Does the VT Praxis violate the ADA?

by Steve Owens

Up to 30% of students in our schools bring some sort of alternative neurology to the table. Structural discrimination means that many of these neurodiverse children will never have before them a similarly neurodiverse teacher.  In my experience, neurodiverse children do better in school in the presence of neurodiverse educators.  We bring an innate understanding of the challenges posed by the school environment, and a unique capacity to influence that environment for the better.  
At my current school, where I’ve been principal for nearly four years, I’m very proud of the kids who were chair throwers and elopers at their previous school, but who are now in their seats and available for instruction, in some cases for the first time in years.  I feel a silent bond with a number of these kids; I don’t spend that much time with them (they’re not in my office for behavior thank heavens!) but we sense one another’s presence and that is enough.
There are many barriers in the field of education to neurodiverse people who wish to teach.  A great deal of them are woven into the very cultural fabric of the profession.  For example, detailed planning, preparation and punctuality are highly valued, meaning that those with diversabilities in executive function may struggle to conform to expectations.  A person with non-conforming social pragmatics may be hounded out. 
Facility with language and numeracy, particularly as expressed through processing speed is also highly valued.  We systematically screen out neurodiverse people from becoming educators (among other things) through the use of timed tests throughout schooling.  The final blow in many cases is in the teacher licensing process itself, in the use of the Praxis Core tests for teacher licensing.  The balance of this article is an exploration of how this plays out in one state, Vermont.  My experience at the national level in the NEA indicates that the use of this test is discriminatory not just for neurodiverse people, but also for BIPOC.
Introduction I was appointed to the Vermont Standards Board for Professional Educators (VSBPE) on July 1, 2105.  The VSBPE is a state-wide gubernatorially appointed regulatory body that creates the body of regulations that animates statutes governing educator licensing.
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?   Taken together VSBPE rules concerning the role of Praxis Core in teacher licensing 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.
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.
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.
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.  VSBPE Rule 5246.4 is illogical.  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.
Epilogue
Many neurodiverse people are drawn into teaching specialties that allow their strengths to shine -music, art, phys ed, etc.  I was a music teacher for 25 years before becoming an administrator.  In these specialties, we often already cling to the margins of the profession.  To subject people, who have so much to offer to a large minority of our children, to a test that devalues the very core of their identity, and can hobble their professional advancement, is immoral.  And as I argued above, it is illegal.  It is time to end a practice which is damaging society.