Exclusive to Cloaking Inequity: Whiskey, Sandals, Teasing, and High-Stakes Tests


The federal courts first took up high-stakes testing in Debra P v. Turlington and refused to overturn them despite their disparate impact on students of color in Florida. About a decade ago, Texas was sued by Texans in federal court GI Forum v. TEA, (American GI Forum is a veterans group), for the longstanding battery of high-stakes exit tests which have been required for graduation from high school in one form or another since 1987. Professor Walt Haney graciously forwarded an interesting narrative about his experience in the GI Forum case. I have not edited it whatsoever. It is in original form.

Ok here is the story of how I came to carry a whiskey box into a federal courtroom in San Antonio Texas.  An old, old friend of mine, named Al Kaufman is a senior lawyer with the Mexican American Legal Defense and Education Fund (MALDEF).  Al had previously won two major civil rights

Cases in Texas, which led to more equitable state funding for both elementary-secondary and higher education (and he was recently named one of the top 25 lawyers in Texas by a law review journal there).  I have known Al for decades and around 1986 he began pestering me to become an expert witness for MALDEF’s planned legal challenge of Texas’s high school graduation test, in a case that became know as GI Forum v. Texas.

I was very reluctant to agree, because having served as an expert witness previously, I knew how such cases can last years not just months, tend to take over one’s life and the experience of cross examination, wherein opposing attorneys will stoup to anything to try to undermine one’s credibility, can be pretty grueling.

Nonetheless Al can be pretty persuasive, so I finally agreed to be an expert witness for him.  I worked on the case for more than a year, and as the trial approached in the fall of 1989, I had accumulated four or five milk crates worth of documents and files – equivalent to maybe eight or ten feet of bookshelf space.

The trial was to begin on a Monday, but Al wanted me to go down to San Antonio on a Saturday so we spend all day Sunday preparing for the start of the trial. (Al wanted me to be the lead off witness for the plaintiffs on Monday afternoon.)  As I was preparing for the trip from Boston to San Antonio Friday evening, I could not decide which documents to take with me, so I figured I would just take everything.  So I drive out to a local office supply store and bought the largest heavy-duty cardboard box they had, about two feet, by two feet, by three feet.  Back at home I stuffed the box with the contents of maybe three or four milk crates worth of files and secured it well with duct tape.  But that left me with maybe 12 or 14 inches worth of documents – far more than I could fit in my brief case.  So I go out to my barn and hunt up another box that would contain the remaining documents and seal it with duct take.

Saturday I set out on the journey to San Antonio, taking a limousine from Westminster to Boston Logan airport.  The first problem arose when I tried to check in the big box.  Turned out it weighed more than 70 lbs – beyond the limit for checked baggage.  Fortunately a $20 bill to the skycap solved that problem. No other problems arose on the rest of the way to San Antonio.  Al  picks me up at the airport, and after swearing at me about the weight of the big box, takes me to a great little old hotel in San Antonio.  On Sunday we go to the MALDEF headquarters in San Antonio, working from 7AM to after midnight to prepare for the start of the trial.  I did not have a briefcase, so I pile 12 inches of so of documents which I will use in my testimony in my small box.  Al takes me back to my hotel where I sleep very fitfully, as I never sleep well on the night before testifying.  I wake up around 5AM and the next problem arises when I get dressed for Al to pick me up at 7AM.

The problem was this.  For several years, I had been suffering from gout, which typically arose during hot weather, especially when I had taken long plane rides.  When I tried putting on my dress shoes, it was clear that gout had struck my right foot again.  If I wore shoes, I would be walking like a cripple if at all.  I had anticipated this possibility, and had brought a pair of dark sandals, which I put on with a pair of black socks to make them an inconspicuous as possible.

The trial starts at 9:30 in the federal courthouse in San Antonio. The morning is taken up with opening arguments by Al and the associate Attorney general for the state of Texas.  The court adjourns for a two-hour lunch break, and we walk to a restaurant a few blocks from the court.  I am exhausted, so excuse myself and go back to the courtroom to take a nap in the foyer outside the courtroom.  Just as I am falling asleep on the floor, the bailiff comes over to ask if I am OK.  I explain I am just taking a quick nap.  Thirty minutes later, Al and the other lawyers return and we head into the courtroom for the afternoon session. Me with my box of documents.  The bailiff notices it and asks what it contains. Turns out it is a Dewars Scotch Whiskey box.  Neither Al nor I had noticed what kind of a box it was. Then in the courtroom, the associate attorney general notices it and makes some kind of  snide remark.

Then sure enough when I head to the witness stand, the federal judge, Judge Prado, notices the box and quips, “Excuse me professor, but are the contents of your box for during or after the trial?”

Al had promised me I would not be on the stand for more than two days, but because the lawyer for the state was a real jerk, I end up on the stand for the better part of four days, each day carrying my documents in my, by then, widely noted whiskey box.

At the end of four days, Al drives me to airport and as I am about to depart, Al says “Jeezus Christ Haney. I go all the way to Boston to get a Harvard educated, nationally renowned expert!! And then you end up sleeping on the floor outside the court, wearing sandals and carrying a whiskey box. I could have gotten someone like that out of east Texas!  If you would please send me a Goddamn bill, maybe you could afford a bigger pair of shoes and a good sized briefcase!!”

I had been so busy working on the case that I had never gotten around to sending Al a bill.  Finally he started calling my wife who gave me such a hassle that I did send in a bill and Al sent me a five figure check which was very helpful in paying off the mortgage on our house on Cape Cod. If you want to know more about the substance of the Texas case and my follow up work on it, see:


Cheers, Walt

Ultimately, Judge Prado argued that the resolution of this case turned not on the relative validity of the testing regime in Texas, but on his view of the “State’s right to pursue educational policies that it legitimately believes are in the best interests [????!!!] of Texas students” (GI Forum v. Texas Education Agency, 2000, p. 670). 

Prado dismissed the case, empowering high-stakes testing in Texas— apparently for perpetuity.

Challenges to high-stakes exams have continued in federal and state courts. We conducted an analysis of these cases in a new peer-reviewed article that I recently co-authored with Dr. Jennifer Holme and will appear in the Journal of School Leadership. I will post it once I have a pdf copy. Teaser follows:

High Stakes Decisions: The Legal Landscape of High School Exit Exams and the Implications for Schools and Leaders

ABSTRACT: High school exit exam requirements are impacting a growing number of U.S. students, particularly low-income students and students of color. This article examines policy and legal landscape of exit testing policy in order to shed light on some of the key issues facing local school leaders charged with implementing these policies. The article first analyzes federal and state-level court cases related to exit testing, and examines the conditions under which courts have permitted and bounded their use. The article then discuses the broader legal and legislative environment that has affected the ability of leaders to respond to exit testing requirements. The article concludes with implications of high-stakes exit testing and policy considerations for local leaders as well as state policymakers.

P.S. I am posting this from a Southwest Airlines flight somewhere over Arizona.

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