News: Rights Watch
Testing High Stakes Testing

Texas court OK's 'discriminatory' graduation exam.

In a landmark decision, a federal court in Texas has given the green light to a state requirement that high school students pass an academic skills test in order to graduate.

Despite finding that the exam had a "significant adverse impact" on Hispanic and African American students, the court upheld the test because it "serves the legitimate educational goals" of the state.

Since roughly half the states now have some form of graduation exam, the court's January ruling could have national implications.

Implemented in 1990, the Texas Assessment of Academic Skills (TAAS) test requires students to demonstrate competence in three areas: reading, math, and writing.

In a lawsuit filed in 1997, the Mexican American Legal Defense and Educational Fund (MALDEF) argued that the TAAS test is illegal because of the high failure rate among minorities. The initial failure rate was 67 percent for African Americans and 59 percent for Hispanics, but only 31 percent for white students.

According to MALDEF attorney Albert Kauffman, between 8,000 and 9,000 Texas high school seniors don't graduate each year because they can't pass the exam, and 87 percent of those are minorities.

Texas students are tested every year, starting in third grade. High school students must pass an exam to graduate. They can retake the test eight times.

Federal judge Edward C. Prado ruled that the testing requirement is not unlawful, for several reasons.

First, the test had been adequately validated, both as to "content validity" and "curricular validity." Students, the judge said, are tested on what is taught.

More important, students who fail the test on the first try are entitled to remediation services. Some 44,500 minority students were "successfully remediated" in 1997, according to the court. Kauffman estimates that between 60 percent and 70 percent of students who initially fail the test eventually pass.

Far from disadvantaging minorities, Judge Prado argued, the test actually helps the state "identify and eradicate educational disparities."

The court recognized that "current prevailing standards for the proper use of educational testing" urge that "high stakes decisions," such as whether to graduate a student, "should not be made on the basis of a single test score." That principle doesn't apply here, the court said, because a student can take the test many times.

Finally, the court found "no credible evidence" for the claim that the TAAS requirement causes large numbers of minority students to drop out of school.

The test does not "perpetuate prior educational discrimination," the court concluded. Rather, test results are used to motivate students, schools, and teachers and "to raise and meet educational standards."

It is not for him, Judge Prado said, "to rule on the wisdom of standardized examinations," but only whether the testing program is lawful. The TAAS test may have had a adverse impact on minorities, he added, but that likely resulted from other factors such as: socioeconomics, family support, funding, the quality of teaching and educational materials, and individual effort.

Critics of high stakes testing lambasted the court's decision. Monty Neill of FairTest charged that the ruling means "racially biased tests are acceptable because instilling fear and using high-stakes tests are necessary for educational reform."

According to MALDEF's Kauffman, most Texas teachers oppose TAAS testing because "teachers can't teach anymore." Instead of covering the subject matter, they have to "teach to the test" and drill students on test-taking skills.

Kauffman told NEA Today he hasn't heard of any teacher being fired for poor student performance on the TAAS test. "But that's coming," he warns.

A copy of the decision in G. I. Forum v. Texas Education Agency is available on the web at www.txwd.uscourts.gov.

-- Michael D. Simpson
NEA Office of General Counsel

Punishing Teachers for Low Student Scores

Civil rights attorney Albert Kauffman (see main story) predicts it's just a matter of time before school districts start firing teachers for poor student performance on standardized tests. Can they do that?

To date, only one school district has tried, and a federal court quickly stepped in.

In 1985, the St. Louis (Missouri) Board of Education adopted a policy requiring an "unsatisfactory" rating for any English, math, or communications teacher whose students performed poorly on the relevant portions of the California Achievement Test (CAT). A teacher who received an unsatisfactory rating could be put on probation and ultimately discharged for incompetency or inefficiency.

The St. Louis Teachers Union immediately filed a class action lawsuit challenging the policy, arguing that it was "arbitrary and capricious" and violated the Due Process Clause of the 14th Amendment.

The union charged that the CAT "was not designed for use as, and has not been validated for use as, a teacher evaluation tool," and, for that reason, the exam is an "unreliable indicator of how much teacher performance affected student performance."

After a federal court refused to dismiss the lawsuit and ruled that the union had a valid claim, the board of education rescinded the policy.

In a case with a somewhat different twist, the North Carolina Association of Educators in May 1998 filed a court challenge to a new state law requiring all teachers in "low-performing" schools (schools where students fared poorly on state tests) to take a competency exam. The state legislature repealed the requirement just days before the first teacher test was to be administered.