High Stakes Testing for Tracking, Promotion, and Graduation (1999) / Chapter Skim
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3 Legal Frameworks
3 Legal Frameworks
Pages 50-70
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Many of these rules are rooted in the U.S. Constitution, federal civil rights statutes, and judicial decisions.
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are often invoked in legal challenges to high' stakes testing, anc3 testing programs are more likely to withstand legal challenges if professional stanciarcis have been met. Incieec3, legal stan' Harris anc3 psychometric stanciarcis reflect many common concerns, in' clucling those of appropriate measurement, proper attribution of cause, anc3, in some contexts, the educational consequences of test use (Na' tional Research Council, 1982~.
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Other cases clepenc3 on whether a test carries forward or preserves the effects of prior illegal discrimination. A third claim, grounclec3 in federal civil rights statutes and accompanying regulations, employs an "effects test" that considers whether a high-stakes test has a disproportionate, adverse impact; whether the use of a test having such an impact can be adequately justified on educational grounds; and whether there are equally feasible alternative tests that have less disproportionate impact.
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. Use of the 2Recognizing that each situation "demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available," the Supreme Court has identified criteria to aid courts in determining whether a decision maker has acted "because of" the disproportionate adverse effects its policy or practice will have (Village of Arlington Heights v.
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that IQ test scores were only one of several factors used to determine placements, (3) that erroneous placements of black children in EMR classes occurred infrequently anc3 for reasons other than intentional discrimination, (4)
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This suggests that it would be unlawful for school officials to use tests to track minority students, deny them high school diplomas, or retain them in gracie if those stun cients' low test scores are traceable to their having attenciec3 illegally segregated schools. 6Based on an analysis of relevant law, Phillips advises state and local education agencies involved in high-stakes testing to "follow professional standards in all technical matters, including, but not limited to, item development, item selection, validity, reliability, item bias review, equating, scaling, setting passing standards, test security, accommodations, test administration, scoring, and score reporting" (Phillips, 1993a:xxi)
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If a state or school district has had a recent history of segregation or intentional discrimination, judges will scrutinize more closely test-use policies that produce disproportionate adverse impact. Even in formerly fit is, however, one legal ground on which Mexican-American students in Texas are currently challenging the use of a state test as the basis for granting or withholding high school diplomas (G.I.
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Claims of Disparate Impact Several federal civil rights statutes prohibit recipients of federal funds, including state education agencies and public school districts, from clis 9In Simmons, the district court rejected the arguments of school officials who claimed that low-track placements were educationally beneficial for black children. The court also found no educational justification for grouping classes of children for all subjects Simmons or Behalf of Siphons v.
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prohibit cliscrimina' tion against students with disabilities. These statutes forbid intentional discrimination against students, as does the Constitution's equal protection clause, but federal regulations go further: they provide that a federal fund recipient may not "utilize crite' ria or methods of administration which have the effect of subjecting infix vicluals to discrimination.'' In interpreting this Title Vl regulation and similar regulations uncler Title ~X, courts have drawn on interpretations of a federal employment discrimination statute, Title VIl.12 This method of proving a legal violation is known as a disparate impact claim, and lower courts in many jurisdictions have recognized a three~part legal test for judging such claims (Debra P
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. 15Another common rule of thumb for assessing disparate impact is set forth in guidelines of the Equal Employment Opportunity Commission (1978~; disparate impact is generally found if the success rate of a protected group is less than four-fifths, or 80 percent, of the rate at which the most highly selected group (usually whites or males)
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Alabama State Board of Educatiorr, 1991~.18 Thus, uncier a disparate impact stanciarc3, legal liability may ciepenc3 in part on whether the test raises problems of measurement, which may be the case if the test has not been valiciatec3 for the particular purpose for which it is being used or has not been valiciatec3 for all parts of the test' taking population (American Educational Research Association et al., 1998:12;19 Larry P
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anxiety, inattention, low motivation, fatigue, limited English proficiency, or cer' rain sensory handicaps' other than low ability" (National Research Count cdl, 1996a:4, quoting Messick, 1989; American Educational Research Association et al., 1998:Draft Stanciarc3 161.2° Thus, for example, "if students with limited English proficiency are tested in English in areas other than language arts and then classified on the basis of their test scores .
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New York State Education Department ( 1989) , however, the court declared that New York's exclusive reliance on SAT scores in awarding scholarships for high school achievement was illegal, partly because a combination of students' grades and scores had less disparate impact on the basis of sex.
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Adequate Nolice One concern, first raised in the context of high~stakes graduation tests, is that school officials must ensure fairness by giving students prior notice of a new high~stakes assessment requirement. In Debra P
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Anc3 although the issue has not been litigated to ciate, similar notice may be called for when states or school districts are adopting new high-stakes tests for promotion. Curricular Valiclity A second clue process requirement concerns what the Debra P
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Use of the proposed voluntary national test for high' stakes purposes, although not recommenclec3 by the U.S. Department of Education, would almost certainly raise questions of this kind, if only because it would take time for states anc3 school districts to align their curricula anc3 their teaching with the requirements of a national test.
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. The stated purpose of the change in federal law is "to enable schools to provide opportunities for children served to acquire the knowledge anc3 skills contained in the challenging content stanciarcis anc3 to meet challenging state performance stanciarcis for all children (Improving America's Schools Act, 20 U.S.C.
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Test validation is often costly, but it is a critical undertaking" (National Research Council, 1996a:5, citing Office of Tech' nology Assessment, 1992~. More generally, the letter report states that, in reviewing the use of tests with disparate impact to classify students, the Office for Civil Rights "should make a determination not only about the test itself but about whether the entire process for classifying students is fair and noncliscrimi' natory and whether students are being provided an equal opportunity to learn" (National Research Council, ~ 996a:3 )
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Pp. 115-132 in The Courts, Validity, arid Minimum Competency Testing, G
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sections 1703 et seq. Equal Employment Opportunity Commission, Uniform Guidelines on Employment Selection Procedures, 29 C.F.R.
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Jackson Municipal Separate School District, 419 F.2d 1211 (5th Cir.) (err boric)
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