## Facts

- Marsha Falchenberg was required to take the Liberal Arts and Sciences Test (LAST) as part of New York’s teacher-certification testing requirements.
- The New York State Education Department required the LAST, and National Evaluation Systems, Inc. administered the exam.
- Falchenberg had a disability and requested an accommodation to take the LAST in an oral format.
- The LAST was designed to assess written-language mechanics, including spelling, punctuation, capitalization, and paragraphing.
- The testing entities denied Falchenberg’s request for an oral version of the exam on the ground that an oral format would prevent the exam from measuring the written mechanics it was intended to test.
- Falchenberg sued the state education defendants and the testing administrator under Title II and Title III of the Americans with Disabilities Act (ADA), § 504 of the Rehabilitation Act, and related New York state and local laws.
- The U.S. District Court for the Southern District of New York granted summary judgment to defendants, concluding the requested accommodation was not required because it would change what the exam measured.
- Falchenberg appealed, and the Second Circuit resolved the appeal in an unpublished disposition cited as 2009 U.S. App. LEXIS 12213.

## Issues

1. Whether the ADA (Titles II and III) or § 504 of the Rehabilitation Act required defendants to provide an oral administration of the LAST when the exam was designed to test written mechanics.
2. Whether providing the requested oral format would be an unreasonable modification because it would fundamentally alter the nature of the examination.
3. Whether Falchenberg’s state and local disability-discrimination claims survived for reasons different from her federal claims.

## Decision

- The Second Circuit affirmed the district court’s grant of summary judgment for the defendants.
- The court agreed that defendants were not required to provide the requested oral-exam accommodation because it would prevent the LAST from testing the written-language skills the exam was designed to measure.
- Because the requested modification was not required under federal disability-discrimination law, Falchenberg’s related state and local claims also failed on the same core theory.

## Legal Principles

- The ADA and the Rehabilitation Act require reasonable accommodations to provide access, but they do not require changes that fundamentally alter the nature of a program, service, or examination.
- A testing entity is not required to grant an accommodation that removes or defeats an exam component that the exam is intended to measure.
- Disability-discrimination statutes generally require reasonable accommodations, not a plaintiff’s preferred accommodation, when the requested change would alter what is being tested.
- Where state and local disability claims rest on the same alleged failure to accommodate and the requested accommodation is not legally required, those claims may fail along with the federal claims.

## Conclusion

The Second Circuit affirmed summary judgment for the New York State education defendants and the test administrator because the ADA and § 504 did not require an oral version of the LAST that would eliminate assessment of written-language mechanics, and denial of that request was not unlawful discrimination.


Falchenberg v. New York State Department of Education, 2009 U.S. App. LEXIS 12213 (2009)