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Educational Equity and High Stak

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					Educational Equity and High
Stakes Testing

    Stefan Rosenzweig, CLMER
          November 2005
       srosenzw@csulb.edu
Civil Rights: A Chronology
(http://www.civilrights.org)
   1619: A year before the Mayflower, the first 20
    African slaves are sold to settlers in Virginia as
    “indentured servants.”
   1789: Constitution adopted; slaves counted as
    three-fifths of a person for means of
    representation
   1863: January 1, Lincoln signs the Emancipation
    Proclamation.
   1868: Fourteenth Amendment, making African
    Americans full citizens of the United States and
    prohibiting states from denying them equal
    protection of the law, is ratified. Congress reports
Chronology (cont.)
   1896 - The Supreme Court, in Plessy v.
    Ferguson, rules that state laws requiring
    separation of the races are within the bounds of
    the Constitution as long as equal
    accommodations are made for African
    Americans, thus establishing the “separate but
    equal” doctrine that justifies legal segregation in
    the South.
Chronology (cont.)
   1900: Between 1886 and 1900, there are more
    than 2,500 lynchings in the nation….In the first
    year of the new century, more than 100 African
    Americans are lynched, and by World War 1,
    more than 1100.
   1954: In Brown v. Board of Education, the
    decision widely regarded as having sparked the
    modern civil rights era, the Supreme Court rules
    deliberate public school segregation illegal,
    effectively overturning “separate but equal”
    doctrine….
   1961: Executive Order 10925 (Kennedy) requires
    federal Contractors to take “affirmative action, to
    ensure that applicants are employed, and that
    employees are treated during employment,
    without regard to their race,creed,color, or
    national origin.”
   1964: Title VI, Civil Rights Act of 1964: “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.”
   1965: Executive Order 11246 (Johnson) requires
    federal contractors to adopt and implement
    “affirmative action programs.”
   1971: Dept. of Labor Revised Order No.4 (Nixon)
    requires that all federal Contractors develop an
    “acceptable affirmative action program” with
    goals and timetables. Quotas are prohibited.
   1972: Title IX of the Education Amendments
    prohibit sex discrimination in schools receiving
    federal funds. Regulations authorize affirmative
    action to overcome the specific effects of past
    discrimination.
   1974: U.S. Supreme Court in Lau v. Nichols,
    “there is no equality of treatment merely by
    providing students with the same
    facilities,textbooks, teachers and curriculum.”
   1978: U.S. Supreme Court, in Regents of the
    University of California v. Bakke, scrutinizes a
    medical school admissions program that reserved
    16 spots in each class for racial minorities. Court
    holds that racial quotas and set-asides are
    unconstitutional. Justice Powell’s opinion
    recognized that diversity is a compelling
    governmental interest.
   1982: The Equal Rights Amendment, which
    would have written into the Constitution a ban on
    sexual bias and a guarantee of equal
    opportunity, fails three states short of
    ratification.
   1989: U.S. Supreme Court, in City of Richmond
    v. J.A. Croson Co., holds that public employers’
    affirmative action programs must be justified by
    and narrowly tailored to remedy specific evidence
    of past discrimination.
   1994: U.S. Supreme Court in Adarand
    Constructors, Inc. v. Peña, holds that
    government actions based on race must be
    subjected to “strict scrutiny”, “a detailed judicial
    inquiry.”
   1996: California voters enact Prop. 209,
    prohibiting “preferential treatment to, any
    individual or group on the basis of race,…in the
    operation of public employment, public education
    or public contracting.” California state courts
    have found several programs including outreach
    policies and school transfer programs illegal.
Grutter v. Bollinger, 123
S.Ct.2325 (2003) and Gratz v.
Bollinger, 123S.Ct.
2411(2003)
Grutter upholds University Law
School Admissions 5-4:
   The Court reaffirms Justice Powell’s position in
    Bakke that promoting educational diversity in
    higher education is a compelling interest that can
    justify the use of race in admissions and that
    race can be used as a “plus” factor in competitive
    admissions processes.
Grutter upholds University Law
School Admissions 5-4:
   The Court reaffirms Justice Powell’s position in
    Bakke that promoting educational diversity in
    higher education is a compelling interest that can
    justify the use of race in admissions and that
    race can be used as a “plus” factor in competitive
    admissions processes.
       Gratz rejects University
undergraduate admissions policy
6-3
   Policies failed to provide a sufficiently
    individualized consideration of
    candidate’s overall qualifications in
    seeking to promote diversity.
HIGH STAKES TESTING
Misclassification: “Retarded”

