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Appendix D: Compendium of Federal Statutes and Regulations

This compendium provides a description of the federal nondiscrimination statutes and regulations that are relevant to testing issues and constitute the primary sources of legal authority in the guide. Specifically, this appendix primarily provides information about pertinent federal laws, including Title VI, Title IX, Section 504, Title II of the Americans with Disabilities Act, and the Individuals with Disabilities Education Act.

A. Title VI

Title VI of the Civil Rights Act of 1964, 42 U.S.C. ? 2000d, prohibits race and national origin discrimination by recipients of federal financial assistance. For the regulations issued by the Department of Education implementing Title VI, see 34 C.F.R. Part 100. Under the Civil Rights Restoration Act of 1987, OCR has institutionwide jurisdiction over the recipient of federal funds. 42 U.S.C. ? 2000d(4) (1989).

The Title VI statute bars only intentionally discriminatory conduct. However, the regulations promulgated under Title VI prohibit the use of neutral criteria having disparate effects unless the criteria are educationally justified and there are no alternative practices available that are equally effective in serving the institution?s goals and result in less disparate effects. See Guardians Ass?n v. Civil Service Comm?n, 463 U.S. 582 (1983).

The regulations implementing Title VI do not specifically address the use of tests and assessment procedures, but bar discrimination based on race, color or national origin in any service, financial aid or other benefit provided by the recipient. The provision of the Title VI regulation that prohibits criteria or methods of administration that is often applied in testing cases have the effect of discriminating based on race, color, or national origin. 34 C.F.R. ? 100.3(b)(2).

See also 34 C.F.R. ? 100, Appendix B, Part K (Guidelines for Eliminating Discrimination and Denial of Services on the Basis of Race, Color, National Origin, Sex, and Handicap in Vocational Education Programs) (?if a recipient can demonstrate that criteria [that disproportionately exclude persons of a particular race, color, national origin, sex, or disability] have been validated as essential to participation in a given program and that alternative equally valid criteria that do not have such a disproportionate adverse effect are unavailable, the criteria will be judged nondiscriminatory. Examples of admission criteria that must meet this test or assessment procedure are . . . interest inventories . . . and standardized test or assessment procedures?).

B. Title IX

Title IX of the Education Amendments of 1972, 20 U.S.C. ?? 1681 et seq., prohibits sex discrimination by recipients of federal financial assistance. For the regulations issued by the Department of Education implementing Title IX, see 34 C.F.R. Part 106. As under Title VI, OCR, per the Civil Rights Restoration Act of 1987, has institutionwide jurisdiction over the recipient of federal funds. 42 U.S.C. ? 2000d(4) (1989).

In addition to general prohibitions against discrimination, the regulations implementing Title IX specifically prohibit the discriminatory use of test or assessment procedures in admissions, 34 C.F.R. ? 106.21, employment, 34 C.F.R. ? 106.52, and counseling 34 C.F.R. ? 106.36.

See also 34 C.F.R. ? 100, Appendix B, part K (Guidelines for Eliminating Discrimination and Denial of Services on the Basis of Race, Color, National Origin, Sex, and Handicap in Vocational Education Programs), discussed above in relation to Title VI.

C. Section 504 of the Rehabilitation Act of 1973

Section 504 prohibits discrimination by recipients of federal financial assistance. OCR enforces Section 504 and its regulations in education programs. The regulations implementing Section 504 contain certain sections that are particularly relevant to testing situations:

34 C.F.R. ? 104.4(b)(4) prohibits criteria or methods of administration that have the effect of discriminating against qualified persons with disabilities.

34 C.F.R. ? 104.42(b)(2) prohibits admissions procedures by higher educational institutions that make use of any test or criterion for admission that has a disproportionate, adverse impact on qualified individuals with disabilities unless (1) the test or criterion, as used by the institution, has been validated as a predictor of success in the education program or activity and (2) alternate tests or criteria that have a less disproportionate, adverse impact are not shown to be available. 34?C.F.R. ? 104.42(b)(3) requires admissions tests used by post-secondary institutions to be selected and administered so as best to ensure that, when a test is administered to an applicant with a disability, the test results accurately reflect the applicant?s aptitude or achievement, rather than reflecting the student?s disability (except where disability-related skills are the factors the test purports to measure). 34 C.F.R. ?? 104.44(a) and 104.44(d) require higher education institutions to provide adjustments or accommodations and auxiliary aids and services that enable the student to demonstrate the knowledge and skills being tested.

34 C.F.R. ? 104.44(a) states that academic requirements that the institution can demonstrate are essential to the program of instruction or to any directly related licensing requirement will not be regarded as discriminatory.

34 C.F.R. ? 104.35(b) requires public elementary and secondary education programs to individually evaluate a student before classifying the student as having a disability or placing the student in a special education program; tests used for this purpose must be selected and administered so as best to ensure that the test results accurately reflect the student?s aptitude or achievement or other factor being measured rather than reflecting the student?s disability, except where those are the factors being measured. These provisions also require that tests and other evaluation materials include those tailored to evaluate the specific areas of educational need and not merely those designed to provide a single intelligence quotient.

D. Title II of the Americans with Disabilities Act (ADA)

Title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. ? 12134, prohibits discrimination on the basis of disability by public entities. Regulations implementing Title II, issued by the U.S. Department of Justice, can be found at 28 C.F.R. Part 35. OCR enforces Title II as to public schools and colleges. Like the Section 504 regulations, the regulations implementing Title II prohibit ?criteria and methods of administration which have the effect of discriminating? against qualified persons with disabilities. See 28 C.F.R. ? 35.130(b)(3). The regulations also require public entities to make reasonable accommodations to policies, procedures, and practices when the modifications are necessary to avoid discrimination unless the public entity can demonstrate that the modification would fundamentally alter the nature of the service, program, or activity. 28 C.F.R. ? 35.130(b)(7).

E. Individuals with Disabilities Education Act (IDEA)

The Individuals with Disabilities Education Act (IDEA) contains important provisions related to testing students with disabilities in elementary and secondary schools. IDEA is enforced by the Office of Special Education Programs in the U.S. Department of Education. As amended in 1997, IDEA requires inclusion of students with disabilities in state- and districtwide assessment programs, with appropriate accommodations, if necessary, unless the student?s individual education team decides that participation in all or part of the testing program is not appropriate. The student?s individualized education program (IEP) should also state any individual modifications in the administration of state- or districtwide assessments of student achievement that are needed in order for the student to participate in such assessment. If the IEP team determines that the student will not participate in a particular state- or districtwide assessment of student achievement (or part of such an assessment), the student?s IEP must include statements of why that assessment is not appropriate for the student and how the student will be assessed. IDEA also requires state or local education agencies to develop guidelines for the alternate assessment of the relatively small number of students with disabilities who cannot take part in state- and districtwide tests to participate in alternate assessments. These alternate assessments must be developed and conducted not later than July 1, 2000. 20 U.S.C. ?? 1412(a)(16) and (17), 1413(a)(6), 1414(d)(1)(A) and (d)(6)(A)(ii); 34 C.F.R. ?? 300.138, 300.139, 300.240, 300.347.

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