by Doug and Peggy Elliott and Dan Sutherland
From the Editor: Over five years ago now Doug Elliott, already an experienced social worker, was required to take the test to become a licensed social worker after he moved to Iowa. He was forced to use an untrained, inept reader assigned to work with him by the testing authority. Doug was outraged at the injustice of the testing authority's decision and behavior, and since then he and his wife, NFB Second Vice President Peggy Elliott, have been pursuing redress in the case the Department of Justice brought on Doug's behalf against the testing authority. They have made significant progress even though one of the parties to the settlement agreement has now announced that they have no intention of complying with some of the provisions. The Elliotts reported all of this to the National Association of Blind Students at its January 29 seminar in Washington, D.C. Their report began with Doug's introduction of Dan Sutherland, the Department of Justice lawyer who has been working on the case. Mr. Sutherland then described what has happened in the case, and Peggy Elliott discussed what still needs to be done. This is what they said:
[PHOTO/CAPTION: Doug Elliott]
Doug Elliott: The reason I am up here to introduce the next speaker is that in 1994 I moved to Iowa to marry the Second Vice President. At that time I was a social worker in Nevada and the President of the National Federation of the Blind of Nevada. I was a licensed clinical social worker working in a hospital. I had worked in hospitals for over twenty years. Through most of that time I had had some kind of license or had been credentialed and did pretty well on my evaluations. I came to Iowa, and they said, "But it doesn't transfer because you were grandfathered in."
I said, "Yes, but I helped develop the test out there."
They said, "Well, you are in Iowa now, and you are going to take the test." Because the AASSWB (American Association of State Social Work Boards), the organization nationally that provides the licensure test for social workers insisted on it, I had to take the test. I brought a reader with me who was capable of reading intelligently and assumed there would be no problem. They were supposed to provide a reader, but when I got there they hadn't arranged for one.
So I used their so-called reader, who wasn't really a reader; she was just there to help out. She announced that she was exhausted and not very good at reading. I failed that test.
Since then I have passed the test, but I went back home and thought about this experience. Testing affects all of us. It's going to affect you if it hasn't already done so. When you go into your professions or even as students, testing is going to affect you. I wanted to do something so that other people don't fail these tests simply because they have to train their readers through the whole testing process.
I hired myself a good lawyer--the Second Vice President of the National Federation of the Blind--and she drew up a petition and sent it off to a number of places. One of the places it landed was the Department of Justice. We had contact with a lawyer there. His name was Dan Sutherland. We talked to Dan a lot about this case. Originally he was like a lot of sighted people who tried to help us. They want very much to help, but most of the help they want to give isn't constructive. Dan was sort of like that, except that he was prepared to listen. Not all sighted people want to listen. This, by the way, is not a characteristic limited to sighted people; some blind people want to help and don't want to listen either.
Dan started listening to our arguments on readers and why we thought we should be able to supply our own readers when we take tests. Dan eventually came around to our way of thinking. Not all of his bosses did, but he did. I think he tried very hard to get us what we wanted. He didn't get it all; he got some of it. Peggy says that I didn't talk to him with as much indignation about the situation as perhaps I should have. But we did win a part of the case. The AASSWB hired a lawyer who is a complete--well I can't say it in this room. But anyway he is. He fought with us. When we settled, he was upset about the press release that said I had won the case. So he said, "Well then, he's not going to get any money." They refused to pay.
Anyway, Dan is still working faithfully on our case, and he wanted to come and talk with you. We are happy to have him with us today to talk about testing and what the Department of Justice has been doing with it. We think we have made some clear breakthroughs; we didn't get everything, but we did get a lot. I give you Dan Sutherland.
Dan Sutherland: Thank you, Doug. This is a real treat for me. I didn't know that Doug was going to give a little introduction beforehand. He has laid the ground for us. I came to this case, as he said, with no experience at all. I knew absolutely nothing about the subject. To me that was a real positive. I didn't just think I didn't know anything. I knew I didn't know anything at all, so I tried to learn as much as I could and talk to as many people as I could. Peggy sent me several things that she had written, and I talked to Scott LaBarre a few times. But to tell you how new I was to all of this, I believe that I still know only three people in the world who are members of the National Federation of the Blind: Peggy, Doug, and Scott LaBarre by phone. So I was brand new to the whole thing.
