The Office for Civil Rights and Non-Discriminatory Testing, Policies, and Procedures: Implications for Gifted Education.

In 1999, many Americans celebrated the 45th anniversary of the U.S. Supreme Court's 1954 decision in Brown vs. Board of Education of Topeka, Kansas. The Brown decision ranks among the most significant rulings in the history of the Court. This decision has formed the cornerstone for many subsequent legal developments that seek to ensure the civil and educational rights of African-American and other culturally and linguistically diverse students. Given the continuing impact of Brown in public school settings (namely desegregation), one must also extend its impact to specialized programs, including the desegregation of gifted education.

Any school district that receives Federal financial assistance must ensure that its activities and programs are non-discriminatory. In gifted education, administrators and educators are often in the difficult position of addressing potential inequities in identifying and serving gifted students. As a result, many schools are re-evaluating their assessment instruments, as well as policies and practices to ensure that they are non-discriminatory as required by various civil rights laws and enforcement agencies.

The Office for Civil Rights (OCR) plays a major role in helping school districts to be accountable for non-discrimination, yet few educators and administrators understand the goals and objectives of this enforcement body, particularly in the context of gifted education (also see Karnes & Marquardt, 2000). This brief article examines OCR's position on non-discriminatory testing, policies and practices. The intent is not to present an extensive review of the literature on the topic, but to focus specifically on the Office for Civil Rights and its goals and responsibility in securing the civil rights of culturally and linguistically diverse students in the context of gifted education. It is hoped that this information will shed light on the goals and responsibilities of this enforcement agency and, in the process, help school districts with gifted education services to take proactive steps to prevent assessments, policies and procedures from having a disparate impact on culturally and linguistically diverse students.

The Office for Civil Rights

The Office for Civil Rights, a branch of the U.S. Department of Education, is a law enforcement agency charged with enforcing the Federal civil rights laws that prohibit discrimination on the basis of race, color, national origin, sex, disability, and age in programs and activities that receive federal financial assistance. These five Civil Rights laws are:

1. Title VI of the of the Civil Rights Act of 1964 (prohibiting race, color, national origin discrimination);

2. Title IX of the Education Amendments of 1972 (prohibiting sex discrimination);

3. Section 504 of the Rehabilitation Act of 1973 (prohibiting disability discrimination);

4. Age Discrimination Act of 1975 (prohibiting age discrimination); and

5. Title II of the Americans with Disabilities Act of 1990 (prohibiting disability discrimination by public entities, including public school districts, public colleges and universities, public vocational schools, and public libraries, whether or not they receive Federal financial assistance) (OCR, 1999a).

For this article, Title VI, which focuses on race and culture, is most relevant. It states that "No person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance" (OCR, 1999a). The OCR averages some 5,000 discrimination complaints per year. Under Title VI, complaints include issues such as:

* Ability grouping, including gifted education classes;

* School desegregation, including racially identifiable classes and programs;

* Access to alternative-language services by English-language-learners;

* Assessment instruments and practices;

* Disciplinary practices;

* Student assignment policies, including assignment to gifted and talented programs;

* Racial harassment; and

* Grading practices.

The OCR's overarching goal is to ensure access to high standards and excellence for all students (Cantu, 1999). The organization has investigated many cases in educational settings that allege discrimination, particularly in the use of tests. Noteworthy is that the OCR examines not only tests, but also policies and practices that have a disparate impact on minority groups. Disparate impact is evident when diverse students: are denied access to challenging courses; experience negative educational outcomes; and have differential educational opportunities or experiences. When disparate impact and discrimination seem apparent, the OCR investigates and seeks resolution of complaints filed. As described below, reviews focus on school assignments, course assignments, placement issues, ability grouping and tracking, and testing and evaluation. The sections below present sample issues, considerations, and standards relevant to the notion of non-discriminatory practices in schools that receive Federal financial assistance.

Assignment to School

Segregation in school settings has been illegal since 1954 (Brown vs. Board of Education). According to Title VI, school districts may not segregate students on the basis of race, color, or national origin. Although school districts must ensure that students are not assigned on the basis of race, color, or national origin, the law does not require that each school within a district have a racially balanced student population. This misperception is common among school districts with which the author has consulted. For example, gifted education personnel frequently believe that their gifted education student population must mirror the school demographics.

