U.S. Judge Cancels Pact in Alabama On Teacher Tests

By Lynn Olson — February 12, 1991 10 min read

A controversial court settlement that would have required Alabama to completely revamp its tests for teacher certification to prevent discrimination against blacks was thrown out of court last week by the same federal judge who had initially approved it.

The judge’s surprise action--following months of public outcry over the terms of the settlement--left educators and those involved in the litigation “stunned,” said one official.

The case, among the first to test the constitutionality of a state’s teacher-testing program, had aired many of the issues of discrimination that now surround such tests. The out-of-court settlement had been opposed by many who said it would permit incompetent teachers in the classroom.

Nonetheless, the presiding judge’s unusual about-face appeared to be totally unexpected.

As a result of the judge’s action, the more than 600 black educators who had initially been denied beginning or additional certificates because they failed the state’s professional-knowledge or subject-area examinations will now be denied the certificates the settlement would have awarded them.

They also will not receive a share of $500,000 in damages from the state required by the agreement.

The fate of more than 1,000 other individuals who took the state’s subject-area tests in December under new scoring procedures specified by the settlement was undetermined at the end of last week.

State Attorney General Charles A. Graddick has asked for the results of those tests by program and institution. He has also requested information on who would have passed the tests based on both the old and the new scoring procedures.

‘Difficult Issues’

In his order, Judge Myron Thompson of the U.S. District Court for the Middle District of Alabama, Northern Division, directed the plaintiffs to inform him as soon as possible if they decide not to appeal his decision. Judge Thompson indicated he wants to schedule a trial on the merits of the case “at the earliest possible date.”

In throwing out the settlement, the judge noted that he was forcing the parties involved into an “expensive, complex, and difficult lawsuit.” But he argued that without proof that the state had violated any federal law or unequivocally agreed to the settlement, he was reluctant to enforce changes of such magnitude or of such great public and legal significance.

By the end of last week, the plaintiffs had not decided whether to appeal the rejection of the settlement.

Series of Reversals

The judge’s reversal is one in a series of flip-flops in the case’s stormy history.

The litigation began with a class action brought in late 1981 by four black teachers and a predominantly black state university against the state board of education, its members, and the state superintendent of education.

The teachers filed the suit after a disproportionate number of black candidates failed Alabama’s teacher-certification tests when they were first given in 1981.

Plaintiffs in the case, Margaret T. Allen v. The Alabama State Board of Education, charged that the examinations discriminated against blacks and violated their constitutional and statutory rights under the 14th Amendment and federal civil-rights statutes.

Lawyers for all parties began meeting in June 1984 to discuss a possible settlement.

On April 4, 1985, Superintendent of Schools Wayne Teague called an unexpected meeting of the state board of education at which members verbally agreed to a plan. Attorneys for both sides then informed the court that a settlement had been reached.

A few days later, Mr. Graddick publicly attacked the settlement as “outrageous,” saying it would allow poor teachers into the classroom.

Allegations were flung back and forth as to whether members of the board actually had approved the settlement, with Mr. Graddick contending that no settlement could be approved except in writing.

In response to mounting criticism, the board met again on April 11 and voted 5 to 3 to reverse its earlier decision and to inform the court that the lawsuit was not settled.

The plaintiffs then asked Judge Thompson to disregard the board’s action and enforce the settlement as binding, which he did in two separate rulings in July and October.

In November, Mr. Graddick filed a motion asking the judge to reconsider his decision.

And last week, Judge Thompson granted his request and vacated all earlier orders.

In doing so, the judge essentially returned the class action to its original 1981 status.

Sweeping Change

The settlement--which has been in place since October--provided for sweeping changes in the state’s teacher-testing program.

First, it required the state to discontinue using its professional-knowledge exam. Second, it required that new subject-area tests be developed under stringent guidelines.

Those guidelines included review of the tests by a three-member expert panel for possible evidence of racial bias. In addition, a formula was developed that prevented the state from using test items that showed a substantial difference in performance by race.

While the new tests were being created, the state was allowed to continue using its current subject-area exams. However, the passing scores for the tests had to be lowered 12 points.

In addition, all black candidates who did not pass using the lowered scores were to have their college grade-point average factored in as 50 percent of the certification criteria, with the test accounting for the other 50 percent.

Finally, if the former two steps did not result in a black passing rate equal to 90 percent of the white passing rate, an additional number of the most highly qualified black candidates were to be certified to make the passing rates differ by no more than 10 percent.

Individual Relief

The settlement also provided individual relief for members of the plaintiff class. The state board was ordered to issue certificates immediately to individuals who had failed the professional-skills test; who had been denied advanced certificates in the same field in which they held beginning certificates; who had scored within 12 points of the passing scores for the exams; or who would have scored within 12 points on the exams if their grade-point averages and test results were given equal weight.