I want to tell you a little bit about this case and ask you some questions about what this might mean to you. Then, as I understand it, Peggy is going to stand up and criticize what the Department of Justice did, which is good. Let me tell you briefly who I am so you have a context. I am an attorney in the United States Department of Justice. The Department of Justice has different groups. There's an anti-trust group, a civil rights group, an environmental group; and I'm in the civil rights group. The civil rights group, of course, has more bureaucracy--other groups within it. Some people do education cases. Some do employment, and others do fair housing. I'm in the group called the Disability Rights Section. We handle cases under the Americans with Disabilities Act.
What happens for me is that I get a file. It will be a letter that somebody has written complaining about something that they feel is a violation of the Americans with Disabilities Act. My job is to go investigate that, find out the facts, and if we figure out that the facts do present a violation of the federal law, then we would try to work out a settlement or file a lawsuit about it. The complaints we get come from all sorts of disabilities. I spent the last couple of years dealing with people with dyslexia and other learning disabilities. I've had this case, and I'm dealing with a big case in a large city dealing with people who are arrested or incarcerated and have hearing impairments, and how they interact with police officers.
I'm constantly dealing with things I know nothing about. That's good, because I just ask, and I'm not bringing to it a pre-set idea of what the right answer should be.
I have been asked to tell you a little bit about this case that I hope you will find interesting. I want to engage you a little bit about the level of your interest. This is a large group, so I don't think we can talk one-to-one, but maybe we could do a show of hands.
How many of you have had to take a standardized test? Almost everybody here. How many of you are in college now? [large number of aye's] How many are in graduate school now? [smaller response] Okay, so most of you are in college now. Are any of you high school students? [scattered response] Okay, a few. So you are a little bit early for the standardized test? [protests] No, already taking them. How many of you, when you have had to take a standardized test, have wanted to use a reader? [a good number of yeses] How many of you have been told you could not bring your own reader but that the agency would give you a reader? [about the same response] That's a common experience. How many of you have been able to supply your own reader? [perhaps three or four ayes] How many of you have found that the reader who was provided to you was fine, did a good job? [first dead silence and then a burst of laughter] Speak up now. [more laughter] Well, this has been very educational.
We may need you to be expert witnesses. That was one of the questions, and we clearly have a lot of them here. Doug and Peggy wrote a letter to us about this case, and it presented an issue that we have not dealt with before. The only two cases I am aware of that have been in the courts are the one that we have handled and the one that Scott handled with the LSAT.
So if you have problems with readers, if you are being forced to use a reader for a standardized test and the reader is not adequate for whatever reason, I really wish you would tell somebody. I will give you my phone number. Call me, or talk with Peggy, and she will call me. We would like to follow up on it. I will give you my phone now, and I'll give it to you later. My phone number is (202) 616-5540. My name again is Dan Sutherland. Feel free to call me anytime you would like. As I said, you can call Peggy, Doug, or Scott, and they will get the information to me.
Let me give you a quick description of the case; otherwise you won't know the background as well as we would want you to. Doug had been a social worker. He moved to a new state, and that state required him to take a licensure examination. Whether they should have or not, I don't know. He mailed in his application, and he said that he would need a reader and that he would provide his own reader. Within a month or so he talked with them over the telephone, and they said, "Sorry, you can't provide your own reader; we'll provide one for you." Well, he wasn't really sure if that was going to work out, so the day of the exam he brought his own reader. But as he said, they followed through on their policy, which is that you can't provide your own reader.