Assignment to Classes

Schools may not segregate students when making classroom assignments. Some schools offer courses of study that result in the assignments of students to classes with a substantially disproportionate number of minority or non-minority students. Schools must be able to demonstrate valid and non-discriminatory reasons for such assignments. For example, valid educational reasons may exist when a class provides specially designed instruction to enable limited-English proficient (LEP) students to acquire English language skills. Students may be assigned to such courses only when appropriate and non-discriminatory evaluation, placement, and exiting criteria and procedures are followed (OCR, 1999a, 1999b). Students' language proficiency or lack thereof must not prevent students from receiving gifted education services.

Special Education Classes for Students with Disabilities

While gifted education addresses the under-representation of diverse students in its programs and services, special education addresses issues of minority student over-representation. According to Title VI, school districts are responsible ensuring that students are not misclassified as being disabled and that classification does not result in students being inappropriately placed in special education programs. School districts are required to educate students and special education students with non-special education students to the maximum extent appropriate. This is an important part of making sure that special education and gifted education placements are not used to segregate minority students in separate classes.

Classes Designed for Minority Students with Limited English Proficiency 

Many schools districts are confronted with how best to meet the needs of students with limited English proficiency. According to the OCR, school districts fail to comply with the requirements of Title VI if:

1. Limited-English proficient (LEP) students are excluded from effective participation in school because of the inability to speak and understand English;

2. LEP students are misassigned to special education classes because of their lack of English language skills; and

3. Programs for LEP students are not designed to teach them English in a timely manner, or if programs operate as a dead-end track.

Essentially, LEP students cannot be excluded from participation in gifted education programs and services. Thus, schools must find instruments, and adopt policies and procedures that do not prevent the participation of these students in gifted education programs and services. For example, all efforts must be made to have students assessed in their primary language, and policies and procedures must allow for translators or bilingual psychologists and test administrators.

Assignment of Students to Elective Courses 

Schools often allow voluntary course selection by students, particularly in high school. Assignment of students to elective courses sometimes results in disproportionate enrollments of minority students in certain classes. Schools must ensure that all students are provided non-discriminatory counseling information and have access to elective courses (OCR, 1999a).

Assignment to Ability Grouping and Tracking

School districts have a responsibility to ensure that they do not use ability grouping or tracking practices that result in discrimination on the basis of race, color, and national origin. The OCR (1999a, 1999b) defines ability grouping as the assignment of students to classes or instructional groups based upon the student's level of ability or achievement, while tracking is assignment to different courses of instruction. Ability grouping and tracking sometimes result in courses with substantially disproportionate enrollments of minority or nonminority students. When this happens, Title VI may be violated (also see Oakes, 1995).

To ensure that ability grouping or tracking practices comply with Title VI, the criteria used by schools to assign students to ability groups or tracks must be non-discriminatory. The notion of flexible grouping is relevant here. Specifically, students must be given the opportunity to move from one group to another, or in and out of assigned tracks according to their progress and based upon multiple pieces of information. If ability grouping or tracking results in classes with substantially disproportionate enrollments of students of one race or minority group, school districts must be able to demonstrate that there is a valid educational justification for their ability grouping or tracking practices. In schools, schools need to examine their rationale for gifted education programs and services and be flexible in their grouping practices. Further, assessment and placement must be ongoing.

Testing, Evaluations, and Criteria for Student Assignment

The improper use of tests can violate civil rights laws. For example, schools must choose valid and reliable tests, and use tests for their stated purposes. They must also avoid tests that have a disparate impact on diverse students (i.e., If minority students consistently perform poorly on a particular test, other tests should be adopted). Likewise, the OCR investigations have focused on states' obligations to ensure that all students are provided the intervention (i.e., instruction, remediation, and other services) necessary to perform well on tests and meet achievement standards (e.g., Cantu, 1999). Relative to IQ tests, which are used extensively in gifted education, the OCR has resolved cases in which IQ tests were the sole criterion or gatekeeper for access into gifted programs (Cantu, 1999). The OCR does not support this practice, according to Cantu, given that such tests were not designed for this purpose.

When tests are used to make educational decisions, they should be used to measure students' present knowledge or achievement, regardless of race and national origin (Cantu, 1999). School districts must be careful to use appropriate criteria and evaluation methods before assigning students to specialized classes and courses of study, including gifted education. According to the OCR, tests must be educationally sound indicators of a student's particular needs and achievement to avoid inappropriate student assignments and placements. As such, school districts must ensure that all screening procedures are non-discriminatory. The OCR also recognizes that periodic testing and re-evaluation of students in specialized courses of study may be required to ensure non-discrimination.

