Abstract
Public policy makers dealing with testing issues often assume that test scores measure “innate intelligence” or “competence” in a scientifically objective way, much as thermometers invariably gauge the correct temperature. In fact, however, tests measure only limited domains of knowledge, in certain specific ways; their accuracy and their usefulness depend on the manner in which they are constructed and on how their results are interpreted. This is precisely why issues of test construction and test use often become controversial public policy concerns.
B.A., Harvard,1965; LL.B., Yale, 1970; Partner, Rebell and Katzive, Attorneys at Law, New York, New York; Visiting Lecturer in Law, Yale Law School. The author has represented plaintiffs in a number of testing and special education cases, and he has also served as counsel to the testing company whose producs were the subject of the Alabama litigation discussed in §B2 of the article. The author would like to thank the following inidviduals for their helpful comments and suggestions: Jaclyn Frankfurt, Berard R Gifford, William P Gorth, William Mehrens, Edward Opton, Jr., Daniel J. Reschly, and Rhoda Schneider.
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References
J. Liberman, The Litigious Society 5 (1981).
U.S. 483. For case study analyses of the role of the federal district courts in desegregation cases, see H. Kalodner and J. Fishman, Limits of Justice (1978).
See, for example, Wyatt v. Stickney, 344 F.Supp. 373 (M.D. Ala. 1972), aff’d in part sub. nom. Wyatt v. Adenholt, 503 F.2d 1305 (5th Cir. 1974); Halderman v. Pennhurst State School and Hosp., 451 U.S. 1 (1981), 465 U.S. 89 (1984). See also H. Rothman and S. Rothman, The Willowbrook Wars (1984).
See, for example, L. Friedman, Total justice (1985)
S. Huntington, American Politics: The Promise of Disharmony (1981); Fiss, “Foreward: The Forms of Justice,” 93 Harv. L. Rev. 1 (1979); M. Rebell, “Judicial Activism and the Courts’ New Role,” Social Policy 24 (Spring 1982).
For discussion of the separation of powers issues raised by judicial activism, as well as comparisons of the functioning of the legislative, administrative, and judicial branches on social policy issues, see M. Rebell and A. Block, Educational Policy Making and the Courts: An Empirical Study of Judicial Activism (1982) (hereinafter referred to as EPAC)
and M. Rebell and A. Block, Equality and Education: Federal Civil Rights Enforcement in the New York City School System (1985).
See also D. Horowitz, The Courts and Social Policy (1977); Chayes, “The Role of the Judge in Public Law Litigation,” 89 Harv. L. Rev. 1281 (1976); N. Glazer, “Towards an Imperial Judiciary?,” 41 Publ. Int. 104 (1975).
See, for example, Guardians Association of New York City v. Civil Service Comm., 630 F.2d 79 (2d Cir. 1980); Williams v. Vukovich, 720 F.2d 909 (6th Or. 1983); Vanguard Justice Society v. Hughes, 592 F.Supp. 245 (D. Md. 1984).
See, for example, Woodward v. Virginia Board of Bar Examiners, 420 F.Supp. 211 (E.D. Va. 1976), aff’d 598 F.2d 1345 (5th Cir. 1979); Tyler v. Victory, 517 F.2d 1089 (5th Cir. 1972); Chaney v. California State Bar Examiners, 386 F.2d 962 (9th Cir. 1967).
This issue is discussed in detail in M. Rebell, “Disparate Impact of Teacher Competency Testing on Minorities: Don’t Blame the Test Takers—Or the Tests,” 4 Yale L. and Pol. Rev. 375, 384–389 (1986).
See Cooper and Sobol, “Seniority and Testing Under Fair Employment Laws: A General Approach to Objective Criteria of Hiring and Promotion,” 82 Harv. L. Rev. 1598, 1637 (1969); “Special Issue: Testing and Public Policy,” 20 Amer. Psych. 857 (November 1965).
Myart v. Motorola, Inc., No. 636–27, reprinted in 110 Cong. Rec. 5662 (1964), modified sub nom. Motorola, Inc. v. FEPC, 58 L.R.R.M. 2573 (Ill. Or. Ct. 1965), rev’d, 34 I11.2d 266, 215 N.E.2d 286 (1966).
A. Blumrosen, “Strangers in Paradise: Griggs v. Duke Power Co. and the Concept of Employment Discrimination,” 71 Mich. L. Rev. 59, 97 (1972).
Albemarle v. Moody, 422 U.S. 405, 452 (1975) (Burger, C.J. dissenting in part). See, Note, “Weight of EEOC Guidelines in Evaluation of Employment Selection Procedures,” 50 Tulane L. Rev. 397 (1976).
