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Standardized tests: low marks for fairness.

The use of standardized tests to make important educational decisions often results in discrimination. Fortunately, our federal civil rights laws provide a remedy.

The current era of education reform emphasizes measures of accountability. Educational leaders are, more and more, relying on standardized tests to determine the progress of schools and students. Schools are using these tests to make decisions with high-stakes consequences for students, such as placement in gifted-and-talented or special-education programs, promotion from one grade level to another, graduation from high school, and admission to college.

Is this a positive trend? It could be--if standardized tests are used properly. Unfortunately, they are frequently misused. Instead of promoting educational excellence for all students, high-stakes tests often unfairly deny educational opportunities to students based on their race, ethnicity, sex, or disability.

The discriminatory use of standardized tests can be remedied in a variety of ways, one of which is to make policy makers and educators aware of the appropriate standards for testing policies and practices.(1) But there is another powerful weapon in our arsenal to combat the misuse of these tests: our federal civil rights laws.

When tests are used to make educational decisions for students, they are supposed to accurately measure a student's abilities, knowledge, skills, or needs in ways that do not discriminate.

According to the National Research Council, "When test use is inappropriate, especially in making high-stakes decisions about individuals, it can undermine the quality of education and equality of opportunity.... This lends special urgency to the requirement that test use with high-stakes consequences for individual students be appropriate and fair."(2)

What constitutes an inappropriate or discriminatory use of these tests? Federal courts evaluating the legality of tests used to make high-stakes decisions have found them discriminatory in the following circumstances:

* when the test is used for a purpose for which it was not designed or validated;(3)

* when a test score is the sole criterion for the educational decision;(4)

* when there is no educational basis for establishing a passing or cutoff score;(5) and

* when the test predicts differently for different groups--such as by overestimating the future performance of one group while underestimating the future performance of another group--or contains possible cultural biases.(6)

Remedies for educational discrimination

What can we do when educational decision makers fail to follow the guidelines offered by the leading experts on test measurement and, instead, use tests inappropriately, to make high-stakes decisions for students? A variety of federal statutory, regulatory, and constitutional antidiscrimination principles provide a legal basis for challenging the misuse of standardized tests.

Four applicable federal statutes prohibit various types of discrimination: Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, and national origin; Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex; [sections] 504 of the Rehabilitation Act of 1973 prohibits discrimination on the basis of disability; and Title II of the Americans with Disabilities Act (ADA) of 1990 also prohibits discrimination on the basis of disability.(7) Title VI, Title IX, and [sections] 504 apply to all educational programs and activities that receive federal funds. Title II applies to public entities, including public school districts and state colleges and universities, regardless of whether they receive federal funds.

Federal regulations implement these statutes.(8) In addition, the Due Process and Equal Protection Clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution have been used to challenge high-stakes tests.(9)

The four antidiscrimination statutes, the regulations implementing them, and the Equal Protection Clause of the Fourteenth Amendment prohibit intentional discrimination based on race, national origin, sex, and/or disability. The regulations also prohibit policies and practices that have an unjustified discriminatory effect or "disparate impact" on students based on these classifications.(10)

Disparate-impact discrimination generally occurs when the application of a facially neutral criterion--such as a standardized test--disproportionately disadvantages a group of students based on their race, national origin, sex, or disability, and the criterion is not justified by educational necessity or equally effective alternative criteria would result in less disparity.(11)

To prove that a test is justified by "educational necessity," an institution must show that there is a "manifest relationship" between the use of the test and the institution's educational purposes.(12) For example, if a cutoff score is required for admission to a college's teacher training program, the college would have to demonstrate that the selected cutoff bears a significant relationship to minimal competence as a teacher. Even if the test's use is educationally justified, the plaintiff may still prevail if he or she shows there is an equally effective alternative that serves the same goals with less disparity.(13)

Case law

The antidiscrimination principles in the federal Constitution, statutes, and regulations described above are well-established elements of the civil rights enforcement scheme. Their application to the use of high-stakes tests is just developing, and the expanding use of these tests has led to lawsuits that are breaking new ground. Still, there is case law that illustrates how courts have applied these principles to high-stakes tests.

