In what some are terming a landmark decision, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit late last month upheld a lower-court ruling that prohibits California school districts from using iq tests to evaluate black students for placement in special-education classes on the grounds that the tests are culturally biased.
In affirming the 1979 decision of U.S. District Judge Robert F. Peckham, the appellate panel, by a 2-to-1 vote, held that the state “did not take reasonable steps to ensure that non-discriminatory methods” were used to identify and place black students in classes for the “educable mentally retarded” and did not make a reasonable attempt “to alleviate existing disproportionate enrollment.”
Donald Bersoff, counsel for the American Psychological Association, said the case is the first in which courts have examined the validity of individual intelligence tests for minority students and offered an interpretation of federal regulations requiring that the tests be validated for the specific uses to which they are to be put.
“I think it establishes an important case and also a warning to people who use the test in school,” Mr. Bersoff asserted.
Technically, the appellate court’s decision in Larry P. v. Riles is binding only on school districts in Arizona, Idaho, Montana, Nevada, Oregon, and Washington State. But because of educators’ increasing reliance on standardized tests for the evaluation and placement of students, the case has attracted considerable attention nationwide, and the decision may be used as a guideline in districts outside the Ninth Circuit’s jurisdiction.
“The decision was based on federal regulation, and I would think it would mean an open-and-shut case,” said Armando Menocal of Public Advocates Inc., the lawyer for the plaintiffs. “Any state that continues [to use intelligence tests to evaluate handicapped students] is acting in jeopardy,” he added.
“One of the most common misinterpretations,” Mr. Menocal noted, “is that most [school officials] say they don’t rely solely on the iq” Contrary to the contentions of California authorities, he explained, the court found that the iq test has a “predominant influence in placements and cannot be used.”
The class action was filed in the federal district court in 1971 on behalf of six black elementary students in the San Francisco Unified School District and was later expanded to include all black children in the state who were placed in classes for the educable mentally retarded (emr classes).
The plaintiffs charged that the use of intelligence tests to place black children in such classes violated Title VI of the Civil Rights Act of 1964, the Rehabilitation Act of 1973, the Education for All Handicapped Children Act of 1975 (P.L. 94-142), and the equal-protection clauses of both the state and federal constitutions.
The lawyer for the plaintiffs ar-gued that between 1968 and 1977, black children were overrepresented in emr classes. In 1968-69, for example, black children represented about 9 percent of the school-age population in the state and 27 percent of all public-school students in emr classes.
During the trial, officials for the California Department of Education argued that black students’ low iq scores were the result of blacks’ lower socio-economic status and that their placement in emr classes was not based solely on the use of the standardized-test results.
The department used 12 separate iq tests, but, according to court documents, the Stanford-Binet test and the Wechsler Intelligence Scale for Children--the two most widely used testing instruments in the country--were the primary tests used.
In rejecting the state education department’s arguments, Judge Peckham relied on “historical background” showing cultural bias in standardized tests and on expert witnesses who testified that the students’ school records “contained insufficient evidence” that school personnel had considered the students’ educational, health, and development histories, or data on their social progress or their cultural backgrounds.
Judge Peckham said that there is “less than a one-in-a-million chance that the over-enrollment of black children and the under-enrollment of nonblack children in the emr classes in 1976-77 would have resulted under a color-blind system.”
Judge Peckham noted that even “if it is assumed that black children have a 50-percent greater incidence of this type of mental retardation, there is still less than a one-in-100,000 chance that the enrollment could be so skewed towards black children.”
As a remedy, Judge Peckham ordered that all school districts in the state discontinue their use of intelligence tests to identify and place black children, that they re-evaluate all black children previously identified as educable mentally retarded, and that they develop three-year plans designed to correct the imbalance.
Since 1979, California school districts have eliminated emr as a classification for placement in special-education classes and have instituted categories of “learning disabled” and “mentally retarded,’' according to Kathryn J. Ross, a special-education administrator for the state department of education.
Ms. Ross said the lower court’s decision created a “practical dilemma” for school officials because they were “forbidden” to use iq tests. “I think professionals in the field would say they’ve been denied a valuable tool,” she added.
Although there are numerous court decisions prohibiting the use of discriminatory tests in hiring, according to Mr. Bersoff, the courts, in general, have been silent on the va-lidity of testing in the schools. Several years ago, he added, a federal judge ruled in pase (Parents in Action for Special Education) v. Hannon that the Chicago school system could continue to use iq tests to evaluate minority students for placement in programs for handicapped students.
In another case, Debra P. v. Turlington, a federal district judge last spring upheld the state of Florida’s requirement that all high-school students pass a minimum-competency test before receiving a diploma. (See Education Week, May 11, 1983.)
The plaintiffs, who were primarily black students, had charged that the tests were culturally biased and that “vestiges of segregation” hampered their ability to score at the levels of their white peers. They are appealing the district court’s ruling.
According to Mr. Bersoff, the decision in the Larry P. case does not resolve the issues surrounding how tests are used by schools, but it ''sets up the possiblity of a review by the U.S. Supreme Court later in the decade.”
The full text of the opinion in the Larry P. case is reproduced in the Education for the Handicapped Law Report, Supplement 113, page 555:304.
A version of this article appeared in the February 08, 1984 edition of Education Week as Court Finds I.Q. Tests Racially Biased for Black Pupils’ Placement