Critics of high-stakes tests argue that being denied a diploma because of these unfair tests further victimizes the very same minority students who are forced to attend the worst schools. Supporters argue that the very purpose of the test is to motivate teachers, schools, and all students to achieve at higher levels.

This debate finally boiled over in Texas when the Mexican American Legal Defense and Education Fund (MALDEF) filed suit against Texas on behalf of several minority students. Our report presents a brief analysis of the case and the arguments made both for and against the test.

EXECUTIVE SUMMARY

The litigation in GI Forum v. Texas Education Agency is of crucial importance to those states and school districts that already have or are considering a requirement that students pass a comprehensive test before being awarded a high school diploma. Texas is one of nineteen states with such a requirement. READ Perspectives has collected the key materials from this case and is publishing them.

The lawsuit in GI Forum was filed on October 14, 1997, in federal district court in Texas. The complaint against the state of Texas by MALDEF alleged that the TAAS test for high-school graduation was illegally discriminatory. The test measures proficiency in reading, writing, and math. On January 7, 2000, Judge Edward C. Prado dismissed the lawsuit, ruling that TAAS neither unfairly discriminates against black and Mexican American students nor denies them their right to due process. MALDEF has announced it will not be appealing Judge Prado’s ruling. In addition to the original complaint and Judge Prado’s opinion, READ Perspectives will also include decisive testimony from three expert witnesses at the trial: Dr. S.E. Phillips, Dr. William A. Mehrens, and Dr. Rosalie Pedalino Porter.

This READ Abstract summarizes and analyzes the various material that will appear later this year in READ Perspectives.

THE COMPLAINT

MALDEF’s complaint was filed on behalf of the GI Forum, Image de Texas, and seven Mexican American or African American students. It named as defendants the Texas Education Agency (TEA), members of the Texas State Board of Education, and Texas Commissioner of Education Mike Moses. The complaint asserted that TAAS “denies diplomas to Mexican American and African American students at a rate significantly higher than that of Anglo students,” thereby “violat[ing] a variety of United States Constitutional, statutory and regulatory provisions, as well as fundamental fairness.”

The complaint alleged that “Mexican Americans and African Americans have suffered from a long and well-documented history of discrimination in Texas public schools.” It asserted that “[w]hites are almost twice as likely as Mexican Americans and African Americans to pass the TAAS,” and that “TAAS is an invalid instrument for determining which students are qualified to receive diplomas” because “[m]any who score below the cut-off score could perform satisfactorily as high school graduates in college, the military and the workforce.” The core of the complaint, then, was that TAAS had an illegal “disparate impact” on blacks and Mexican Americans.

MALDEF concluded that the defendants were denying “equal educational opportunities” in contravention of an earlier federal case, United States v. Texas, as well as violating the plaintiffs’ equal protection and due process rights under the Fourteenth Amendment to the United States Constitution. In addition, MALDEF complained that defendants were illegally discriminating on the basis of race and national origin in violation of Title VI of the Civil Rights Act of 1964, the U.S. Department of Education’s Title VI regulations, and the Equal Educational Opportunities Act. The complaint asked the court to enjoin the state’s use of TAAS until it is “properly validated” and its discriminatory effects “shown to be as minimal as any reasonably effective alternative.” Finally, MALDEF sought a permanent injunction against “any standardized test as an absolute requirement for receipt of a high school diploma.”

PHILLIPS TESTIMONY

Dr. Phillips of Michigan State University testified that the TAAS exit level test “meets all relevant professional standards for test development and use.” She analyzed the differential performance between black and Mexican American students, on the one hand, and white students on the other, as well as the dropout data. In addition, she carefully pointed out the flaws in the analyses of three plaintiffs witnesses: Dr. Shapiro, Dr. Haney, and Mr. Fassold.

The benefits that Dr. Phillips identified from TAAS’s implementation included increasing the level of skills and knowledge attained by high school graduates, better remediation for unprepared students, and closing the gap between the performance of different racial and ethnic groups. She also noted that eliminating TAAS would probably not change the dropout rate appreciably, nor cause African American or Mexican American students to learn more, but that it would make schools less accountable, remove incentives for remediation, and “reduce the value of a high school diploma in Texas.”

