Educational Equity and High Stakes Testing Stefan Rosenzweig, CLMER November 2005 email@example.com 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.