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The Advocacy Center for Persons with Disabilities, Inc., is committed to protecting the lawful rights of students with disabilities pursuant to their entitlement to a free appropriate public education in the most inclusive environment possible. We welcome the opportunity to proactively work with the Florida Department of Education. We trust that a collaborative relationship will ensue and may avoid any potential litigation.
A. Since 1975, the Individuals with Disabilities Education Act (IDEA) has mandated a free appropriate public education for all children who are identified under its provisions. In addition, the 1997 reauthorized IDEA included new provisions regarding assessments of all children in the general curriculum in regular classrooms, and the role of regular education teachers in the educational process.
B. By July 1, 1998, children with disabilities are to be “included in general state and districtwide assessment programs, with appropriate accommodations, where necessary,” with the proviso that some identified children with Individualized Educational Plans (IEPs) should not be included in such assessments. Instead, these students are to be assessed by “alternative assessments,” in effect by July 1, 2000. In other words, districts are now required to develop assessment measures for all students, either through the regular testing procedure with appropriate modifications for identified students, or through alternative assessments. [1]
C. Every student’s IEP must include a statement of any individual modifications in the administration of State or districtwide assessments of student achievement that are needed in order for the child to participate in such assessment; and, if the IEP team determines that the child will not participate in a particular State or districtwide assessment of student achievement (or part of such an assessment), a statement of why that assessment is not appropriate for that child; and how the child will be assessed. [2]
D. In order to provide for identified students without discriminating against them on the basis of disability, districts are required to make “reasonable accommodations,” when appropriate. Accommodations generally are defined as changes in a district’s program or in the way things are customarily done so that a student with a disability can have an equal opportunity to participate. The goal of reasonable accommodations is to provide identified students with an equal opportunity to participate. The goal is not to guarantee results or success, rather, it is to open the door for identified students.
E. Section 504 of the Rehabilitation Act of 1973 (Rehabilitation Act) provides that otherwise qualified persons shall not be discriminated against, solely by reason of their disability, by any program or activity that receives federal financial assistance. [3] The Rehabilitation Act further specifies that testing and evaluation in educational settings may not include tests which have a disproportionate, adverse effect on students with disabilities. [4]
F. The Americans with Disabilities Act [5] went into effect on January 26, 1992. The legislative history illustrates a congressional intent to ensure that persons with disabilities were not foreclosed from educational, professional, or trade opportunities because examinations were conducted at inaccessible sites or without accommodations. [6] Title II of the ADA prohibits discrimination in the offering of benefits, programs or services by state and local governments. [7]
The ADA requires examiners to guarantee that exams will be held in an accessible place and manner, or that alternative accessible arrangements are made. [8]Even when the examination is not directly administered by the covered entity, it must ensure that the examiner is in compliance with ADA guidelines. Consequently, there is now no doubt that agencies like the Florida Department of Education must comply.
G. The pertinent statutes clearly establish that examinations are one stage of a licensing or certification process, and that an individual should not be barred from attempting to pass that stage because she might be unable to meet other requirements of the process. [9] Likewise, an individual may not be denied admission to an examination on the basis of doubts about her ability to meet requirements that the examination is not designed to test.
A. History: Hendrick Hudson Dist. Bd. of Educ. v. Rowley. [10]
The U.S. Supreme Court articulated the standard for “appropriateness” of a student’s IEP. [11] Recognizing the issue as one of the statutory interpretation, the Court concluded that a child’s program is “appropriate” within the Act when the state has complied with the procedural requirements of the Act, and the IEP is “reasonably calculated to enable the child to receive educational benefits.” The following discussion of Rowley provides a summary of the procedural safeguards of the Act because the Rowley’s availed themselves of their right to hearings and review as provided by the Act. It is these procedures with are central to the Rowley test for “appropriateness.”
Amy Rowley was a public school student who was deaf. She was initially placed in a typical kindergarten classroom in order to assess Amy’s needs for supplemental services. At the end of a trial period, the school determined that Amy should remain in kindergarten, but be fitted with a hearing aid, which would amplify the voices of teachers and fellow students. Amy completed kindergarten successfully. Amy’s IEP for first grade proposed that Amy continue in a typical classroom, continue use of the hearing aid, and receive instruction from a tutor for the deaf for one hour each day and speech therapy for three hours each week. Amy’s parents agreed with most of the IEP, but requested that Amy be provided with a sign-language interpreter in all of her academic classes in lieu of some of the assistance proposed in the IEP.
When the school refused the Rowley’s request, the Rowleys brought their request before a hearing officer. The hearing officer found that the sign language interpreter was not necessary because “Amy was achieving educationally, academically, and emotionally.” On appeal, the decision of the hearing officer was affirmed by the State Commissioner of Education.