Dr. Phillips concluded that TAAS “did not create the social problems faced by minority groups but has contributed to their improvement.” She said the test should be retained because “its benefits to minority students far outweigh its alleged and unproven social costs.”

MEHRENS TESTIMONY

Dr. Mehrens—a colleague of Dr. Phillips at Michigan State University—testified that “tests must be judged against reasonable standards” and that “TAAS has been constructed in a professionally accepted manner.” TAAS tests curricular material that the state views as important for graduates to have mastered and, indeed, Dr. Mehrens concluded that without a requirement like TAAS students might graduate without having achieved what the state has deemed to be a set of minimal requirements. Students have had ample opportunity to learn the materials TAAS tests on, and providing instruction over the objectives tested by TAAS is to be applauded, not condemned. Dr. Mehrens further testified that the approach taken by Texas with TAAS will help disadvantaged students and will remove vestiges of past discrimination.

Dr. Mehrens also testified that the test is reliable and that the eight opportunities students have to take the test ensures that the possibility of not passing due to random error is almost zero (and, indeed, means that some students who shouldn’t pass, will). He resolved several other technical issues—regarding validity, potential bias, adverse impact data, and the appropriate decisionmaking model—in TAAS’s favor.

Finally, Dr. Mehrens testified that standard setting is a judgmental process. Those in authority should make this judgment, he said, and the State Board of Education had sufficient information to set the cut score.

PORTER TESTIMONY

The third witness was Dr. Rosalie Pedalino Porter, an expert on bilingual education and the editor of READ Perspectives. Dr. Porter testified that “the accountability element” is “often lacking” in “bilingual program evaluation.” She discussed in particular her experiences in Massachusetts, which are illuminating.

Dr. Porter stated, “Exempting whole groups of students from state-wide assessments on the expectation that they will not perform adequately is unfair to the students who are excluded, as well as to their classmates.” Furthermore, “Maintaining rigorous standards and high expectations for minority students requires that periodic assessments of each student’s progress be conducted and reported.”

Dr. Porter concluded that the TAAS program “is a fair test of student learning,” and noted that “minority students have registered consistently higher passing levels on the 10th grade test each year since 1995, showing more rapid rates of improvement than for White non-Hispanic students.” “To suggest that students should be granted high school diplomas without demonstrating minimal knowledge and skills on a uniform measure,” she continued, “is not acceptable for the current requirements of the technological/information age job market or for pursuing higher education.” Dr. Porter characterized an opposing witness’s complaint regarding time wasted on “teaching the test” as “a harmful exaggeration.”

THE COURT’S RULING

Judge Prado decided, after “much reflection,” that “the TAAS examination does not have an impermissible adverse impact on Texas’s minority students and does not violate their right to the due process of law.” (The plaintiffs’ other claims had already been dismissed by Judge Prado in an order dated July 27, 1999.) At the end of the judge’s introduction, he concluded that “the Plaintiffs failed to prove that the [challenged] policies are unconstitutional, that the adverse impact is avoidable or more significant that the concomitant positive impact, or that other approaches would meet the State’s articulated legitimate goals.” (Emphasis in the original.)

“The court has no authority to tell the state of Texas what a well-educated high-school graduate should demonstrably know at the end of 12 years of education,” Judge Prado wrote. “Ultimately, resolution of this case turns not on the validity of the parties’ views on education but on the state’s right to pursue educational policies that it legitimately believes are in the best interest of Texas students.”

Judge Prado’s order made extensive findings of fact about TAAS. On the disparate impact issue in particular, he wrote:

The Court finds as an inescapable conclusion that in every administration of the TAAS test since October 1990, Hispanic and African American students have performed significantly worse on all three sections of the exit exam than majority students. However, the Court also finds that it is highly significant that minority students have continued to narrow the passing rate gap at a rapid rate. In addition, minority students have made gains on other measures of academic progress, such as the National Assessment of Educational Progress test. The number of minority students taking college entrance examinations has also increased.

…. The Court finds that failure of the exit-level TAAS examination during the first seven administrations results in immediate remedial efforts. At the last administration, of course, failure of the exit-level TAAS examination results in failure to receive a diploma. However, the Court finds, based on evidence presented at trial, that the effect of remediation, which is usually eventual success in passing the examination and thus receipt of a high school diploma, is more profound than the steadily decreasing minority failure rate.