The reason they have this policy is that of course you are going to cheat. You'll have worked out some sort of elaborate signaling system so that the reader will be able to tell you the answers when you don't know them. Right? That is the typical reason that you have been given, isn't it? One thing that, I guess, Doug and Peggy did that was really interesting was that they also sent their letter to the American Psychological Association, which is responsible for setting industry standards on testing. The APA wrote a letter (the APA president and a couple of other people signed that letter) saying that whole idea is stupid. There is no problem of test security in allowing somebody to provide their own reader. That was significant, and it's a letter they have on file if you need to use it anywhere.
In any case the only reader the AASSWB had available for Doug to use that day was one of the college students who were there to sign people in. She was just sitting at the table. Nobody had told her anything about reading. She had never read for someone before, and she knew nothing about this examination. She didn't know anything about social work. She didn't know anything about the context of the exam. Doug and she had no time to work together in advance to establish any familiarity with one another.
They sat down to take the exam, and she stumbled over technical words as she read the exam to him. It was the first time she had done it; she wasn't familiar with it. She started writing the answers in the wrong boxes, so for the last hour or so of the exam, Doug could hear her erasing a lot. As he was thinking, she was erasing, going back and trying to get the answers put in the right boxes. She also found parts of the exam embarrassing because it was a social work exam, and there were sexual things on the exam that a social worker has to counsel somebody on in private. She needed to read those words and concepts to him. She didn't know him; she was just a college student.
Anyway, the whole thing was a disaster. Well, not to the American Association of State Social Work Boards: they didn't think anything was a problem at all. Doug and Peggy immediately complained to the American Association of State Social Work Boards and also eventually followed up with us. Doug eventually, as he said, passed the examination, but that doesn't solve the problem. You know you have a standardized test to take, and in his case it wasn't to get into college. It was to practice his profession. He could not practice his profession without passing the examination.
Then the question became, "What do we do with that?" It was easy for us to decide that this was a violation of the Americans with Disabilities Act because the law requires that testing agencies must provide what is called a qualified reader. Now Congress did not define a qualified reader. There is nothing anywhere that defines what a qualified reader is. So in this case we had to take a stab at what that means. This is certainly a case where we could have filed suit, but we tried to work out a settlement because, if you settle a case, you get a resolution of it two or three years in advance of when you would get a decision. Plus you never really know, when you go into court, what is going to happen. If you can work out a settlement, great.
We worked out a settlement and signed a settlement agreement. I just want to tell you quickly what the American Association of State Social Work Boards has now agreed to do. The main limitation--I think this is what Peggy wants to talk about--the main limitation is that we could not get them to agree that the Americans with Disabilities Act requires that they must allow you to provide your own reader. In other words, the rule, policy, position, principle established by this settlement is that they can either allow you to provide your own reader or, if they require you to take their reader, they've got to make sure that person meets certain criteria and standards.
The effect of this is going to be that a lot of the testing agencies are just going to allow you to provide your own reader because it is too much trouble to go through the things that they have to go through. One of the two lawyers whom we were dealing with (there were two agencies involved in this case: the social workers and a testing organization that administers the tests for them). Just in the last week or so, before we signed the agreement, which we had been negotiating for months, one of the lawyers called and said, "Do we have to provide a reader, or can we just let them supply their own reader?" He said, "Can we make it a little more clear in the document to let them supply their own reader?"
I said, "Sure." You see once he sat down with his clients and started to show them what they were going to have to do in order to provide what the law calls a qualified reader, they decided it would be a lot easier for the test-taker to provide his or her own reader.
One of our jobs is to try to get this Department of Justice policy distributed throughout the testing industry, but you are the ones actually dealing with these testing entities, so you need to spread the word too. When you are in this situation, you need to know that you have rights and that there is a Justice Department policy on this. It's on the Internet. Anyone can read it. You've got my phone number. Peggy knows about it. Scott knows about it. So maybe we can work together to spread the word a little.
I'll take two minutes to tell you what they agreed to do in the future about a reader. We said that, if they're going to require you to take their reader, the reader they supply must be proficient in reading, somebody who can really do it--not just somebody they picked off the line and told to go start reading. Doing this job is not that easy. We said they can demonstrate the reader's proficiency in one of three ways. One way is to allow test-takers to bring their own readers. If the person brought is not proficient, it's the test-taker's fault, not the agency's.