The Rowleys brought the case into federal district court claiming that the school’s IEP was not a “free appropriate public education” without a sign-language interpreter. The district court found that although Amy was performing better than the average child in her class, she was performing below her potential. This disparity between her actual and potential performance led the court to conclude that Amy’s program was not a “free appropriate public education” under the Act. The district court’s decision was affirmed by a divided Second Circuit. [12] The Supreme Court granted certiorari to interpret the “free appropriate public education” requirement of the Act and to establish the role of the state and federal courts in their review granted by the Act.
The Court recognized that the specific procedural safeguards of the Act were significant. Adequate compliance with the procedural aspects of the act assures Congress’ mandate regarding the substantive content of an IEP. The Court then concluded that the state would be in compliance with the Act when, (1) the state had complied with the procedures set forth in the act, and (2) the IEP developed as a result of following these procedures was “reasonably calculated to enable the child to receive educational benefits.”
B. 11th Circuit: Greer v. Rome City School District [13]
In 1991, the Eleventh Circuit used the test in Rowley to determine compliance with IDEA, but found that the Court did not address mainstreaming issues. The Greer court went further than Rowley and determined that the test for compliance with the IDEA mainstreaming requirement is whether education in a typical classroom, with the use of supplemental aids and services, can be achieved satisfactorily; if it cannot and the school intends to provide special education or remove the student from the typical classroom, the standard for review is whether the school has mainstreamed the student to the maximum extent appropriate. The Eleventh Circuit further clarifies that before a school district may conclude that the student should be educated outside the typical classroom, it must consider whether supplemental aids and services would permit satisfactory education in the school classroom. This consideration must include the whole range of supplemental aids and services, including resource rooms and itinerant instructions, for which it is obligated to make provision under IDEA. [14] This must occur prior to and during the development of the IEP. [15] The court found that prior to and during the development of the plaintiff’s IEP, there was no indication that, in developing the IEP, the school district considered the option of the student remaining in a typical class with the appropriate supplemental services. The Court held that the school district failed to comply with the mainstreaming requirement by failing to consider whether education in the typical classroom could be satisfactorily achieved with the use of supplemental aids and services. [16]
A. Early Definition of “Otherwise Qualified”: Southeastern Community College v. Davis. [17]
The first case to define “otherwise qualified” was the 1979 case of Southeastern Community College v. Davis, in which the United states Supreme Court held that an “otherwise qualified” person with a disability is one who is capable of meeting all of a program’s requirements despite her disability. [18] In Davis, the defendant, Southeastern Community College, denied the plaintiff, a student with deafness, admission to its nursing program. The Court reasoned that the student was not “otherwise qualified” under Section 504 because the ability to understand spoken words was necessary for the clinical part of the program. Thus, the Court established that where a student cannot meet a necessary requirement of a school’s program, that student is not “otherwise qualified” for Section 504 purposes. In Davis, the student had a severe hearing impairment. Although the use of a hearing aid greatly increased the student’s ability to hear sounds, she still depended heavily on her lip-reading ability to understand others. The school concluded that the student’s disability made it unsafe for her to participate in the clinical training program. Thus, Southeastern denied her admission to its nursing program.
Upon reviewing the plaintiff’s Section 504 claims in Davis, the court agreed with Southeastern’s determination that the student was not qualified for the nursing program because her disability made her participation in the program unsafe. In making this determination, the Court defined an “otherwise qualified” person as one who is able to meet all of a program’s academic requirements despite her disability. Thus, because the student was unable to meet satisfactory the nursing program’s requirements, the Davis Court held that she was not “otherwise qualified” under Section 504, and consequently, she had no discrimination claim against the school. Although the Court did determine that Southeastern’s requirements were essential to its nursing program, it reasoned that if the requirements had not been essential, and if reasonable modifications would have enabled Davis to complete the program successfully, the school’s refusal to make reasonable modifications would have violated section 504. Furthermore, the Davis Court noted that situations might arise in which insistence on a particular program requirement might discriminate against a student with a disability in violation of Section 504, and that the identification of those instances was an important responsibility of the school. Also, it is important to note, the Davis Court did not examine what may constitute reasonable accommodations under Section 504.
Following Davis, courts began to recognize that a determination of whether a student with a disability is “otherwise qualified” necessarily involves an inquiry into reasonable accommodations. For example, in the 1988 case of Doherty v. Southern College of Optometry, [19] the United States Court of Appeals for the Sixth Circuit held that an “otherwise qualified” person is one who with the aid of reasonable modifications by the school, meets the required standards of the school’s program. The Sixth Circuit announced that it could no longer literally accept the Davis interpretation of “otherwise qualified” that a student with a disability must be able to meet all of a school’s requirements despite the disability. The Doherty court reasoned that under Davis, only those who could fulfill a program’s requirements without any reasonable accommodations were “otherwise qualified,” and concluded that this outcome was paradoxical. Thus, the Doherty court established that in determining whether a student is “otherwise qualified” for Section 504 purposes, a court must examine whether reasonable accommodations exist that would enable the student to meet a program’s requirements. Subsequent cases, bolstered by this holding, created the doctrine requiring that where the provision of reasonable accommodations will enable a student to meet the requirements of a program, that student is “otherwise qualified” under Section 504.