The settlement also required the state to pay $500,000 in damages to the members of the class.

Donald Watkins, the lawyer for the plaintiffs, said that more than 600 black educators were entitled to money and certificates because they had failed the tests. Another 2,050 black educators were entitled to money only, he said, because they had failed the exams at least once and had to retake them to receive their certificates.

Leaked Results

Although there had been strong opposition to the settlement from the start, tempers flared late last month when the dean of a local college of education announced that 99 percent of those who had taken the teacher tests in December passed.

December was the first time that the exams had been scored under the terms of the new agreement. On previous administrations, between 80 percent and 85 percent of candidates had passed the exams.

“These tests have been in force for several years, and were never as discriminatory as they should have been in screening people out who should not be teaching,” said Norbert W. Maertens, dean of the school j of education at Auburn University-Montgomery. “Now, darn near everybody passes these tests. They’re worthless. “

“If we need to upgrade programs so that minorities can pass these tests, then let’s put some funding into that,” he said last week, “rather than reducing the standards and letting everybody through.”

As examples, Mr. Maertens noted that 190 out of 193 students statewide passed the early-childhood education test in December, 345 out of 347 passed the elementary-education exam, and 63 out of 63 passed the secondary-school mathematics test.

Although he ruled that the disputed settlement was not legally binding against the board of education, Judge Thompson said he remained convinced that board members had approved it.

‘Widespread Public Impact’

Ordinarily, he said, federal law does not require that a settlement be in writing and signed by all parties. “If the parties here were all private and the subject matter merely of a private, nongovernmental concern, this court would readily enforce the settlement,” he wrote.

The judge said, however, that he was reluctant to order substantial federal intervention in Alabama’s affairs without a judicial finding that the state had acted unconstitutionally or violated federal law.

Particularly given the “widespread public impact” of the settlement, he said, he was reluctant to have the federal courts enforce it “merely on oral representations and the inferences the court has drawn from these representations.”

Judge Thompson concluded that there must be “a clear and unequivocal declaration that the state has agreed to such intrusion before the settlement may be enforced.” At minimum, he argued, such a settlement should be reduced to writing and signed by the appropriate state officials or their agents.

Intense Pressure

Parties in the case said last week that they were “stunned” at the judge’s decision, in part, because the 39-year-old Judge Thompson was one of President Jimmy Carter’s black appointees to the court system and has a reputation for being a liberal.

Mr. Watkins, the black lawyer for the plaintiffs, suggested that the judge had caved in under intense pressure. “He had considered these same arguments when the objections to the settlement were initially filed and rejected them,” said Mr. Watkins.

“I think the heavy media blitz together with political pressure prompted a re-evaluation of his initial decision,” he said. “I think he just took as much as he could take.”

Mr. Watkins said he did not think the judge realized the “damage he has done” to thousands of black examinees who have taken the tests or will do so in the next five or six years that the case is in litigation.

‘Major Victory’

Mr. Graddick last week called the judge’s decision a “major victory” for public education in Alabama. “Because of this ruling,” he said, “every parent can send his child into a public classroom tomorrow with more confidence than he had today.’

Attorney General Graddick, who has a reputation as a conservative, is running for governor of Alabama.

In a press conference at the end of last week, the attorney general called on the Alabama legislature to approve a pending bill that would mandate use of the National Teachers Examination in Alabama, in place of the current tests, which were developed by National Evaluation Systems Inc., a testing firm in Amherst, Mass.

Mr. Graddick said the state needs to validate use of the N.T.E. as “an insurance policy” in the event the present tests are found inadequate.

Mr. Graddick also has recommended that the current requirement that students entering teacher- training programs achieve a minimum score of 16 on the American College Testing program be increased to 18.

‘Only Way’ To Resolve

State Superintendent Wayne Teague also said he was generally pleased with the judge’s decision, “because it appears that this avenue of continued trials and litigation will be the only way to remove our teacher-testing program from the political arena and its generated controversy.”

Mr. Teague said it was his belief in the need for a strong teacher-testing program that led him to recommend a settlement. Although the interim testing program was not as strong as he would have liked, he said, it would only have been in place for a short while.

He argued that the settlement would have resulted in a “solid and useful teacher-testing program” that would have been “beyond the challenge of future court tests.”

He added that if he had to make the decision over again, from an educational standpoint, he still would recommend the settlement.

Now the state stands to “lose our entire testing program by a future order of one federal judge’s pen,” he said. “Those who have been so quick to take political advantage of this extremely complex issue had best be mindful of these ramifications.”

Mr. Teague said the department will now return to “full enforcement and implementation of our original testing program. We are so notifying all colleges of education.”

A version of this article appeared in the February 12, 1986 edition of Education Week