Judge Prado’s conclusions of law addressed, first, the disparate-impact claims under the Title VI regulations and, second, the due-process claims under the Fourteenth Amendment to the U.S. Constitution. With respect to the former, he found: “While the TAAS test does adversely affect minority students in significant numbers, the TEA has demonstrated an educational necessity for the test, and the Plaintiffs have failed to identify equally effective alternatives.” With respect to the latter, Judge Prado wrote:

The TEA has provided adequate notice of the consequences of the exam and has ensured that the exam is strongly correlated to material actually taught in the classroom. In addition, the test is valid and in keeping with current educational norms. Finally, the test does not perpetuate prior educational discrimination or unfairly hold Texas minority students accountable for the failures of the State’s educational system. Instead, the test seeks to identify inequities and address them. It is not for this Court to determine whether Texas has chosen the best of all possible means for achieving these goals. The system is not perfect, but the Court cannot say it is unconstitutional.

Judge Prado also noted, “The results of TAAS are used, in many cases quite effectively, to motivate not only students but schools and teachers to raise and meet educational standards.”

THE FUNDAMENTAL PROBLEMS WITH DISPARATE-IMPACT LAWSUITS

The rejection of MALDEF’s claim in GI Forum is good news for anyone who cares about education or civil rights. The whole disparate-impact approach to civil rights litigation is fundamentally flawed. MALDEF’s asserted—that TAAS ought to be ruled illegal because a disproportionate number of black and Mexican Americans fail to pass it, even though the same test was given in the same way to all students and was drawn up with no racial or ethnic animus. This claim should be rejected out of hand, as a matter of both law and policy.

Three Kinds of “Discrimination”

There are three kinds of racial and ethnic discrimination that can be held illegal under our federal civil rights laws. The relevant statute here is Title VI of the Civil Rights Act of 1964. It reads: “No person in the United States shall, on the ground 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.”

The first kind, illegal discrimination, is holding people to different standards, depending on the color of their skin or where their ancestors came from. If you have a double standard based on race or ethnicity, everyone would agree that this is discrimination in any normal use of the term.

A second kind of discrimination that violates federal civil rights laws is when someone chooses a selection criterion because of the racial or ethnic impact it will have. For instance, if a school was told to desegregate and then suddenly decided to change its admission criteria in order to keep out blacks, that would clearly violate the law, even if the new criteria were neutral on their face.

Here is a recent example. The U.S. Court of Appeals for the Fifth Circuit in Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), cert. denied, 116 S. Ct. 2581 (1997), held that the state could not use racial and ethnic admissions preferences. Texas decided, in the wake of the decision, that it would no longer consider SAT scores for the top 10 percent of each high school class. It made clear that it was changing the standard in order to ensure that more blacks and Hispanics, and thus fewer whites and Asians, were admitted. In doing so, then, Texas was clearly violating the law. MALDEF, of course, made no complaint about the new Texas law.

This leaves a third kind of discrimination, namely “disparate impact.” Under this approach, a selection device that is neutral on its face, and that is applied neutrally, and that was chosen with no discriminatory animus, is nonetheless presumed to be illegal if it has a disproportionate effect on some racial or ethnic group.

No normal person would consider a test in such circumstances to be “discrimination” under any reasonable definition of the term. The Supreme Court has made clear that Title VI itself bans only intentional discrimination—that is, only the first two kinds of discrimination discussed. See United States v. Fordice, 505 U.S. 717, 732 n.7 (1992), citing Regents of the University of California v. Bakke, 463 U.S. 265 (1978), and Guardians Association v. Civil Service Commission of City of New York, 463 U.S. 582 (1983). See also Washington v. Davis, 426 U.S. 229 (1976), and Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977).

Nonetheless, MALDEF has decided to challenge standardized tests if they have a “disparate impact.” The disparate impact approach is dubious enough in employment law, where it began and should not be extended to other areas, particularly education.