See, for example, Arrington v. Massachusetts Bay Transportation Authority, 306 F.Supp. 1355 (D. Mass. 1969); Dobbins v. local 212, International Brotherhood of Electrical Workers, 292 F.Supp. 413 (S.D. Ohio 1968).
Griggs v. Duke Power Company, 292 F.Supp. 243, 250 (M.D. N.C. 1968).
Griggs v. Duke Power Company, 420 F.2d 1225, 1234 (4th Or. 1970).
The original version of the EEOC Guidelines was largely generated by a group of testing experts brought together for that purpose by the EEOC’s Office of Research. Blumrosen, supra note 18 at 97. Similarly, the 1978 Uniform Guidelines currently still in use, which have been jointly adopted by the EEOC and other federal executive agencies, were enacted only after consideration of voluminous written and oral testimony by individual psychologists and official representatives of the American Psychological Association (APA), the International Personnel Management Association, and more than 200 groups. See The Uniform Guidelines on Employee Selection Procedures (1978), 43 Fed. Reg. 38290, 38295 (Aug. 25, 1978) 29 C.F.R. Part 1607. For detailed discussions of the history of the development of the various versions of the APA Standards and the EEOC Guidelines, see W. Haney, “Testing Reasoning and Reasoning about Testing”, 54 Rev. Ed. Res. 597 (1984);
and M. Novick, “Ability Testing: Federal Guidelines and Professional Standards” in Ability Testing II 70, 78 (A. Wigdor and W. Garner, eds., 1982).
For example, Standard 8.7 of the 1985 version of the APA Standards appears to have adopted the concept of “instructional validation” as developed in Debra P. v. Turlington, 644 F.2d 397 (5th Or. 1981), 730 F.2d 1405 (llth Cir. 1984) and other challenges to student minimum competency testing requirements.
A study of all reported Title VII testing cases decided by the federal district courts between 1971 and 1979 indicated that for the period 1971–1976, plaintiffs were victorious in fifty-six cases, defendants in thirteen, and each side partially prevailed in the one remaining case. For cases decided from September 1976 through January 1979, plaintiffs prevailed in eighteen cases, defendants in ninteen, and five involved remands or other situations whose outcomes were as yet undetermined. M. Rebell and A. Block, Competency Assessment and the Courts: An Overview of the State of the Law (prepared for the National Institute of Education, Contract NIE-400–78–0028, ERIC No. ED 192–169 1980) at 13, 22. A more specific illustration of the impact of judicial intervention is provided by the marked improvement over time in testing practices of a municipal employer who was a defendant in two different litigations before the same judge. Compare in this regard the testing practices for selection of municipal policy officers invalidated by Judge Newman in Bridgeport Guardians v. Members of Bridgeport Civil Service Commission, 354 F.Supp. 778 (D. Conn. 1973), aff’d in relevant part, 482 F.2d 1333 (2d Or. 1973), with the same judge’s decision several years later upholding testing practices of the same defendants, Bridgeport Guardians v. Bridgeport Police Department, 431 F.Supp. 931 (D. Conn. 1977).
See M. Rebell, supra note 13 at 375.
Currently, states tend either to conduct a separate validation of the NTE for use in the particular locale, or they create a “customized” exam which is validated during the test construction process to insure that it reflects the educational priorities and practices of the particular geographic setting. See R. Flippo, “Teacher Certification Testing Across the United States and the Consideration of Some of the Issues” (paper presented at annual meeting, American Education Research Association, Chicago, 1985).
It should be noted, however, that judicial enforcement of validation standards does not appear as consistently rigorous in teacher competency cases as in the employment context. In the leading case in the area, United States v. South Carolina, 445 F.Supp. 1094 (D. S.C. 1977), aff’d 434 U.S. 1026 (1978), a three-judge panel, affirmed by the U.S. Supreme Court, upheld a validation process which related the content of the NTE to the subject matter taught in teacher training institutions in the particular state, rather than to the skills and knowledge needed for effective performance as a classroom teacher in the schools in that state, as required by the job-relatedness provisions of the EEOC Guidelines. See, for example, §14(A). Although the efforts to relate the national exam to local conditions was a marked improvement over the test’s misuse in the earlier situations, the process upheld by the Court here did not meet rigorous job-relatedness standards. See C. Haney, supra, note 32 at 44–46. The comparative lack of rigor of judicial enforcement of validation standards in the teacher compentency context may reflect the fact that the courts’ involvement in this area has been less extensive than with the employment discrimination cases. Defendants in the initial NTE cases tended to drop the contested requirements altogether, rather than submit to ongoing judicial supervision of new testing practices. Moreover, as indicated above, judicial jurisdiction over certification and licensing exams is more limited than with job selection tests. See also G. Madaus, “Measurement Specialists: Testing the Faith, A Reply to Mehrens,” 5 Edu. Measurement, 11, 14 (1986) (arguing that the adversary legal climate has impeded progress toward development of criterion-related performance measures for tests in this area).
