Courts on high-stakes tests: They “eradicate” “insidious” “racism”

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It has been common knowledge for a long time that high-stakes tests have a disparate impact on students of color. What is interesting about high-stakes testing is that proponents recently reframed the gap in the NCLB-era from discriminatory to instead being about “Civil Rights.” I wrote in the post Segregation Nation: Recap and video from visit to @MSNBC @MHPshow:

Now we talk about tests not as purposeful discrimination and sorting of students, but that the “achievement gap” is a Civil Rights issue. The purposeful sorting and discriminatory design has been pushed to the side by “reformers.”

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The disparate impact high-stakes tests were challenged in Florida in the US Supereme Court Case Debra P. v. Turlington. We wrote about Debra P. in a peer-reviewed article published in the Journal of School Leadership entitled High Stakes Decisions: The Legal Landscape of High School Exit Exams and the Implications for Schools and Leaders.

Citation: Holme, J. & Vasquez Heilig, J. (2012). High stakes decisions: The legal landscape of gatekeeping exit exams and the implications for schools and leaders. Journal of School Leadership, 22(6), 1177-1197.

One of the earliest and most influential cases with respect to exit testing is the Debra P. v. Turlington (1981) case, in which African American students who had failed the Florida functional literacy examination known as the Florida Student State Assessment Test, Part II (SSAT-II) challenged the state law requiring a passing score to receive a high school diploma in Florida. The plaintiffs argued that the test was not given with adequate notice, and that the testing requirement was racially biased because “at the time of the 1979 hearing, after three test administrations, the failure rate of black students was approximately 10 times greater than that of white students” (Debra P. v. Turlington, 1984, p. 1405).

In Debra P., the federal district court judge established two central requirements for exit testing linked to diplomas: sufficient notice and curricular relevance. To satisfy due process, the court ruled that notice must be given to students about the academic content several years before the test is implemented. The Court also required that the schools must establish “curricular validity” by demonstrating that they have, in fact, taught what is assessed on the exam. The Debra P court concluded that the “state may condition the receipt of a public school diploma on the passing of a test so long as it is a fair test of that which was taught” (Debra P. v. Turlington, 1981, p. 406).

This ruling was upheld on appeal to the 5th Circuit Court of Appeals in 1981, which remanded the case to the district court to determine whether the Florida test met the advance notice and curricular validity standards laid out in the 5th Circuit opinion. In 1983 the district court judge ruled that the state had in fact given advance notice to members of the class of 1983, and had proven not only that the test was valid and fair but that the diploma sanction would in fact improve learning conditions for students who were attending schools that had recently been desegregated. The district court concluded that whatever racism that did exist in the schools be eliminated as a result of the test, writing that “… to the extent that insidious racism is a problem in the schools, it would seem that a test like the [exit test], with objective standards and goals, would lead to its eradication” (Debra P. v. Turlington, 1983, p. 188).

This decision was again appealed by plaintiffs, this time to the 11th Circuit Court of Appeals  (which was created as the result of a division of the 5th Circuit). The Appeals court again affirmed the district court judge ruling, writing that:

…. the diploma sanction is needed to remedy the present effects of past segregation in Florida’s schools. … the diploma sanction will motivate teachers and administrators, as well as students. Although the sanction is to deny the student the diploma, diploma denial reflects adversely on the teachers and administrators of the school system responsible for the student’s education. We think it is clear that teachers and administrators will work to avoid this stigma, thus tending to remedy any lingering lower expectations on the part of teachers (Debra P. v. Turlington 1984, p. 58.).

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The court concluded that the state could institute the FCAT as a graduation requirement, ruling that: “the State of Florida may deny diplomas to students (beginning with the Class of 1983) who have not yet passed the SSAT-II” (Debra P v. Turlington, 1984, p. 1405).

So courts have recognized that the high-stakes exams had a disparate impact on students of color, but they were okay with that because they would magically lead to the “eradication” of “insidious” “racism.”

In the post Brown v. Board Fails: Resegregation is Accidentally on Purpose #Brownat60 I argued that our legislative and judicial bodies claim that their policies are race neutral, but they are well aware of the disparate impact of their policies in the data, and they continually shrug their shoulder in denial that their action or lack of action is discriminatory or without racial intent (similar to the argument being used to suppress voting), when in fact, prima facie, they do. The powerful legislative and judicial bodies in the US accidentally on purpose codified a system in which society, especially the poor, is sorted by high-stakes exams. High-states tests are a Noble Lie. The American judicial system and legislatures have taken an overt Jim Crow system of racial prejudice and discrimination and instead codified a covert system that continues to have disparate impact.

