from 2015, there’s still much to be understood. According to the study, those of us with CH live with our parents longer compared with our peers, we’re more likely to have trouble in school or making friends, more likely to develop depression, anxiety and obesity. 

         My particular version of Neurodivergence deserves more recognition. We need recognition in the most basic sense, to tell the world we exist, to reach more people with CH and let them they’re not alone, build an empowering community where we can gather, speak to each other on our interests, and advocate for more research to be done. 

          My CH has been the main antecedent to my developing into a Neurodivergent individual. Since I can camouflage, I've always been able to navigate the neurotypical world, while not being of it. It's always been a double-edged sword. And I know I’m not the only one. Because I'm finally finding a voice to this experience, I aim to create a platform, a lighthouse beaming across the sea on a foggy night - the bat signal for other people born with CH, especially the ones who’ve lived off the beaten path of neurotypicality.

          We can appreciate that we have so many resources with which to draw upon, but there may be something we can learn from humans who perceive differently and try to bridge these differences for greater understanding.

        One day, DJ is off on her own in a dark corner, her tablet in hand. Her face winces with what could only sadness or consternation. When I plop down next to her on the couch, she tells me a story about her stepfather mocking her.

        “He told me I’m an ‘idiot’,” She sighs and puts her tablet on the coffee table, “I guess he’s right in a way, it was stupid of me to make that call. I should probably just shut up.” Her voice trails off.

        “Even if you did make a mistake,” I try to reason, “Does it really help to call yourself an ‘idiot'?  You are  human. You’re allowed to make mistakes.”

             DJ nods, thanks me and picks up her tablet again.

            Not long after, it's my lunch break.  I slink over to my supervisor's office and tell her I’m going to take a walk. When I step outside there's already a shrill hum of drills at a nearby construction site. I go in the opposite direction. I keep my hands in the pockets of my coat, willing myself not to cover my ears. Then, I remind myself that I don't have to force myself.

I remember that I'm human. 

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4 min read