Policy Objections to the Disparate-Impact Approach

Unfortunately, there is judicial and regulatory support for applying the disparate-impact model to education, although there is a good chance that it will be rejected out of hand if it reaches the Supreme Court. In any event, Judge Prado was correct in finding that MALDEF had failed to make a credible claim even if the premise of the disparate-impact approach is accepted.

And, legal theory aside, the approach is bad educational policy. As Abigail Thernstrom wrote in a New York Times op-ed (June 10, 1999), “Removing the tests simply shoots the messenger and undermines the drives to raise academic standards.” There are racial and ethnic gaps in educational achievement, and those gaps won’t be closed by pretending they don’t exist or attempting to “litigate them away” (as a Washington Post editorial, December 25, 1999, put it). Instead, competition and accountability among schools should be encouraged through choice, illegitimacy rates lowered (they are around 70 percent for blacks—triple that for non-Hispanic whites), and an end put to the notion that studying hard is “acting white.”

Disparate impact theory has always been a bad idea. The focus of a civil rights suit ought to be on whether people of different races are treated differently because of their race. That is the commonsense and dictionary meaning of “discrimination,” and that is what the 1964 act clearly said and meant. The question of intent, rather than incidental effect, ought to be at the heart of every lawsuit. The ultimate question ought be whether there is actually discrimination—not whether there is failure to achieve racial and ethnic proportionality.

Educators in disparate-impact suits do have the opportunity to rebut the plaintiffs’ case by proving that a challenged test is justified by “educational necessity.” But it is risky to go to court, trying to prove to a judge or jury—who will know nothing about one’s educational enterprise—that the test is a “necessity.” Moreover, the technical “validation” frequently insisted on by civil-rights plaintiffs, enforcement bureaucrats, or federal judges is often impossible. And, conversely, it is almost always possible that a plaintiff in a particular racial or ethnic group can come up with a slightly different test or cut score that will diminish the impact on that group while still serving to some extent the educator’s end, even if not as well.

In many cases, the use of the disparate impact approach will result in a federal agency dictating the test. Any educator will want to test students in a way that will not be challenged by the deep-pocketed grantors and litigators from the federal government. Only they can determine what test will meet their approval, and they will be quite happy to share their advice.

But what is really rotten at the core of disparate-impact theory is this: Under the guise of combating the oxymoronic problem of “unintended discrimination,” the theory requires deliberate discrimination. It requires tests to be chosen with an eye on the racial and ethnic bottom line. Such a practice would be condemned as discriminatory under any other circumstances—and rightly so.

There are other consequences of the disparate-impact approach that might give its supporters some pause, even if the lowering of standards is unlikely to offend the civil-rights establishment.

If it is true, for instance, that Hispanics fail in disproportionate numbers to meet the standards necessary for graduation from high school, then it makes more sense to address this problem directly rather than sweep it under the rug by requiring educators to ignore it. Theoretically, of course, it might be possible to solve the underlying problem while prohibiting tests with a disparate impact, but as a practical matter the latter will undermine the former.

Just about any test is likely to have a disparate impact on some group, whether because of race (remember: whites could sue, too), sex (males can also sue), ethnicity, religion, age, or disability—any of which could be asserted as the basis of a federal lawsuit. And that lawsuit is unlikely to be in the interests of every historically aggrieved group.

The disparate-impact approach also encourages the already widespread tendency, on the right and left, to view every social problem through a racial lens. The mindset that sees the world in minority-versus-white terms is bad for race relations generally, of course, but the biggest losers when this approach holds sway are minorities. When standards must be lowered because of “them,” it breeds resentment and stigmatization.

The use of standardized tests can raise difficult issues, but they are issues for educators and parents, not civil-rights lawyers. It is time congress should pass legislation banning the use of disparate-impact theory under Title VI. Schools and parents should be left alone to make educational policy decisions.

REFERENCES

Chavez, Linda. “Boost of Education Reform,” Washington Times, January 13, 2000, at page A13.

Clegg, Roger. “The Bad Law of ‘Disparate Impact,’” The Public Interest, Winter 2000 at pp. 79-90.

Clegg, Roger. 2000. “OCR’s (Mis)Guidance: Anti-Education, Anti-Civil Rights, ” The Federalist Society Civil Rights News. Winter 2000, at pp. 1-3.