In his pubic briefing speech on June 18, 1999, Arthur L. Coleman, Deputy Assistant Secretary for the OCR, noted that the OCR is concerned with at least two questions regarding testing: Is the test valid for the purposes used? Are the inferences derived from test scores, and the educational judgments based on those inferences, accurate and fair?

Likes others (e.g., Callahan et al., 1995; Ford, 1996), Coleman cautioned that test results indicating that groups of students perform differently should be a cause for further inquiry and examination, focusing upon the relevant educational programs and testing practices in issue. Coleman also acknowledged that the existence of significant disparities does not always mean that the test illegally discriminates. Differences in test scores may result from a range of factors, including lack of preparation, poor skills or knowledge, inadequate exposure to the material tested, poor motivation, or problems with the test itself (also see Kaufman, 1994).

An important point worth noting is that the guarantee under Federal law is for equal opportunity-not equal results (Coleman, 1999). The legal non-discrimination inquiry regarding neutral practices (referred to by the courts as the "disparate impact" standard) is based on this point:

   If the educational decisions based upon test scores reflect significant
   disparities in the kinds of educational benefits afforded to students based
   on race, national origin or gender, then ask more probing questions about
   what's going on to ensure non-discriminatory, educationally sound
   practices.

This common sense framework is paralleled in the Code of Fair Testing Practices in Education. The Code recommends that test users review the performance of test takers of different racial backgrounds when samples of sufficient size are available, and evaluate the extent to which performance differences may have been caused by inappropriate characteristics of the test (Joint Committee on Testing Practices, Code of Fair Testing Practices in Education, 1988).

The alignment of testing principles and legal standards is essential. Tests, when used ethically and for the purposes for which they are designed, can provide valuable guidance in making educational judgments. Tests are most useful when informed by both professional psychometric standards and sound educational judgement (Cantu, 1999; Kaufman, 1994). The OCR cautions that the value test results can provide when making educational decisions about students does not mean, however, that test scores should, as a matter of good educational practice, trump the need for thoughtful educational decision making (Coleman, 1999). Note here that Federal non-discrimination laws do not preclude the prospect of the permissible use of a standardized test as a sole criterion where that test has been validated for such use.

Moreover, a test's value as an educational tool is dependent upon its design, the context in which the test is administered, and the ultimate purpose of the test. For example, the Scholastic Aptitude Test (SAT) may be valid as a tool to be used in a university's admissions decisions. However, that same test is clearly inappropriate as a basis for making decisions about whether to promote a student from the eleventh to twelfth grade or whether to confer a passing grade in chemistry for the year (Coleman, 1999).

Like many educators and others involved in assessment, the OCR recognizes that even when a test is used for the purposes consistent with its design, a test is one tool among many (also see Callahan et al., 1995; Ford, 1996, 1998; Frasier & Passow, 1994). Because tests are not perfect barometers of learning, conclusions based on test results are not always error free. To repeat, many variables can affect a student's test performance, including the quality of the student's education, the student's skill, ability, or knowledge about a particular topic, preparation for the test, what the student ate for breakfast on the day the test was administered, and the demeanor or personae of the test administrator (Coleman, 1999; Ford, 1996; Kaufman, 1994).

Accordingly, like many scholars in gifted education (e.g., Callahan et al., 1995; Ford, 1998; Frasier, Garcia, & Passow, 1995; Frasier & Passow, 1994), the OCR recognizes the importance of considering multiple and educationally appropriate measures when making life-defining decisions about students. The 1985 American Psychological Association Standards for Educational and Psychological Testing state, for instance: "In elementary and secondary education, a decision ... that will have a major impact on a test taker should not automatically be made on the basis of a single test score" (APA Standard 8.12).

* Test uses "that should be avoided" include "using test scores as the sole basis for important decisions affecting the lives of individuals, when other information of equal or greater relevance and the resources for using such information are available" (The College Board, Guidelines on the Uses of College Board Test Scores and Related Data, 1988; also see the National Association for Gifted Children, 1997).

* The SAT and other standardized tests work "very well in many different circumstances... [but] there are differences in how it works for different groups of students, for different types of educational programs, and for different institutions" (The College Board, Research Notes, RN-01, June, 1997; also see Armour-Thomas & GoPaul-McNichols, 1998).