   Diana v. California Bd. Of Education (U.S.Dist.
    Ct. N.D. of Ca. 1970)“Linguistic Bias”: Mexican-
    American Spanish Speaking students diagnosed with English IQ tests
    over represented in classes for the “educable mentally retarded” (EMR)
    throughout California. Tests and EMR curriculum not reflective of
    students culture or language. Suit settled by state: “It is the intent of
    the State Board of Education that all children who came from homes in
    which the primary spoken language is other than English shall be
    interviewed, and examined, both in English and in the primary
    language used in his home. The examiner should take cognizance of
    the child’s differential language facility. Any assessment of the child’s
    intellectual functioning should be made on the basis of the spoken
    language most familiar to the child. In determining the intellectual
    functioning of a child whose primary language is other than English, it
    is recommended that the examiner utilize more than one instrument
    and include, tests with performance scales.”
Misclassification: “Retarded”
   Larry P. v. Riles,495 F. Supp.926 (U.S. Dist.
    Ct. N.D., Ca 1979), “Racial and Cultural Bias”:
    Judge Robert Peckham reviews history of IQ testing and finds its historical
    linkage to genetic notions of racial differences in intelligence. Holds that
    standardized intelligence tests “are racially and culturally biased, have a
    discriminatory impact against black children, and have not been validated for
    the purpose of essentially permanent placements of black children into
    educationally dead-end classes for the so-called educable mentally retarded.”

   Prohibition on IQ testing on African-American school children still enforced by
    CA Dept of Education.
  High – Stakes Testing

     Current Research:
           Claude M.Steele, Chair, Dept.of Psychology, Stanford U.
Stereotype threat and test performance. My research, and that of my
colleagues, has isolated a factor that can depress the standardized test
performance of minority students--a factor we call stereotype threat. This refers
to the experience of being in a situation where one recognizes that a negative
stereotype about one's group is applicable to oneself. When this happens, one
knows that one could be judged or treated in terms of that stereotype, or that
one could inadvertently do something that would confirm it. In situations
where one cares very much about one's performance or related outcomes--as in
the case of serious students taking the SAT--this threat of being negatively
stereotyped can be upsetting and distracting. Our research confirms that when
this threat occurs in the midst of taking a high stakes standardized test, it
directly interferes with performance.
www.umich.edu/~urel/admissions/legal/expert/steele.html
   William C. Kidder, “Does the LSAT Mirror or Magnify Racial and Ethnic
    Differences in Educational Attainment?: A Study of Equally Achieving
    Elite College Students,89 Cal. L.Rev.1095 (2001):

        Racial gap of LSAT scores of white students, compared to students of color,
         significantly greater than GPAs for similarly situated college students.
California High School Exit Examination
(CAHSEE), http://www.cde.ca.gov/statetests/cahsee
“The primary purpose of the California High School Exit
   Examination (CAHSEE) is to significantly improve pupil
   achievement in public high schools and to ensure that pupils
   who graduate from public high schools can demonstrate grade
   level competency in reading, writing, and mathematics. The
   CAHSEE helps identify students who are not developing skills
   that are essential for life after high school and encourages
   districts to give these students the attention and resources
   needed to help them achieve these skills during their high
   school years. Beginning in the 2005-2006 school year, no
   student will receive a public high school diploma without having
   passed the CAHSEE, as well as having met the district’s
   requirements for graduation…
         In addition,…the…CAHSEE will continue to be used in
   calculating the Academic Performance Index for state
   accountability purposes and Adequate Yearly Progress to meet
   federal No Child Left Behind requirements.”
Center on Education Policy, State High School
Exit Exams, A Baseline Report, (August 2002)
http://www.ctredpol.org


   “Advocates say these exams will motivate students to work
    harder and help teachers identify and address student
    weaknesses. Critics contend, however, that these tests lead to
    higher dropout rates, place too much weight on a single
    imperfect measure, and do nothing to ensure that students
    have an opportunity to learn the material being tested.”

