Courts: Tests' Equity Remains Issue

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Experts agree that educators can expect more court challenges to the practice of teacher testing, but they disagree over whether, in the final analysis, courts will find that such testing is a valid means of determining who is qualified to enter the profession.

In fact, courts have thus far tended to question not testing per se but the fairness of testing procedures and criteria in light of their disparate impact on minority groups.

In a summary decision offered without a written opinion, the U.S. Supreme Court affirmed in 1978 a three-judge district court's decision upholding South Carolina's use of the Educational Testing Service's National Teacher Examinations for certification purposes.

That action, says G. Pritchy Smith, a leading expert in the field of teacher-competency testing, was seen by the states and by proponents of the tests as a clear legal precedent for their use. And it provided the impetus, he says, for the rapid acceptance of certification tests by other states.

But test critics have maintained that the Court's decision in the South Carolina case cannot be automatically extended to include the use of teacher-competency testing in general--or, in fact, to all states requiring a certifying exam.

"It does not mean there won't be other challenges," said Albert H. Kauffman, a lawyer for the Mexican American Legal Defense and Educational Fund. Individual tests "can still be attacked," he said, both on constitutional grounds and under federal civil-rights laws.

"You have to look at each test and how it's used," said Mr. Kauffman. "The proponents of teacher testing exaggerate the importance of the South Carolina case. And if I were them I would too."

In fact, establishing a constitutional violation under the 14th Amendment's equal-protection clause, which would involve proof that a state's use of the test was motivated by racially discriminatory intent, is a difficult proposition. But it is not impossible, Mr. Kauffman and other opponents argue.

The opponents contend that although competency tests are employed to achieve a valid purpose--improving the schools--official knowledge of the test's disproportionate impact on minorities makes unintended discrimination intentional.

While the argument has not yet been fully tested in the courts, most legal experts say rulings to date give a clear indication that tests that fairly separate the qualified from the unqualified will be upheld regardless of their impact on minority groups.

1976 Ruling

They cite in particular the Supreme Court's 1976 ruling in Washington v. Davis, which upheld the use of a District of Columbia test for police recruits, even though the test had an unequal impact on blacks.

Testing opponents counter, however,that the Court also said in that opinion that discriminatory intent might be inferred from "the totality of the relevant facts," including a proven finding "that the law bears more heavily on one race than another."

And opponents were further buoyed last August, when a federal judge temporarily enjoined the state of Texas from requiring a preprofessional skills test for entry into state-approved teacher-training programs.

Blacks and Hispanics had failed the test at rates of 88 and 80 percent, respectively--evidence, the judge concluded, that the test's intent may have been to lower the number of minority students admitted, a violation of the constitutional right to equal protection under the law.

But since the High Court's Washington v. Davis decision, testing cases have more frequently involved Title VII of the Civil Rights Act of 1964, which offers specific protection against employment discrimination in both public and private entities, when it is based on race, sex, religion, or national origin. Ability testing is allowed under the statute, however, unless it can be proven to be "designed, intended, or used" to discriminate.

Other federal statutes which forbid discrimination in programs receiving federal funds--Title VI of the Civil Rights Act and Title IX of the Education Amendments of 1972--have also been the basis of suits.

Inconsistent Precedents

But variation among the states in the type, purpose, standards, and use of teacher tests--and in their results--has meant that no one ruling has been universally applicable.

Figures compiled by J.T. Sandefur, the dean of education at Western Kentucky University, show that 28 states use all or portions of a national standardized test, usually the ets's National Teacher Examinations. Sixteen use state-developed or "customized" tests. Even on the national tests, however, each state sets its own standards and scoring cutoff points.

Virtually all teacher-testing litigation to date, according to Patricia M. Lines, former director of the Education Commisssion of the States' Law and Education Center, has concerned use of the n.t.e.

In an ecs monograph titled "Teacher Competency Testing: A Review of Legal Considerations," Ms. Lines notes that the ets designed the test to measure only the minimum knowledge base required of beginning teachers and has been careful to warn states against its use for any other purpose. The testing firm also suggests no minumum score and recommends that states avoid the arbitrary establishment of high cutoff points.

Ms. Lines indicates that courts have tended to accept the ets recommendations--ruling in several cases that scores required for certification were unjustifiably high--but have limited their examination of other legal issues involved in the testing process.

And though lawyers on both sides of the debate predict continued challenges to testing laws, as their impact on minority groups becomes more apparent, they say that few if any cases are likely to result in rulings that question the legal soundness of the practice.

Those in the testing field agree. If states give adequate notice and preparation for the tests, they maintain, and if exams are carefully designed, reviewed, and validated, so that they fairly and accurately measure what they are intended to measure, teacher testing is on solid legal ground.

But, writes Ms. Lines, "the wisdom of teacher testing is another matter, to be determined after a full public debate."--br & msr

Vol. 05, Issue 12

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