Ultimately, Federal case laws and good educational practice (frequently reflected in test measurement standard) highlight the importance of considering objective measures such as tests in appropriate ways when making decisions about students. In short, they affirm that not all tests are created equal and that tests should be used in ways that are valid for the particular purpose for which they are developed. In legal cases and complaints in gifted education, the OCR has recommended the use of portfolios, school performance (e.g., grade point average), teacher recommendations, and achievement test data, while ensuring that the rigorous nature underling gifted programs is left intact (Cantu, 1999).

Implications for Gifted Education

In many school districts, culturally and linguistically diverse students are under-represented in gifted education (Ford, 1996; 1998). Explanations for this under-representation vary, but may explanation focus on the use of tests to identify gifted students. In general, African American, Hispanic American, and Native Americans do not perform as well on traditional intelligence and achievement tests as White students (Callahan et al., 1995; Ford, 1996). Arguments and debates abound relative to why there exists test scores gaps between White and diverse students (see Jencks & Phillips, 1998, for a contemporary discussion of this issue). Regardless of these debates, it is clear that school districts which rely exclusively or solely on tests for identification and placement in gifted education run the risk of violating civil rights laws, specifically if: the tests are inappropriate; if tests are used inappropriately, and if policies and procedures have a disparate impact on culturally and linguistically diverse students.

It is important to note that the OCR investigates civil rights violations relative to not only tests, but also policies and practices. For example, a school district may have a valid and reliable test, and use it appropriately, but the district may have questionable policies and procedures (e.g., indefensible or unfair referral and screening procedures, admittance criteria, etc.). Ford (1996) provided examples of situations in which testing, policies, and procedures have the potential to discriminate against culturally and linguistically diverse students, namely resulting in unequal opportunities to participate in gifted education. (Also see Karnes & Marquardt, 2000).

Given the persistent under-representation of culturally and linguistically diverse students in gifted education, and the potential for tests, policies and procedures to have a disparate impact on diverse students, school district personnel must become more familiar with civil rights laws and selected tests, policies and procedures that are defensible and equitable. Karnes and Marquardt (2000) noted that when race or gender discrimination is alleged, gifted education comes under scrutiny. This is especially so when school districts operate a dual system in which minority and White students are separated, that is, when classes are racially identifiable. They cited two recent cases involving gifted minority students and discrimination and alleging de facto segregation: Simmons v. Board of Public Education (1994) and Keyes v. School District No. 1 (1995). In Simmons, Lou-Ease Simmons, an African-American resident of Augusta, Arkansas school district, claimed that the district discriminated on the basis of race in grouping students by class into low, middle, and high categories. Black students were disproportionately grouped in Chapter 1 and special education classes; few were placed in gifted education. Data indicated that the number of Black students was increasing in the district but not in the gifted program. Although several recent attempts had been made to increase the participation of African Americans in gifted education classes (e.g., use of multiple criteria, use of non-verbal tests, etc.), demographic changes were not noticeable. The Judge ended ability grouping by class in this district.

In Keyes, the Court recognized "disturbing" racial differences in the district' s operation of the programs and courses for gifted students (see Karnes 8,: Marquardt, 2000). However, because the district had made several attempts to increase minority students' participation (e.g., professional development, multiple criteria, community outreach, etc.), the Court ruled that the under-representation was due, in large part, to economic and societal inequities.

Summary

Two factors are unlikely to disappear in schools -- student diversity and testing. In this article, the position of the Office for Civil Rights on issues surrounding testing and non-discriminatory policies and practices was discussed. In particular, an overview of Title VI was presented, along with examples of assessment, policies, and practices that can be potentially discriminatory in school settings in general and gifted education in particular. Any school district that receives Federal funding must be aware of civil rights laws, and educators must monitor programs and activities to avoid discrimination.

Diverse students are often under-represented in gifted education. Therefore, allegations of de facto segregation are frequently charged at gifted education. In some instances, these discrepancies are a function of societal inequities, namely racial discrimination. In other instances, however, we must examine instruments, policies and procedures to determine how they contribute to inequities in gifted education. In terms of tests, school districts must make every effort to select culturally sensitive instruments and to assess students in their primary language. Likewise, if certain policies and procedures serve as barriers, school districts must modify them. School personnel must consider it their ethical responsibility to avoid discriminatory assessments, policies and procedures.