The second way is that they can provide somebody who is unfamiliar to the test-taker, somebody he or she hasn't worked with before but who has read tests aloud before. At least the test-taker will then have someone who has experience in reading.
The third way you can prove someone is proficient is that, although the person may never have read tests before, the testing authority can invest the time to train him or her. You have to spend hours with the reader. Have him or her read an article on what it takes to be a reader. Peggy has written a couple of articles on what it takes to be a reader, and we gave those articles to the AASSWB. The reader also needs to practice reading this examination. The reader needs to sit for hours with the test manager beforehand and practice. These solutions may not get blind test-takers to where you want to be in having a reader as proficient as you want, but at least you've got somebody who isn't just picked off the line. And besides, all this preparation makes it harder for the test agency. They are more likely to be happy to have you pick your own person.
The first thing we said to the agency is that, if you are going to supply a reader, you have to make sure it is somebody who has some basic ability to read and has done it before. The second thing we said is that you have to pick somebody familiar with this examination. On the social work examination that Doug took, there were a lot of technical terms that you and I don't know--medications and other things that we cannot even pronounce. So you have to have somebody who is familiar with that examination. The reader also has to know what the rules are, how long the test is, when the breaks are, things like that.
The third area we discussed is that, if you are going to supply a reader, you've got to have him or her work with the test-taker in advance so they can establish some familiarity. If you believe the test-taker will bring a friend and they may cheat, you can choose the reader, but then you must work with that person. This agreement says that the reader you choose and the test-taker have to work together for an unlimited period of time until the test-taker feels comfortable. The testing agency has to pay for this training. It's not the blind person's bill.
Their gamble was that the required training would not be particularly hard, that the two would be able to establish familiarity quickly. In that case it's not going to be much money out of the testing agency's pocket. On your side maybe you would establish familiarity in an hour or so of practicing, but maybe it would take you a longer period of time. Under this agreement, if you are taking the social work test, they can't object. They have to provide the time for you to establish familiarity. There is also provision in the agreement that, if after you begin working with a reader, you find genuine incompatibility, you can insist on being given another reader.
Under this agreement the AASSWB has to train its staff. They have to send a letter to every state agency that licenses social workers. All fifty states have to have a copy of it. They have to publicize it. Supposedly they have to put this information in their materials so that people like you can tell what your options are. They also had to compensate Doug for the time he lost preparing for that exam that he failed because of an incompetent reader. I can tell you, though, he did not make a million dollars from this agreement.
I'm going to leave it at that and let Peggy pick it up from there, and then have some time for questions and answers.
[PHOTO/CAPTION: Peggy Elliott]
Peggy Elliott: I want to start by assuring you that the story isn't over. One of the parties to this complaint has complied, as far as we know, with all of the terms, including paying Doug. The other has not. Their failure to comply was announced not only to Dan but also in the newspapers that covered Doug's case. The lawyer wrote letters to a lot of these newspapers, including our own Des Moines Register, and said that they had no intention of complying. He said that they had no need to comply because, in effect, they were already doing the right thing.
The Department of Justice has known since the end of October that there was no intention to comply with at least the financial aspect of the settlement and possibly with other things as well. Dan is very aware of this and has recommended to the people he works for what he thinks should take place. He hasn't told me what the recommendation is, but I think I can pretty well guess what it would be. The option that comes to mind would be an enforcement action in a court of law. Dan has made his recommendation, and his supervisors have not yet seen fit to respond either yea or nay.
So we still have the issue of whether or not the agreement you have just heard described is going to be enforced with regard to both the financial payment and the other terms. The reason I emphasize the other terms is that the lawyer for the American Association of State Social Work Boards has proclaimed to the world that this settlement didn't require them to make any changes at all, that they were already complying with the law and in fact were accommodating blind people well before the Americans with Disabilities Act, so they didn't have to do anything. They just signed the agreement to be nice to the Department of Justice. We will see if that continues to be their position as time goes along. Basically the people who did what they did to Doug are now thumbing their noses, not only at Doug and blind people in general, but also at the Department of Justice. We will see if the DOJ ultimately likes that or not.
