Educational Equity and High Stakes Testing

1
Educational Equity and High Stakes Testing

• Stefan Rosenzweig, CLMER
• November 2005
• srosenzw_at_csulb.edu

2
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 that 373 freed slaves have been killed by
  whites.

3
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.

4
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.

5

• 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.

6

• 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.

7

• 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 Powells opinion
  recognized that diversity is a compelling
  governmental interest.

8

• 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.

9

• 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.

10
Grutter v. Bollinger, 123 S.Ct.2325 (2003) and
Gratz v. Bollinger, 123S.Ct. 2411(2003)
11
Grutter upholds University Law School Admissions
5-4

• The Court reaffirms Justice Powells 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.

12
Grutter upholds University Law School Admissions
5-4

• The Court reaffirms Justice Powells 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.

13
Gratz rejects University
undergraduate admissions policy 6-3

• Policies failed to provide a sufficiently
  individualized consideration of candidates
  overall qualifications in seeking to promote
  diversity.

14
HIGH STAKES TESTING
15
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 childs
  differential language facility. Any assessment of
  the childs 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.

16
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.

17
High Stakes Testing
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/steel
e.html

• Current Research
• Claude M.Steele, Chair, Dept.of Psychology,
  Stanford U.

18

• 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.

19
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 districts requirements for graduation
• In addition,theCAHSEE 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.

20
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
  assessmentsStates 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.

21
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.

22
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?

23
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)

24
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 alternativesthat 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 States 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 unconstitutional.

25
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.

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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.

27
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.