Figure 1 Possible Discriminatory Practices in Gifted Education

                      Individual Racism

Overt/intentional     A teacher believes that Black students lack
                      motivation. On this basis, he/she requests
                      that Black students be assigned to low
                      ability groups or tracks without assessment
                      information.

Covert/intentional    A school psychologist interprets high test
                      scores received by Black students as a fluke,
                      and requests that they be re-tested.

Unintentional         A school counselor misinterprets Black
                      dialect as an inability to understand
                      standard English. The student is referred
                      to speech therapy or placed in remedial
                      language classes. Despite high verbal skills,
                      the student is not considered gifted in this
                      area.

                      Institutional Racism

Overt/intentional     School personnel openly deny admittance of
                      Black students into gifted program for fear
                      of flight by White parents to other schools.

Covert/intentional    School personnel deliberately set test scores
                      above the range scored by the majority of
                      Black students nationally or in the school
                      district. This practice excludes them from
                      the gifted program and otherwise limits the
                      number of identified Black students.

Unintentional         Admission to gifted program and services is
                      based on standardized tests without
                      consideration of group differences and biases
                      in the test construction and interpretation.

Ford (1996)

REFERENCES

Armour-Thomas, E. & GoPaul-McNichols, S. (1998). Assessing intelligence: Applying a biocultural model. Thousand Oaks, CA: Sage.

Callahan, C.M, Hunsaker, S.L., Adams, C.M., Moore, S.D., & Bland, L.C. (1995). Instruments used in the identification of gifted and talented students. Storrs, CT: National Research Center on the Gifted and Talented, University of Connecticut.

Ford, D.Y. (1996). Reversing underachievement among gifted Black students. New York: Teachers College Press.

Ford, D.Y. (1998). The under-representation of minority students in gifted education: Problems and promises in recruitment and retention. The Journal of Special Education, 32(1), 4-14.

Frasier, M.M., Garcia, J.H., & Passow, A.H. (1995). A review of assessment issues in gifted education and their implications for identifying gifted minority students. Storrs, CT: National Research Center on the Gifted and Talented, The University of Connecticut.

Frasier, M.M. & Passow, A.H. (1994). Toward a new paradigm for identifying talent potential. Storrs, CT: National Research Center on the Gifted and Talented, The University of Connecticut.

Jencks, C. & Phillips, M. (Eds.). (1998). The Black-White test score gap. Washington, DC: Brookings Institution Press.

Karnes, F.A. & Marquardt, R.G. (2000). Gifted children and legal issues.' An update. Scottsdale, AZ: Gifted Psychology Press.

Kaufman, A.S. (1994). Intelligent testing with the WISC-III. New York: Wiley and Sons.

Keyes v. School District No. h 901 F. Supp. 1274 (D. Colorado. 1995).

National Association for Gifted Children. (1997). Position paper on the use of tests in the identification of gifted students. Washington, DC: National Association for Gifted Children.

Oakes, J. (1985). Keeping track: How schools structure inequality. New Haven, CT: Yale University Press.

Office for Civil Rights (1999a). "Education and Title VI of the Civil Rights Act of 1964." www.ed.gov/offices/OCR/hq43e4.html.

Office for Civil Rights (1999b). "Student Assignment and Title VI in Elementary and Secondary Schools." www.ed.gov/offices/OCR/tviassgn.html.

Office for Civil Rights (1999, June 18). "Public Briefing: Prepared Statement of Arthur L. Coleman, Deputy Assistant Secretary, U.S. Department of Education, Office for Civil Rights." www.ed.gov/offices/OCR/testm02.html.

Office for Civil Rights (1999, June 22). "Statement by Norma Cantu, Assistant Secretary to the Office for Civil Rights." www.ed.gov/offices/OCR/testm02.html.

Simmons v. Board of Public Education. 843 F. Supp. 1296 (E.D. Arkansas, 1995).

Donna Y. Ford is Professor of Special Education at The Ohio State University. She teaches courses in gifted education and writes extensively on the need for schools to seek equity in gifted education. She is the author of two books and a member of the Roeper Review Editorial Advisory Board. Michelle Frazler Trotman is a doctoral student in the special Education Program, College of Education, at The Ohio State University.

Manuscript submitted January, 2000.

Revision accepted August, 2000.