Educational Testing, Students with Disabilities, and a Letter from the EEOC

Cross-Posted at Tales of the Angry Negro

2012 is here and not to be outdone by the ever-lengthening parade of Holiday foods, gift giving, and the lighting of candles, 2011 managed to pack in a few last minute surprises for us all. One of these gifts has come from the Equal Employment Opportunity Commission and is raising the ire of some vocal employment bloggers.

In December, the EEOC posted an informal discussion letter responding to a question from the State of Tennessee about students with learning disabilities taking Gateway tests or end-of-course assessments to receive a high school diploma. The informal discussion letter is a means that the EEOC uses to give guidance without making formal statements, reprimands or orders in essence allowing us to ask honest questions and decide on our owPencil and Standardized Testn to do the right thing. Issues related to these exit exams and their application to students with disabilities has had a history of contention and the EEOC rightly pointed the inquirer to the Department of Education. In an interesting point of clarification, the EEOC also included a reminder that any requirement or hiring including a test, certification or experience, must be related to the skills required to compete the task. (This would include credentials such as high school diplomas or advanced degrees.) So in essence if a person did not have a high school diploma and did not receive a position they may be able to seek support under the ADA.

According to the conservative blogosphere the EEOC is again coddling slackers and lay-abouts and telling them that rather than work to achieve they can simply sue employers that do not hire them. Now some members of the blogosphere are already beginning to yell about employer rights and the ability of any person who does not receive a job to be able to sue the employer for restitution. Some of the even more classy bloggers have gone as far as to write that EEOC is suggesting that being a slacker, stupid or just plain lazy” is equivalent to having a disability.

Though these contributors have proven that they have the capacity to read a five paragraph document and take it out of context, none of them have proven that they actually understand the implications of this guidance and why it may have come about.

This vocal contingent says that they are standing on a crossroads — a line between government mandating how much an individuals may earn and the free market system that our framers intended, and in this they are correct, but unfortunately they are not on the side of righteousness and American values. To understand why they are wrong we have to delve into why individuals with disabilities may not have a high school diploma in the first place.

For those Americans born after the mid-70s gateway tests,  €œexit-exams or end-of-course assessments are a mainstay of their secondary school experience. At one point during the Clinton Administration, passage of the Exit exam in some states not only determined if you were eligible for graduation from high school, but also if you were eligible to receive a driver's permit (if you were under 18).  These tests were created not only to gauge what or young people were learning but also address the students that were falling through the cracks, or in some cases, failing-up and being promoted out of age rather than academic achievement. Like any assessment or standardized test, these exams opened a Pandora's Box once data started being collected.

As students we understand that standardized testing is used to determine what we have learned over the course of the year. After 12 years of regular assessment, the average student is fully invested in the idea that standardized tests are required in order to graduate. The reality, however is that standardized tests are also tied to the Federal funding that a school can receive from the government. High scores generally get high funding. This secret of standardized tests gained quite a bit of publicity during the passage of No Child Left Behind Act in 2001. Though the NCLB legislation in no way created new policy for standardized testing, the controversy of NCLB brought a well-known practice to the forefront: In order to receive and maintain their funding schools will do whatever is necessary to maintain as high standardized test scores as possible.

The implications of this fact became very obvious in the first decade of the 21st Century. Schools that lacked the resources, or served a significant number of students were found to have been preparing students for testing rather than just basic learning. In some cases certain students were only taught how to pass the standardized test rather than focus on the greater intricacies of a quality education. NCLB had significantly upped the anty for schools on standardized testing schools that did not perform would not only be ineligible for funding, but could lose additional programs in arts and sports that were currently taking place at their schools.

Like many American's I have mixed feelings about what happened next. On one hand I could say that a unique mix of paternalism and genuine concern created an anomaly in the process whereby students with disabilities and the data related to their achievement were not to be included in the data for NCLB. On the other hand I could also identify this as the traditional behavior that has poisoned the well of inclusion of any minority or non-mainstream population in the United States a systematic disenfranchisement of certain groups of American citizens.

By allowing schools to not be responsible for the learning of individuals with disabilities we set a dangerous precedent. Not only does this let schools off the hook for serving a population it has found difficult to educate, it also created a feeder group in which to install any students deemed unteachable or unable to learn. Suddenly disability is merged into a group considered at-risk and suddenly that at-risk group has a significant number of Brown, Black, ELL and students with disabilities. In many school districts these at-risk students were removed from data contention entirely and instead of a diploma, offered a certificate of completion. Additional allowances were made for students that attended school but would never receive a high school diploma,  and before America had time to notice we had created an additional education system. In one system we prepared students to be valuable contributing members of society and in the other system we disenfranchised young people and decided that they would never have a future.

