by Steve Owens
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:
(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.
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.
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:
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)
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)
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.
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