In Sharif v. New York State Education Department, female applicants for New York State merit scholarships alleged discrimination against women in violation of Title IX and the Equal Protection Clause where the state awarded the scholarships based solely on scores on the Scholastic Aptitude Test (SAT). The federal district court preliminarily enjoined this use of SAT scores because the test had been designed to predict college success and was not designed or validated to measure high school achievement.(14)

The court also ruled that the plaintiffs were likely to succeed on their discrimination claims because of evidence that the SAT predicts differently for females and males--that is, it underpredicts performance for female college freshmen as compared with males.(15) The court ordered the state to use a combination of grades and SAT scores to award college scholarships, leaving open the possibility that the state could develop other alternatives in the future.(16)

Courts have also found discrimination where the use of a particular cutoff or passing score on a test could not be educationally justified. For example, in Groves v. Alabama State Board of Education, a federal district court struck down the state's use of a cutoff score on the American College Test (ACT) as a requirement for admission to an undergraduate teacher training program. The court held that the score had a disparate impact on African American students and was not educationally justified because the state failed to show that it was a valid measure of the minimal ability necessary to become a teacher.(17)

Pending lawsuits

A number of civil rights suits challenging the use of various high-stakes tests are pending around the country. Trial Lawyers for Public Justice (TLPJ), a national public interest law firm, is currently litigating three of these cases in Oregon, Michigan, and Pennsylvania.

In the first lawsuit of its kind in the nation, TLPJ and Disability Rights Advocates of Oakland, California, have charged the Oregon State Board of Education and the Portland Public School Board with implementing a new high school testing program that discriminates against students with learning disabilities. The class action lawsuit, Advocates for Special Kids v. Oregon State Board of Education, alleges that Oregon's new Certificate of Initial Mastery (CIM) testing system violates Title II of the ADA, [sections] 504 of the Rehabilitation Act, the Individuals with Disabilities Education Act, the Due Process Clause, and Oregon law.(18)

The new system requires that all 10th graders in Oregon's public schools pass a series of tests to achieve a CIM. A student who fails any of the tests may be required to repeat 10th grade or attend summer school, may be shut out of the school's honors programs, may not graduate from high school, and may be denied admission to Oregon state colleges.

In essence, the suit alleges two forms of discrimination. It claims that the tests are discriminatory because they do not test the aptitude or achievement level of students with learning disabilities and that the state does not provide reasonable accommodations for these students.

The lawsuit charges that children with learning disabilities, such as dyslexia and other neurological problems, will be unfairly affected because the tests directly measure their disabilities rather than their abilities. For example, the requirement that some tests be handwritten unfairly discriminates against children who may excel in ideas, organization, and fluency, but whose learning disabilities impair their ability to write or express thoughts on paper. The writing test, which emphasizes spelling and punctuation, is virtually impossible for a dyslexic child to pass.

The lawsuit seeks to ensure that students with learning disabilities receive necessary test accommodations and that the schools develop and implement a coherent and nondiscriminatory policy. In some instances, this may mean that a student with learning disabilities would be permitted to use a word processor, a scribe, assistive technology, or other accommodations to take the tests needed to achieve a CIM. In other instances, students with learning disabilities might be provided with alternative assessment options for achieving a CIM.

It appears that these goals will be achieved through a settlement. The parties agreed to stay the litigation and appoint a blue-ribbon panel of six national experts on testing, special education, and learning disabilities to review and make recommendations on Oregon's testing program as it relates to students with learning disabilities. The panel has issued its final report, and the parties are drafting a settlement agreement under which the state will implement the panel's recommendations.

In addition to battling discrimination against students with learning disabilities, TLPJ and a coalition of public interest organizations and private attorneys have filed a class action lawsuit against Michigan state agencies and officials for creating a college scholarship program that discriminates against minorities and economically disadvantaged high school students. The suit, White v. Engler, challenges the state's decision to use the Michigan Education Assessment Program (MEAP) tests as the sole criterion for awarding college scholarships.(19)

The plaintiffs allege that the scholarship selection process violates Title VI and its implementing regulations, the Equal Protection Clause, and 42 U.S.C. [sections] 1983. They are asking the court to order the state to stop using the tests as the sole criterion for awarding scholarships, to adopt new procedures for selection, and to reevaluate the scholarship eligibility of students who have been denied awards under the program (without taking scholarships away from those students who have already qualified).

By relying solely on MEAP test scores, Michigan's scholarship program disproportionately excludes African American, Hispanic, and Native American students, as well as students who attend schools in low-income neighborhoods.

In addition, the MEAP tests, which were designed to measure how the state's schools are performing, have never been validated as a means of assessing individual performance.