AG Eric Holder (#hero) has recently expressed interest in the disparate impact of policy on minorities. Will high-stakes exams be in his purview?

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Categories: High-Stakes Testing

Author:Julian Vasquez Heilig

Julian Vasquez Heilig is currently an Associate Professor of Educational Policy and Planning and African and African Diaspora Studies (by courtesy) at the University of Texas at Austin.

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7 Comments on “Courts on high-stakes tests: They “eradicate” “insidious” “racism””

  1. May 23, 2014 at 10:51 am #

    The Court’s “Cultural Deficit” thinking highlights “White” cultural thinking and “White Flight.” Thinking that is re-enforced through years of NCLB “high stakes testing” and “kill and drill” teaching to those tests. Students of color “more segregated than ever” and students with “other” cultural traditions and languages are seen by these courts as being inferior and needing to be “fixed” through education- obviously. Curricular and pedagogical arguments raged a decade and more back as to how multi-cultural issues and bi-lingual issues should be addressed by mostly white teachers of students from diverse backgrounds. NCLB, particularly in states like Florida, Louisiana, Texas and others, effectively closed, “silenced” those discussions with talk about test data and so called “school improvement” which gave parents- particularly middle class ones- a “trigger” to pull their kids out of so called “failing schools.” See post on: Segregation Nation: MHP, Re-Cap.

  2. May 24, 2014 at 9:20 am #

    I like your write-up and I agree that action needs to be taken to keep standardized tests from helping to reproduce inequalities in education and experience in the next generation. However, though I’m not familiar with the SSAT-II, I wonder how a test for “functional literacy” can be so heavily biased against one racial/ cultural group based on racial differences in “thinking” (as the previous commenter put it). More likely it’s a difference in the funding and quality of instruction of majority-white vs. majority-black schools in Florida that’s producing this disparity.

    So in that case working to make the SSAT-II more neutral (or eliminating standardized testing) won’t really do much to equalize passing rates, let alone education and career opportunities. It’s maybe sort of a red herring that distracts from more important issues.

  3. May 24, 2014 at 10:28 am #

    RoadworthyGirl, you ask:

    I wonder how a test for “functional literacy” can be so heavily biased against one racial/ cultural group based on racial differences in “thinking” (as the previous commenter put it)?
    Literacy “development” is both a psycho-linguistic (phonetic/syntactic) and a social-linguistic (cultural) process and very complex- teachers in classrooms sensitive to cultural/linguistic/experiential differ-ences can address those differences.

    No, “state-wide” so called “functional literacy” test can do anything more than offer a broad scale of difference using numbers that translate to so called “good schools” v. “failing schools.” Thus, bias is the result. You speak of “functional literacy” as though it’s one thing. I ask, functional literacy for whom, when, and where …and, in what context?
    I can’t offer much more, in this type of space, but, there is considerable research that demonstrates the complexities of “teaching’ literacy and the conditions needed to do so.

    As a teacher who has taught for decades and is trained in reading instruction I can tell you from personal experience that the “drill and kill” teaching methods that grew out of NCLB in too many schools, has pedagogically been a disaster. Recognition of that fact is indeed one of the reasons for the shift to the CCSS, as told to me and hundreds of colleagues in a CCSS week long seminar last summer paid for by the state of CA to the tune of $1500 per teacher to thousands state wide.

    If that were as far as it goes with CCSS, it might help, however, purveyors of the “educational e-industrial complex” are trying to figure out, (unsuccessfully thus far) how to e-test for “functional literacy” and that is the controversy with CCSS not the new adopeted methods suggested for teaching.

  4. June 4, 2014 at 3:49 pm #

    Reblogged this on aureliomontemayor and commented:
    High stakes test continue to have the harshest effects on students of color and the economically disadvantaged.

Trackbacks/Pingbacks

  1. Cloaking Inequity: Courts on High-Stakes Tests: They “Eradicate” “Insidious” “Racism” | National Education Policy Center | MI ED News Clips - May 25, 2014

    […] Courts on high-stakes tests: They “eradicate” “insidious” “racism&#822… […]

  2. Heilig: High-Stakes Testing Does Not Curb Inequity | Diane Ravitch's blog - June 4, 2014

    […] his blog, Julian Vasquez Heilig explores how the federal courts have failed to confront the racially disparate impact of high-stakes […]

  3. Educational Policy Information - June 4, 2014

    […] his blog, Julian Vasquez Heilig explores how the federal courts have failed to confront the racially disparate impact of high-stakes […]

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