Who are these students who have certificates instead of diplomas, and what happens to a student with a certificate after they leave high school?

The point that the conservative bloggers get right is that the High School diploma has indeed served as the marker for basic workplace readiness in our country. Without one you are not eligible for work at most jobs in the country. Additionally you may even be barred from military service, and in some cases even enter food or factory service positions that have been traditionally set aside for citizens that have little to no education. And speaking of citizens you can forget working with them as well, because the jobs in our country that we leave to those without high school education are those that we have relegated to illegal and migrant worker populations. That's right without a high school diploma you have the work qualifications and ability for advancement of an undocumented worker.

The part the bloggers get wrong however is the fact that these individuals did not choose this fate. We are not discussing a group of people who decided that high school was not for them or made a decision to follow Phish around for the past decade. These are citizens that have completed their requirements with their peers, but have effectively been disenfranchised by the state. It used to be that if you graduated from high school you got a diploma and were then eligible to enter the workforce, however for many students with disabilities a high school diploma is not an option because of their participation in Special Education programs or use of accommodations on the exit exam. Because many students with disabilities have been forced to accept Certificates of Completion rather than Diplomas, they have now been rendered unhireable for most jobs. It is not due to laziness, a desire to be a slacker or not work, it is specifically because of disenfranchisement that took place before many of them were even eligible to vote.

As the EEOC mentions in the text:

Under the ADA, a qualification standard, test, or other selection criterion, such as a high school diploma requirement, that screens out an individual or a class of individuals on the basis of a disability must be job related for the position in question and consistent with business necessity. A qualification standard is job related and consistent with business necessity if it accurately measures the ability to perform the job's essential functions (i.e. its fundamental duties). Even where a challenged qualification standard, test, or other selection criterion is job related and consistent with business necessity, if it screens out an individual on the basis of disability, an employer must also demonstrate that the standard or criterion cannot be met, and the job cannot be performed, with a reasonable accommodation.

Thus, if an employer adopts a high school diploma requirement for a job, and that requirement screens out an individual who is unable to graduate because of a learning disability that meets the ADA's definition of disability, the employer may not apply the standard unless it can demonstrate that the diploma requirement is job related and consistent with business necessity. The employer will not be able to make this showing, for example, if the functions in question can easily be performed by someone who does not have a diploma.

Sad Graduate with DiplomaWithout this guidance, the average person could still re-enter the education system at any time and earn a GED whereas these young people have been told that though you completed high school and did your time, and passed your classes you still do not get to receive a diploma. Instead you get a certificate. A certificate that shows you passed and along with that certificate you get no credit for your education, little opportunity for advancement and a starting point significantly behind your similar aged peers. The suggested guidance from the EEOC is a last line of defense between our proud American tradition of everyone doing their share and  the creation of a state sanctioned underclass.

So what does this mean for employers?

Certain so-called employer advocates would have you believe that this is bad for employers and that employers would have to hire any person that applies to a position  — no matter what — and if they decline an applicant they could get sued. This is not the case. For one thing no matter how often we hear that the ADA is going to cause a barrage of lawsuits from able-bodied folk claiming ADA protection that still has not happened. If anything there still seems to be a huge number of Americans with Disabilities that were still hesitant to even admit their disability to themselves (and no, stupidity still does not count.) Secondly this guidance like all parts of the ADA is a This is actually a benefit for the employer community.  First it gives a greater pool of people from which an employer may hire. As a general no-brainer anything that increases the possible employee pool is great because it gives employers more opportunities to hire i.e. more clay means the ability to make more pots. In addition it means that employers have to actually hire people who are qualified to fill their positions. Rather than be held back by a traditional requirement, employers can then focus on the actual skills necessary to complete a job and hire based on that. Lastly, and this is perhaps the most important point — it provides employers with a choice — the option to hire whom they like based on their experiences and talent even if they have been failed by the educational system.

Imagine if all jobs were given to people that were qualified to do them rather than based on trends and perceptions. Then again if it came to sheer qualifications I may not be able to write this blog.

The Angry Negro is also able to read and misinterpret a five paragraph letter.  Patrick Cokley is a disability advocate based in Washington, DC. For more of his acerbic wit, visit his blog, Tales of the Angry Negro at