As a leading organization on educational test measurement has warned, serious harm may occur when high-stakes testing programs are used where educational resources are inadequate or where tests lack sufficient reliability and validity for their intended purposes.(20) Though it may be appropriate to test students on material they may not have been taught to determine whether schools are doing their job, most testing professionals would find it inappropriate to use that same test to hold students "accountable" for the failure of the schools.(21)

In addition, according to the leading experts, decisions that affect individual students' educational opportunities should not be based solely on test scores. Instead, test scores should be used in conjunction with other criteria, such as grades, teacher recommendations, and extracurricular activities, to enhance the validity of high-stakes decisions.(22)

The defendants in White v. Engler have moved to dismiss the case on constitutional and jurisdictional grounds, arguing that states have Eleventh Amendment immunity from suit under Title VI, that there is no implied private right of action to sue for disparate-impact discrimination under Title VI regulations,(23) and that the court lacks jurisdiction under Title VI because the scholarship program does not use federal funds.(24)

The U.S. Department of Justice has intervened on the issue of Eleventh Amendment immunity, supporting the plaintiffs' argument that the states have waived their sovereign immunity under Title VI,(25) and has filed an amicus brief supporting their position on the other issues. Although the court has not ruled on the motion to dismiss, the plaintiffs are optimistic that they will overcome these procedural hurdles and the court will eventually reach the merits.

TLPJ is also litigating a national race discrimination class action in Pennsylvania, Cureton v. National Collegiate Athletic Association (NCAA), that challenges the use of cutoff scores on college entrance examinations to determine eligibility to compete for and receive athletic scholarships.(26) The NCAA, which governs intercollegiate athletics, requires all potential freshman student-athletes at major colleges and universities to achieve a minimum score on the SAT or ACT--regardless of their academic records or other scholastic achievements. The lawsuit charges that the requirement discriminates against African American student-athletes in violation of Title VI and its implementing regulations. The complaint alleges that the use of fixed cutoffs on the SAT and ACT has an unjustified disparate impact on African American student-athletes.

The suit does not assert that the NCAA is prohibited from considering student-athletes' test scores. Rather, it challenges the manner in which the association uses them. Specifically, the plaintiffs seek an injunction prohibiting the NCAA from using the fixed cutoff scores and allowing all injured class members to regain their lost year of athletic eligibility.

When the NCAA first proposed adopting a fixed cutoff score requirement, the Educational Testing Service, which designed the SAT, warned the association that the requirement was improper and would disproportionately affect African American students. A federal district court agreed, granting summary judgment for the plaintiffs and striking down the minimum test score requirement. The court held that even if the NCAA had shown that its requirement was educationally justified, the plaintiffs had demonstrated at least three alternative practices resulting in less racial disproportionality while still serving the NCAA's goals.(27) Under one of the alternatives, the association could determine athletic eligibility by using a full sliding scale of test scores and grades with no fixed cutoffs, in which higher grades would compensate for lower test scores and vice versa.

This case is now before the Third Circuit Court of Appeals for the second time. The court has never reached the merits. Initially, it reversed the district court on jurisdictional grounds, based on a narrow interpretation of Title VI's disparate-impact regulations.(28) The U.S. Department of Education then amended those rules to avoid any recurrence of what it viewed as an incorrect interpretation and to make their broad scope abundantly clear.(29) The court is now considering whether the plaintiffs should be permitted to proceed with an amended complaint alleging intentional discrimination under Title VI.(30)

Proper use of tests

Given the growing emphasis on standardized tests as measures of the performance of our schools and our children, we must monitor the use of these tests to ensure that they do not deny educational opportunities to students based on their race, ethnicity, sex, or disability. Inquiring into the appropriate use of tests does not mean that we will "dumb down" our academic standards. Establishing equitable academic standards and achieving higher standards for our schools and children are not mutually exclusive. We must not support one of these principles at the expense of the other.

The proper use of tests is important in all arenas, but especially in education. As one federal appeals court noted in distinguishing between testing in employment and in education:
 [I]f tests can predict that a person is going to be a poor employee, the
 employer can legitimately deny that person a job, but if tests suggest that
 a young child is probably going to be a poor student, the school cannot on
 that basis alone deny that child the opportunity to improve and develop the
 academic skills necessary to success in our society.(31)


Challenging the discriminatory use of tests does not mean that we must eliminate or significantly reduce our reliance on standardized tests in education. It simply means that schools and others will be forced to ensure that they do not rely on standardized tests in inappropriate ways.

The three cases filed by TLPJ underscore this point. If the plaintiffs were to prevail in each of the cases, standardized tests would continue to be used; they would just be used differently.