For example, the 1991 case of Wynne v. Tufts University School of Medicine, [20] the United States Court of Appeals for the First Circuit also refused to adhere strictly to the doctrine of academic deference. In Wynne, the court held that a factual dispute remained concerning whether a dyslexic medical student was “otherwise qualified” for medical school under Section 504 even though the defendant medical school had made an academic decision that the student was not qualified for its program of study. In support of its holding, the Wynne court reasoned that Section 504 requires courts to examine a school’s academic decisions to determine if they amount to discrimination. Thus, the Wynne court established that a court must not merely defer to a school’s academic decisions in Section 504 claims.
A testing agency is required to establish a simple process for making accommodations available to persons with disabilities. A student must follow whichever procedures are specified at her school or in an examination’s registration materials to ensure accommodation on the test day. Examiners are required to provide adequate notice to test registrants of available accommodations, and to provide those accommodations when requested and deemed appropriate. Because many personnel are not trained to evaluate appropriateness of accommodation, the testing entity should consult with the student requiring accommodation, and agree on accommodations, jointly.
A. Testing agencies are required to pay for any necessary modifications, accommodations, or auxiliary aids. [21] Thee may be no additional cost assessed to the test-taker for accommodations. However, because most accommodations are inexpensive, agencies should not be unduly burdened by costs.
B. The courts have required schools to provide interpreters. [22] The Department of Education and the Eleventh Circuit have interpreted the Section 504 regulations in such a way as to prohibit schools from denying accommodations to those who cannot demonstrate financial need. [23]
A. The same accommodations may be used by individuals with different disabilities, and individuals with the same disability may use different accommodations. Creativity and flexibility are critical. The idea is to allow students as much independence as possible; to provide them with accommodations that allow them to be tested according to their abilities just as their peers without disabilities are. The general practice should be that all life-style accommodations which have been used to compensate for one’s disability and which have become accepted practice for an individual in prior educational programs should be considered the most appropriate accommodations for testing.
B. Architecturally Accessible Testing Site.
Being able to “get in the door” is often the first concern for public accommodations; then, getting to the testing room, restrooms, and break rooms are also concerns. Examiners must be proactive about informing students where and how accommodations are made.
C. Modified Test Presentation/Response Format
1. Persons with visual disabilities have obvious needs in a testing situation such as requiring tests printed in braille or large print. Students with learning disabilities often require more creativity for accommodations due to varied needs and ability levels. Personal assistance with reading questions [24] and recording answers are accommodations which may be necessary for individuals, particularly with objective tests. Because students are entitled to have assistants who are qualified to perform the task at hand, testers should ensure that assistants for technical or otherwise specialized exams are able to represent the exam questions competently. In today’s world, there are options available with assistive technology that will provide adequate accommodation for some test takers, which will use less of the tester’s time, and fewer human resources. Once such suggestion is to audio tape [25] an examination in advance so that the test taker with disabilities has the option of listening and replaying, just as students without disabilities re-read.
2. Similarly, scribes can be replaced with dictaphones, reading machines or word processors. For objective tests, some students with learning disabilities are requesting more independence by being allowed to mark their answers on their test sheets rather than the “bubble sheets”. The tester or proctor then transfers those answers to a computer sheet.
3. Sign language interpreters for people with hearing-impairments [26] are frequently requested accommodations.
D. Assistive Technology
The provision of assistive technology devices and services which may include augmentative communication devices, calculators, modification of writing instruments or of physical surroundings may be necessary accommodations for students with disabilities.
E. Extended time to complete examinations
Many examinees have found that to use their additional time in the same session is too exhausting so they have been further accommodated in the ability to choose to spread the total number of hours allowed over an additional number of days.
For some people, simply having a time constraint on an exam makes its results unreliable. Some students may therefore only be deemed adequately accommodated when receiving untimed tests.
F. Alternative Locations
1. There are times when accommodations can best be provided somewhere other than at a standard location. For persons with specific learning disabilities or psychological disabilities who are distracted by extraneous noise, can benefit from a “distraction free space.” For example, visual and noise distraction can be minimized by sequestering a test-taker in her own separate room without phones, street noise, windows, other test-takers, or movement.
2. Others who benefit from having their own testing room are those who speak words aloud, or are being read to. Some students with learning disabilities best process information when they can speak it aloud.
