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Arkansas Union Drops Suit Over Teacher Tests

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One of the first and most acrimonious legal disputes over the issue of competency tests for practicing teachers ended this month when the Arkansas affiliate of the National Education Association withdrew a federal lawsuit seeking to halt the state's testing program.

The suit was dropped because lawyers for the union could find no significant difference between the final passing rates of blacks and whites on the controversial test of basic skills in mathematics, reading, and writing, union officials said.

The Arkansas Education Association, arguing that the test discriminated against black educators in violation of Title VII of the the U.S. Civil Rights Act of 1964, had filed the suit in May 1986 with legal assistance from the nea

Field testing of the Arkansas Educational Skills Assessment, which educators in the state were required to pass by June 1 of this year to renew their certification, had predicted that blacks would fail the test at a higher rate than whites.

But after numerous administrations of the exam and a concerted effort by the state to provide remediation for those who failed it initially, the vast majority of educators--both black and white--passed by the cutoff date.

"The suit is being withdrawn because research conducted by associ4ation attorneys in preparation for trial showed that the legally required test for adverse impact could not be met in this case," Ed Bullington, president of the aea, said in a Nov. 9 statement.

He noted, however, that the withdrawal of the suit did not mean "that the aea in any way sanctions the use of the [exam] to determine who should teach in Arkansas."

The union "continues to be convinced that [the exam] was not a valid measure of teaching competence and accomplished no educational goal,'' he added.

Both the nea and the American Federation of Teachers have endorsed the idea of testing prospective teachers before certification, but both organizations strongly oppose the testing of practicing teachers.

Three Lawsuits

Despite union opposition, lawmakers in three states--Arkansas, Georgia, and Texas--have approved legis8lation in recent years requiring practicing teachers to pass a test of basic skills to retain their credentials. In all three states, affiliates of the nea, claiming that the tests had a disproportionately adverse impact on minorities, filed suit in federal court in attempts to block them.

The Texas suit was withdrawn a year ago, for the same reason the Arkansas case was dropped, according to Robert Chanin, general counsel for the nea No significant disparate impact on minorities could be shown, he said. (See Education Week, Sept. 24, 1986.)

More than 95 percent of the blacks and 99 percent of the Hispanics tested passed the Texas exam by the cutoff date, as did all the minority plaintiffs in the case.

In Georgia, however, "the testing program is having significant adverse racial impact," Mr. Chanin noted.

"We are going to trial on that one," probably next summer, he said last week.

The union has challenged the tests in court, Mr. Chanin said, "to protect the interests of our members, and attack what we believe is a discriminatory practice that would have a severe adverse impact on black educators."

Union leaders also argue that the "competency" tests are not predictors of on-the-job performance and that it is an "insult" to require certified teachers pass them.

Mr. Chanin said nea officials were "troubled" that hundreds of teachers in Arkansas and Texas lost their jobs for failing to pass the tests by the cutoff dates, but added that he did not believe withdrawing the suits in those states constituted a defeat for the union or teachers.

'It Was a Waste'

"Winning the case is important, but we don't want to achieve that over the dead bodies of teachers," the lawyer said. "The overwhelming majority of blacks and whites passed, and that is preferable to having 40 percent of the blacks fail, giving us a dynamite lawsuit."

"We would rather end up with a small failure rate," he continued, ''even if it undercuts the underpinnings of our suit."

Regarding the testing policy in Arkansas, he said: "We think it is a bad program. It has proved nothing. It caused teachers a lot of grief. And it was a waste of time, effort, and money."

"But we simply did not have the basis for a lawsuit," he said.

Arkansas officials estimate that the testing and state-sponsored remediation efforts cost a total of nearly $1 million.

Racial Figures Not Disclosed

Of the 37,000 certified school employees who took the Arkansas tests, roughly 1,300--or 3.5 perinued on Following Page Continued from Preceding Page


cent--failed to pass by the June 1 deadline, according to Clearence E. Lovell, who was manager for certification and testing for the state department of education during the testing period.

Mr. Lovell, who is now the department's associate director of federal programs, said the state has no figures on the percentage of minority teachers who failed the test.

"We don't know the racial breakdown," he said, "and we never wanted to know it."

Findings Not Made Public Lawyers for the union calculated the pass-fail rate along racial lines from data obtained from the company that scored the test, but have not made the findings public.

"We just don't see a good reason to release it," said Karla Feeley, a spokesman for the aea

Mr. Lovell argued that "there was no way to make the assertion that the test discriminates against blacks."

"It is an easy test," he said. "The items were basic-skill items. I don't think that testing whether a person can add, subtract, read, and write is related to race."

Mr. Chanin countered, however, that the legal issue of discrimination hinges not on a test's degree of difficulty, but on whether members of minority groups fail at a disproportionately higher rate than whites.

'Restored Credibility'

On the issue of the test's intrinsic merit as a means of ensuring teacher quality, Mr. Lovell disputed union officials' contention that it accomplished nothing.

"I think it restored the credibility of the teaching profession" in Arkansas, he argued.

"A lot of people actually thought there were large numbers of teachers in this state who couldn't pass a basic-skills test. These results show that this isn't true."

The test was worthwhile even though nearly all teachers passed, added W. James Popham, director of iox Assessment Associates, the firm that produced the exam.

"The test eliminated a flock of teachers who couldn't read or write," he said.

"You count the number of kids 1,300 teachers who can't read or write" come into contact with each year and "it's incredible."

"If your child happens to be one of those kids, then it's worth every penny you spend on it," Mr. Popham added.

Arkansas officials acknowledge, however, that a large number of the educators who failed to pass the exam, even after several tries, may retain their jobs for several more years.

As stipulated in the 1985 law, teachers, administrators, and other certified school employees who failed the test will not be forced from their jobs until their certification expires.

"We felt in talking with our [lawyers] that we had a contract with these people," Mr. Lovell said.

"We couldn't legally go in and take certification back once we had given it."

He also noted that an undetermined number of teachers refused to take the test at all.

"After their certification expires they will not be eligible" to teach, he said.

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