* In Advocates for Special Kids, Oregon's CIM testing program would continue but would include accommodations for children with learning disabilities.

* In White, standardized tests would still be used to award college scholarships but would not be the sole criterion for these awards.

* In Cureton, the NCAA would be prohibited from using its minimum test score requirement but could continue to consider a student's test scores in determining athletic eligibility.

In short, these cases seek to ensure that standardized tests are used in ways that do not sacrifice equal opportunity in the name of higher academic standards.

Former U.S. Secretary of Education Richard Riley has suggested that the new civil right in the 21st century is a quality education.(32) This right is being violated by the misuse of standardized tests to make high-stakes educational decisions that affect the future of our children. We need not stand idly by and watch the trend continue, because our federal civil rights laws offer powerful tools for protecting this important right.

Notes

(1.) The primary technical authority on educational test measurement issues is the Standards for Educational and Psychological Tests, prepared by a joint committee of the three leading organizations on educational test measurement: the American Psychological Association, the American Educational Research Association, and the National Council on Measurement in Education. See U.S. DEP'T OF EDUC., OFFICE FOR CIVIL RIGHTS, THE USE OF TESTS AS PART OF HIGH-STAKES DECISION-MAKING FOR STUDENTS: A RESOURCE GUIDE FOR EDUCATORS AND POLICY MAKERS 2-3 (December 2000) [hereafter OCR RESOURCE GUIDE].

(2.) BOARD ON TESTING & NAT'L ASSESSMENT, NAT'L RESEARCH COUNCIL, HIGH STAKES: TESTING FOR TRACKING, PROMOTION AND GRADUATION 4 (Jay P. Heubert & Robert M. Hauser eds., 1999) [hereafter NAT'L RESEARCH COUNCIL].

(3.) See Sharif v. New York State Educ. Dep't, 709 F. Supp. 345, 361-62 (S.D.N.Y. 1989).

(4.) See United States v. Fordice, 505 U.S. 717, 734-35, 738 (1992).

(5.) See Groves v. Alabama State Bd. of Educ., 776 F. Supp. 1518, 1530-31 (M.D. Ala. 1991).

(6.) See Larry P. v. Riles, 793 F.2d 969, 980-81 (9th Cir. 1984).

(7.) These four statutes are codified respectively at 42 U.S.C. [subsections] 2000d-2000d-7 (2000) (Title VI), 20 U.S.C. [subsections] 1681-1688 (1999) (Title IX), 29 U.S.C. [sections] 794 (1999) ([sections] 504), and 42 U.S.C. [subsections] 12131-12134 (1995 & Supp. 1999) (Title II).

(8.) 34 C.F.R. pt. 100 (2000) (Title VI), 34 C.F.R. pt. 106 (2000) (Title IX), 34 C.F.R. pt. 104 (2000) ([sections] 504); 28 C.F.R. pt. 35 (2000) (Title II).

(9.) See, e.g., Fordice, 505 U.S. 717, 731-32; Debra P.v. Turlington, 644 F.2d 397, 404, 407 (5th Cir. 1981).

(10.) See 34 C.F.R. [sections] 100.3(b)(2) (Title VI); 34 C.F.R. [sections] 106.21(b)(2) (Title IX); 34 C.F.R. [sections] 104.4 (b)(4)(i) ([sections] 504); 28 C.F.R. [sections] 35.130(b)(3) (Title II). The [sections] 504 regulations and the Individuals with Disabilities Education Act--which establishes rights and protections for students with disabilities and their families--contain specific provisions regarding the use of high-stakes tests for students with disabilities. See 20 U.S.C. [subsections] 1412(a)(17), 1414(b); 34 C.F.R. [subsections] 104.35, 104.42(b); see also 34 C.F.R. [subsections] 300.138-300.139, 300.530-300.536.

(11.) See NAACP v. Georgia, 775 F.2d 1403, 1417-18 (11th Cir. 1985); Sandoval v. Hagan, 7 F. Supp. 2d 1234, 1278 (M.D. Ala. 1998), aff'd, 197 F.3d 484 (11th Cir. 1999), cert. granted on other grounds sub nom. Alexander v. Sandoval, 121 S. Ct. 28 (2000); Larry P., 793 F.2d 969, 982 n.9.

(12.) See NAACP, 775 F.2d 1403, 1418; Groves, 776 F. Supp. 1518, 1529-32; Sharif, 709 F. Supp. 345, 362.