See, for example, A. Jensen, “How Much Can We Boost IQ and Scholastic Achievement?,” 39 Haw. Ed. Rev. 1 (1969);
R. Herrnstein, “IQ,” 228 The Atlantic 43 (Sept. 1971); Comp. The New Assault on Equality: IQ and Social Stratification (A. Gartner, C. Greer and F. Riessman, eds., 1974) (collection of articles critical of Jensen/Herrnstein positions).
Although the state’s attorney was said to be personally “sympathetic” to the Jensenist view, it is clear that the defendants, especially Wilson Riles, the superintendent of public instruction, who was himself black, disavowed the genetic explanation and did not base their defense on Jensenist arguments. R. Elliot, Litigating Intelligence: IQ Tests, Special Education and Social Science in the Courtroom 45 (1987).
See 495 F.Supp. at 956–959. One commentator summarized the court’s approach as follows: Though the court rested its decision on the finding that the tests were culturally biased, it provided little hard data to support such a conclusion and was tentative in discussing it. In fact, the court’s determination that the tests contain questions biased against black children is not uniformly accepted, and there is some data to suggest that whatever discrimination there is in tests, lower scores in blacks are not the result of content bias. The court was correct in criticizing test publishers for not adequately standardizing their instruments on discrete minority populations, but beyond that, its analysis of cultural discrimination is weak and the issue certainly is not as settled as the court appears to think. D. Bersoff, “Regarding Psychologists Testily: Legal Regulation of Psychological Assessment in the Public Schools” 39 MD L. Rev. 27, 97 (1979).
See, for example, Cal. Educ. Code §56300, et seq.; The Education for all Handicapped Children Act of 1975 (EHA), 20 U.S.C. §§1400–1461 (1982 and Supp. II 1984). For histories and analyses of the EHA, see Special Education Policies (J. Chambers and W. Hartman, eds., 1983); Note, “Enforcing the Right to an ‘Appropriate’ Education: The Education for All Handicapped Children Act of 1975”, 92 Harv. L. Rev. 1103 (1979); M. Rebell, “Structural Discrimination and the Rights of the Disabled,” 74 Geo. L. Rev. 1435, 1470–1480(1986).
F.Supp. at 941. The court may have been influenced by Judge Skelly Wright’s well-known decision in Hobson v. Hansen 269 F.Supp. 401 (D. D.C. 1967), aff’d sub nom. Smuck v. Hobson, 408 F.2d 175 (D.C. Cir. 1969) which invalidated tracking practices in the Washington D.C. school district because these represented dead-end tracks for minority students. Hobson v. Hansen did not, however, deal with special education programs for handicapped students in the EHA era.
Judge Peckham noted with approval the “mainstreaming” thrust of the EHA (495 F.Supp. at 991–92), but even children with learning problems whose needs can be met by a supportive program in a regular class setting should be assessed through a procedure that can accurately measure their needs. See also Minow, “Learning to Live with the Dilemma of Difference: Bilingual and Special Education,” 48 Law and Cont. Prob. 157 (1985) (discussing the inherent tension between the educational benefits of self-contained instructional settings and the stigma of segregation).
D. Bersoff, “Larry P. and PASE: Judicial Report Cards on the Validity of Individual Intelligence Tests,” in Advances in School Psychology 62 (Krotochwill, T., ed., 1982).
See, for example, Ability Testing, Part I 18 (A. Wigdor and W. Garner, eds., 1982) (“certain social groups tend, as groups, to score consistently lower on the average than more advantaged groups.”); R. Samuda, Psychological Testing of American Minorities: Issues and Consequences 1 (1975) (“... the mean score of blacks is one standard deviation below that of whites.”)
For discussions of a number of such techniques, see Handbook of Methods for Detecting Test Bias (R.A. Berk, ed., 1982); W. Shepard, et al., “Validity of Approximation Techniques for Detecting Item Bias,” 22 J. of Ed. Measurement (1985).
M. Rebell, supra note 13 at 391–97.
See note 70, supra.
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Rebell, M.A. (1989). Testing, Public Policy, and the Courts. In: Gifford, B.R. (eds) Test Policy and the Politics of Opportunity Allocation: The Workplace and the Law. Evaluation in Education and Human Services, vol 22. Springer, Dordrecht. https://doi.org/10.1007/978-94-009-2502-1_7
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