G. Test Schedule Variation
Some examinees can document that because of medication or metabolism there are only certain hours of the day during which they can be tested accurately. These test takers can be accommodated by simply shifting the time of the exam and allowing for some flexibility.
H. Alternate Versions of an Exam
1. Because tests that have a disproportionate, adverse effect on students with disabilities are illegal, schools must modify their requirements to ensure nondiscrimination. [27] In order to avoid testing and admissions criteria that have a disproportionate, adverse impact on people with disabilities, testers must ensure that test results reflect abilities, not disabilities and then validate the testing procedure. [28]
2. Alternative test versions can solve these problems. The alternatives include: braille, large print, audio tape, oral rather than written, written rather than oral, typed, essay rather than “objective” multiple choice, and multiple choice rather than oral or essay. As is obvious, making accommodations is potentially troubling for examiners who are concerned about maintaining the integrity of their exam.
A. The alternative assessment is designed for only those students with disabilities who are unable to participate in the general large-scale assessment used for accountability purposes by a district or state. The alternate assessment provides a mechanism for students with even the most severe disabilities to be included in the accountability system. The following issues need to be resolved before the alternative assessments are provided: who will be eligible for the alternative assessment; what should be assessed; and how should the alternate assessment be integrated into the accountability system.
B. Recommendations
1. Define the purpose of the alternate assessment system and who qualifies to participate in it.
2. Identify the common core of learning for the alternate assessment
3. Develop participation guidelines for the alternate assessment system, implementing any necessary accommodations contained within the student’s IEP or Section 504 Plan.
4. Determine how results will be aggregated.
5. Integrate results from the alternate assessment with results from the general assessment.
The American civil rights movement of the 1960’s formed the basis for the current movement to integrate students with disabilities into typical classrooms providing the foundation for many laws that mandate equal access to education. An integrated educational environment, based on an appropriate IEP or Section 504 plan, must foster developmental, academic, and social growth in such a way that each student with disabilities can, within her individual capacity, become an independent and productive citizen. Each student with a disability, to the maximum extent possible must be accommodated with adequate supports and services, during each phase of their academic experience.
[1] 20 U.S.C. § 1412 (a)(17).
[2] 20 U.S.C. § 1414 (d).
[3] The Rehabilitation Act of 1973, 29 U.S. C. § 794.
[4] 45 C.F. R. § 84.42 (b)(2).
[5] Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327 (1990) [hereinafter ADA].
[6] ADA, supra note 6 at 68; House Report No. 101-485 (III) at 69.
[7] See 28 C.F.R. § 35.130 (a) “No qualified individuals with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity.”
[8] 28 C.F.R. § 36.309.
[9] 56 F.R. at 35573.
[10] Hendrick Hudson Dist. Bd. Of Educ v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L,Ed.2d 699 (1982).
[11] See 20 U.S.C. § 1412 (a)(1) (a State must demonstrate that it “has in effect a policy that assures that all handicapped children the right to a free appropriate public education”).
[12] Rowley v. Hendrick Hudson Cent. Sch. Dist., 632 F. 2d 945 (2d Cir. 1980).
[13] Greer v. Rome City Scho. Dist., 950 F. 2d. 688 (11th Cir. 1991).
[14] 20 U.S.C. §§ 1400-1485, 1412 (a)(5).
[15] Id.
[16] Greer, 950 F. 2d at 699.
[17] Southeastern Community College v. Davis, 442 U.. 397, 99 S. Ct. 2361, 60 L.Ed.2d 980, (1979).
[18] Id., 442 U.S. at 406, 99 S. Ct. at 2367.
[19] Doherty v. Southern College of Optometry, 862 F. 2d 570 (6th Cir. 1988).
[20] Wynne v. Tufts Univ. School of Med., 932 F. 2d 19 (1st Cir. 1991).
[21] 28 C.F.R. 35.130 (f): “A public entity may not place a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the costs of measures, such as the provision of auxiliary aids or program accessibility, that are required to provide the individual or group with the most nondiscriminatory treatment required by the Act or this part.”
[22] United States v. Board of Trustees of the Univ. of Ala., 908 F. 2d 740 (11th Cir. 1990); Camenisch v. University of Texas, 616 F. 2d 127 (5th Cir. 1980), vacated and remanded on other grounds, 451 U.S. 390 (1981); Crawford v. University of North Carolina, 440 F. Supp. 1047 (M.D.N.C. 1977); Barnes v. Converse College, 436 F. Supp. 635 (D.S.C. 1977).
[23] United States v. Board of Trustees for the Univ. of Ala., 908 F. 2d 740 (11th Cir. 1990).
[24] 45 C.F.R. § 84.44 (d)(2) (1977).
[25] Id.
[26] Id.
[27] Id.
[28] See 34 C.F.R. § 104.42.
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