   “[Federal] and state laws now require students with disabilities
    and English language learners to have access to the general
    curriculum, whenever appropriate and to be included in state
    assessments…States and school districts must also offer testing
    accommodations, where necessary , to [such students]. For
    some of these students : a conventional exit exam may not be a
    valid measure of what they know and can do. It is particularly
    critical that these students have alternate routes for
    demonstrating mastery – in other words, multiple measures for
    high-stakes graduation decisions.”
Proving Discrimination
   Statutory (Title VI):
      Different Treatment

      Disparate Impact (? Unclear whether is still

       good law and are questions as to who can
       raise argument?)
         Statistically significant disproportionate

          adverse effect
         Educationally necessity or justification

         Equally effective alternative practice.
Proving Discrimination (cont.)
   Constitution (Due Process/Equal Protection):
       Procedural: Notice and an opportunity to be heard
        before the state deprives citizens of a protected
        interest.
       Substantive: Some rights are so profoundly inherent in
        American justice that they cannot be limited or
        deprived arbitrarily.
       Property Interest in Diploma: both procedural and
        substantive Due Process implicated.
       Notice and an opportunity to learn
       Three issues:
            Purpose of program legitimate?
            Have students received adequate notice?
            Is test aligned with instruction?
GI Forum v. Texas Education Agency, 87
F.Supp.667 (W.D.Tex. 2000)
   “…,the Court has been required to apply a body of law
    that has not always provided clear guidance, It is clear
    that the law requires courts to give deference to state
    legislative policy,…in the educational context such
    deference is even more warranted, see San Antonio
    Indep. Sch,. Dist. v. Rodriquez, 411 U.S. 1 (1973).
    Education is the particular responsibility of state
    governments. Moreover, courts do not have the expertise,
    or the mandate of the electorate, that would justify
    unwarranted intrusion in curricular decisions.”

   Court distinguishes leading case, Debra P. v. Turlington,
    664 F.2d 397 (5th Cir. 1981)
GI Forum holdings:
Title VI regulations not violated:
“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 offer equally effective alternatives”…that
    “could sufficiently motivate students to perform students to perform to
    their highest ability….In addition, and perhaps more importantly, the
    present use of the TAAS test motivates schools and teachers to provide an
    adequate and fair education, at least of the minimum skills required by the
    State,to all students.
Constitution not violated:
“In addition, the Court concludes that the TAAS test violates neither the
    procedural nor the substantive due process rights of the Plaintiffs. 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 to 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 that it is
Special Populations
   Students with Disabilities
       Chapman v. CDE (U.S. Dist Ct, N.D.CA)
          Challenge by learning disabled students to CAHSEE
         Holding that: “First, it appears that the IDEA requires
           school districts to permit students to take the CAHSEE
           with appropriate accommodations. Second, under the
           IDEA it appears that the State must provide an alternate
           assessment to the CAHSEE to students who are unable
           to access the test due to a learning disability.”
         August 26, 2005: Agreement entered allowing students of
           the class of ’06 to graduate without passing the exit
           exam.
Special Populations (cont.)
   Limited English Proficient/English Language
    Learners:
       No legal precedents to date.
       Big issue: Is the test valid; is it measuring
        academic knowledge and skills or English skills?
       Tests in primary language are rare. Translations
        questionable.
       Testing accommodations may not be allowed and
        even if allowed may be ineffective.
       Accommodations might include:
            Extra time, timing/scheduling, setting, presentation or
             response, use of dictionaries, glossaries.
    Alexander v. Sandoval, 532 U.S.275 (2001),
    S.2088: The Fairness Act,Civil Rights Act of
    2004
   Sandoval: Title VI of the Civil Rights Act of 1964 prohibits federally
    funded programs (most schools, districts,colleges) from discriminating
    on the basis of race,color or national origin. In Sandoval the U.S.
    Supreme Court held that Title VI does not permit individuals to sue to
    stop practices that appear neutral on their face but have the effect of
    discriminating. (disparate impact). Only the U.S. Government can file
    such suits. Individual suits will only be entertained if the plaintiffs can
    prove “intentional” discrimination.
   The ruling has been extended to gender discrimination under Title IX
   “The Fairness Act” has been introduced into Congress to overrule
    Sandoval and to remedy several other issues of concern regarding civil
    rights. See http://www.civilrights.org.

				
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