I want to talk for a few minutes about the issues that go beyond Doug's case and what we need to do. In order to do that, I need to tell you about the snail. A man went to his door one day because the doorbell had rung, but no one was there. He happened to look down and saw a snail on the mat. In disgust he flicked it into the bushes. Five years later the doorbell rang again with no one there. Again he looked down, but before he could do anything to the snail standing there, the snail said, "What was that all about?" Keep the snail in mind.
We are talking about the regulations that implement the Americans with Disabilities Act under title II and III. Title II is the set of provisions that govern state and local government and their treatment of disabled people. Title III governs private entities. Often you are dealing with both, as in Doug's case. He was dealing with a social work board that was a State of Iowa entity and the American Association of State Social Work Boards, which is a private trade group. One was part of state government, and the other was a private group. The ADA regulations are slightly different under these two titles. You need to know this so that you know you can ignore it. Title II refers to the disabled person's preference in reasonable accommodation, and title III does not, though it does require reasonable accommodation. Under the regulations and the law you have the right to reasonable accommodation. Moreover, under the section about testing, it mentions that you have a right to a qualified reader.
As you would suspect, Dan and we pulled and hauled back and forth on this question of a qualified reader. Aside from Doug's not wanting another blind person to have to go through his experience in the future, we believed that the language should define a qualified reader as the reader of your choice: there is no pool of qualified readers; the only one is the one you bring with you. Ultimately the Department of Justice decided not to implement its regulation to provide that the qualified reader is the reader of our choice. They chose to implement the regulation to give the authority to choose to the testing organization rather than us. Personally, I think that the Department of Justice showed a lack of backbone in this decision. I don't think it was Dan; we've had a number of conversations about this, and I think that the refusal to give blind people the choice was a departmental failure of nerve based first of all on lack of understanding.
Most people think that a qualified reader for the blind is like a certified interpreter for the deaf. It's a person who helps the disabled person, and you can go out and draw on a pool of them. Can anyone in this room define a qualified reader? A qualified reader for me is not a qualified reader for Shawn. One that suits Shawn will not suit Dr. Maurer. Each of us uses readers differently. The term "qualified reader" is just words that somebody grabbed out of the air and threw into the regulation, but it doesn't mean any one thing. Readers are personal. We train our readers individually. There is no such thing as the qualified reader which the law guarantees to us. Therefore the only qualified reader is the person you obtain yourself. That's my position and that of the National Federation of the Blind. In a minute I will describe the way we are going to give the Department of Justice the opportunity to take that same position.
Remember that one of the things that happens in cases like this is an overemphasis on test security. It isn't that they think we are cheaters but that we have the potential of cheating if we use our own readers. That is what they said to Doug: you would cheat if you used your own reader. That's preposterous; let them proctor us--assign someone to sit in the room and watch for those secret hand signals and whispered commands. Because most of us have taken standardized tests, I think we are all familiar with this extreme sensitivity to test security.
The point I am making here is that the effect of the Americans with Disabilities Act has been to make things worse for blind people. Before 1990 and the appearance of this term "qualified reader," many of us were able to talk our way into the use of the reader of our choice. There wasn't a national standard or rule, and mostly we brought our own readers and took the tests. As in many other situations, the effect of the ADA on testing has been to instruct someone other than the blind person to take care of us, which unfortunately includes providing the reader. I have told Dan, and I will tell you: until such time as we have a bright-line test--a clear and unequivocal test--for identifying a qualified reader as the reader the blind person brings with him or her, we will continue to have the kind of trouble that Doug had.
Before I go on to my proposed solution, I want to ask Dan a question. Dan, if I have the same experience that Doug had with an unqualified reader but I pass the test, do I still have a complaint?