(13.) See New York Urban League v. New York, 71 F.3d 1031, 1036 (2d Cir. 1995);NAACP, 775 F.2d 1403, 1417.

(14.) Sharif, 709 F. Supp. 345, 361-62.

(15.) Id. at 354.

(16.) Id. at 364; see also Fordice, 505 U.S. 717, 734-36; Larry P., 793 F.2d 969, 980-81.

(17.) Groves, 776 F. Supp. 1518, 1530-31; see also Cureton v. National Collegiate Athletic Ass'n, 37 F. Supp. 2d 687 (E.D. Pa.), rev'd on jurisdictional grounds, 198 F.3d 107 (3d Cir. 1999).

(18.) No. CV 99-263 KI (D. Or. filed Feb. 22, 1999). In a related development, on October 11, 2000, the U.S. Supreme Court heard oral argument in University of Alabama v. Garrett (No. 99-1240), in which Alabama asserts that individuals are barred from suing states under the ADA because of Eleventh Amendment immunity. Advocates of the ADA counter that the law is a valid exercise of congressional power to enforce the Equal Protection Clause.

(19.) No. 00-CV-72882 (E.D. Mich. filed June 27, 2000).

(20.) American Educ. Research Ass'n, AERA Position Statement Concerning High-Stakes Testing in PreK-12 Education (adopted July 2000), at http://www.aera.net/about/policy/stakes.htm (last visited Dec. 1, 2000) [hereafter AERA Statement].

(21.) See NAT'L RESEARCH COUNCIL, supra note 2, at 21.

(22.) See AERA Statement, supra note 20; see also JOINT COMMITTEE ON THE STANDARDS FOR EDUCATIONAL AND PSYCHOLOGICAL TESTING, STANDARDS FOR EDUCATIONAL AND PSYCHOLOGICAL TESTING STANDARD 13.7 (1999); OCR RESOURCE GUIDE, supra note 1, at 4, 35.

(23.) The Supreme Court granted review on whether the Title VI regulations are privately enforceable in Alexander v. Sandoval, 121 S. Ct. 28 (2000). There is also a strong basis for arguing that the regulations may be enforced against state actors through 42 U.S.C. [sections] 1983.

(24.) Title VI applies to all operations of any "program or activity" receiving federal funds, even if the particular portion of the program or activity does not receive or use federal funds. See 42 U.S.C. [sections] 2000d-4(a); Radcliff v. Landau, 883 F.2d 1481, 1482-83 (9th Cir.), clarified, 892 F.2d 51 (9th Cir. 1989); see also Horner v. Kentucky High Sch. Athletic Ass'n, 43 F.3d 265, 272 (6th Cir. 1994); Cohen v. Brown Univ., 991 F.2d 888, 894 (1st Cir. 1993). But see Cureton, 198 F.3d 107, 115 (holding that Title VI regulations are "program specific").

(25.) See 42 U.S.C. [sections] 2000d-7; Litman v. George Mason Univ., 186 F.3d 544, 554-55 (4th Cir. 1999), cert. denied, 120 S. Ct. 1220 (2000); Franks v. Kentucky Sch. for the Deaf, 142 F.3d 360, 362 (6th Cir. 1998).

(26.) 37 F. Supp. 2d 687.

(27.) Cureton, 37 F. Supp. 2d 687, 700-01, 712-13.

(28.) Cureton, 198 F.3d 107, 115.

(29.) See Conforming Amendments to the Regulations Governing Nondiscrimination on the Basis of Race, Color, National Origin, Disability, Sex, and Age Under the Civil Rights Restoration Act of 1987, 65 Fed. Reg. 68050 (Nov. 13, 2000) (to be codified at 34 C.F.R. pts. 100, 104, 106, and 110).

(30.) Cureton v. NCAA, 2000 U.S. Dist. LEXIS 6526 (E.D. Pa. May 12, 2000), appeal docketed, No. 00-1559 (3d Cir. May 15, 2000).

(31.) Larry P., 793 F.2d 969, 980 (quoting Larry P. v. Riles, 495 F. Supp. 926, 969 (N.D. Cal. 1979)).

(32.) U.S. Secretary of Education Richard W. Riley, Speech at 1997 National Charter Schools Conference (Nov. 4, 1997); see also OCR RESOURCE GUIDE, supra note 1, at vi.

Adele P. Kimmel is a staff attorney with Trial Lawyers for Public Justice in Washington, D.C. She can be reached via e-mail at akimmel@tlpj.org.
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