"Yes, you certainly have a complaint; the damages you might get just wouldn't be as high."
Do you hear that? You have a case even if you pass the test. Now listen to me about the other problem that is coming because especially you high school students are going to run into this problem. We are beginning to grapple with the question of who gets to choose the method by which the blind person will take a test. At this time the GED test does not allow a blind person to use a reader. There doesn't seem to be any reason for this; it just is the case. I hope to find out the reason sometime this year. I hope I'm not speaking out of school, but Dan told me on the phone earlier that he would love to have the case. I told him that, if the NFB doesn't manage to resolve the situation, we just might let him help us.
The other situation that is now arising is the standardized high school test of proficiency for graduation. You high school students, are you looking forward to these tests? They are starting to rule that readers may not be used for these tests because using a reader rules out the basic test of the blind student's ability to read and write and spell. I have now heard of two states that have refused to allow readers in those tests, regardless of how recently the blind student may have lost his or her sight and learned Braille. There are all sorts of questions here, but the fundamental one is this: who gets to decide which method we use?
Remember that one of the points of the Americans with Disabilities Act is that it requires flexibility. We can't demand that everything all the time be provided for the disabled. We can't get everything in Braille or on computer disk. We have to be flexible. You wouldn't expect every agenda for every city council meeting in the country to be prepared in Braille when most of them would never be read. The question of what you are required to produce in alternative media and under what circumstances is generally settled by the ADA in the way I described earlier, where our preference is to be taken into account by state and local governments, and the communication is to be effective in the case of private entities.
But I suggest to you and to my friend Mr. Sutherland that the case of testing is different. Remember that I explained last year that there are two kinds of tests. The first is gateway testing like the SAT, the GRE, the LSAT: tests that let you in, but for which there are other ways to get the job done. I did not take the LSAT, but I got my JD. With the licensure test there is no other way to get in. That's what Doug faced. He had to pass that test to get a social work license. The high school student has to pass the proficiency test to graduate. You can get a certificate of attendance if you don't pass the test--oh great! But if the only thing between you and graduation is that test and you can't pass the test because you can't use a reader, is that right? Is that fair? Is that what the Americans with Disabilities Act means? Right now the answer is yes. The ADA gives you the right to choose neither the reader of your choice nor the method of your choice. It gives the testing authority the right, if it can come up with some purported justification, to deny your choices, which can in turn deny you entry or promotion.
Right now we can't choose our readers. In Doug's case the Department of Justice was not willing to take the position that we blind people are the ones with the choice, not the testing authority. Now we are encountering situations in which we are not permitted to choose our method of taking tests. First of all we must inform ourselves about the situation as we are doing this afternoon. Then each of us must insist on the right to make those choices of which reader we will use and what method we will choose for taking the test we are facing. Insisting doesn't mean that we are going to win, but we must do so every single time and not just accept what somebody else has decided for us. The Americans with Disabilities Act is being interpreted to mean that somebody else gets to make decisions for us. Not in my world! We must insist.
We must then pool our experiences. We must write them down. This situation goes back to 1990. If you have taken a standardized test since 1990 and had a bad experience, write it down and send it to Shawn. The people at Doug's testing agency said, "Nobody's ever complained; you're the only one who has ever complained." Dan has found the same thing. He was quite surprised at your answers this afternoon because the Department of Justice is not aware by volume of complaints that anything is going on.
We don't want to send in every complaint we can think of; let's pool our knowledge and choose the best ones. We must begin to build the record for needing to change the regulations to choose method of test-taking and choice of reader if that's the method we want. If we don't do it together, we are never going to do it. I'll quote Dan one more time. He said to me this afternoon outside the door, "You guys aren't doing enough advocacy. It's not going to change until you do." And you know what? I agree with him.
So five years later, when we come back here, are we still going to be talking about this problem? Or is each one of you going to do your part individually, and through Shawn's leadership all of us do it together? Five years from now I'll be here. Let's see what happens when that doorbell rings.