ERIC Identifier: ED289884
Publication Date: 1985-00-00
Source: ERIC Clearinghouse on Tests Measurement
and Evaluation Princeton NJ.
Legal Issues in Testing.
Standardized tests are often used as a mechanism of social control. "If a
decision-maker can point to the results of an objective and valid test as the
information on which a control decision was based, those being controlled are
more likely to accept and internalize the decision and its consequences." Tests
as a social control mechanism are "open to criticism in proportion to the extent
to which those being controlled perceive it as irrational, capricious,
arbitrary, or unjust" (Nitko 1983).
Legal challenges to the use of tests for decision-making in schools have
focused on ability tracking, placement in special education classes, test scores
as school admissions criteria, test disclosure, and teacher competency. Cases
illustrating legal challenges to the first five are described in this Digest
(the legal issues surrounding minimum competency testing are discussed in a
separate Digest). In general, the application of specific laws to claims of
inappropriate test use is unclear; instead, the cases have been decided based on
the specific circumstances of each case.
Many cases have been based on the charge that tests have caused the
disproportionate placement of minority students in lower ability tracks. The
cases are usually based on the argument that the tests are biased against the
lower scoring group or that they reflect the effects of past segregation in the
schools. The plaintiffs argue that use of the test denies them access to certain
programs or to certification of some kind.
Court decisions have upheld these arguments to some extent. In Hobson v.
Hansen (1967), it was ruled that the IQ tests used to track students were
culturally biased because they were standardized on a white, middle-class
sample. It was ruled that these tests were inaccurate for lower-class and black
students, and the court abolished the tracking system used in the District of
Columbia. Later appeals allowed other forms of ability grouping, but would not
allow the use of tests that had racially discriminatory consequences.
The use of achievement tests instead of IQ tests may not be any more
appropriate. Moses v. Washington Parish School Board (1971) involved the use of
both IQ and achievement tests. The IQ test scores were used for special
education placement; the achievement test scores were used for later tracking.
The case was also somewhat unique because it involved a recently-desegregated
school. The courts ruled against test use for tracking under these
SPECIAL EDUCATION PLACEMENT
The arguments against the use of tests for special education placement
decisions are the same as those against the use of tests for tracking. In
addition, the plaintiffs frequently argue that using a test to label a person is
illegal because it results in stigmatizing that person.
The best-known case focusing on special education placement is Larry P. v.
Riles (1972). IQ tests were being used to place students in EMR classes. The
defense argued that racial imbalance in the EMR classes was not the result of
test scores, since parental consent for placement was required. The court
decided that the parents would also be influenced by the test scores and was not
sympathetic to the defense's argument that there was no better alternative.
In later appeals, test validity became an important issue, and the court set
standards for validity: the same pattern of scores must appear in different
subgroups, the mean score should be the same for different subgroups, and the
results should correlate with relevant criterion measures. Though experts argued
that these standards were not psychometrically sound, the court found that the
racial differences in test scores were due to cultural bias in the tests.
The Larry P. decision was rejected as a precedent by Judge Grady in Parents
in Action on Special Education (PASE) v. Hannon (1980). In this case, IQ tests
were being used for placement of students in EMR classes in the Chicago schools.
The plaintiffs argued that the tests were culturally biased. Since other
criteria were also used for placement and many of the school psychologists were
black, Grady found for the defendants.
Linguistic bias in the IQ tests used to place students in special education
classes has also been the basis of legal challenges. One case of this type
(Diana v. California State Board of Education 1970) never actually came to
court. Research indicated that, on the IQ tests used for placement in EMR
classes, Mexican-Americans gained 15 points if they were allowed to respond in
Spanish. The consent decree allowed non-Anglo children to choose the language in
which they would respond, banned the use of verbal sections of the test, and
required state psychologists to develop an IQ test appropriate for
Mexican-Americans and other non-English-speaking students. Soon after, the
California state legislature passed a law requiring that test scores used for
placement must be substantiated through an evaluation of the student's
developmental history, cultural background, and academic achievement.
Test scores are frequently used as one piece of information in a school's
decision about whether to admit a specific student. In Bakke v. Regents of the
University of California (1976), test scores were used as evidence, but the
validity of the tests being used was not challenged.
Instead, the case focused on the admissions procedures at the UC-Davis
Medical School, where 16% of the admissions openings were reserved for
disadvantaged students. Many students admitted under this policy had lower
undergraduate grade point averages and test scores than regular admittees. Bakke
argued that the special admissions policy was discriminatory against White
applicants because race was one criterion for disadvantagement.
Many test-takers or interested parties may want to know the content of the
test. For example, parents may want to examine contents of the IQ test used to
place their child in a special education class, or a colege applicant may want
to examine the items of a college entrance exam. Most arguments for test content
disclosure begin with the Family Education Rights and Privacy Act (1974). It
allows parents and eligible students access to their education records and an
opportunity to challenge those records, including the test protocols used for
placement of students.
In 1980, New York passed a Truth-in-Testing bill covering college admissions
tests, among others. Proponents of the bill argued that it would humanize the
admissions process, equalize opportunities for minorities, and ensure the
accountability of test publishers. Opponents argued that the administration of
secure tests minimizes costs to test-takers, prevents uneveness across admission
directors, and protects test score validity. Though a similar national bill was
introduced, it was not passed and further legislation in this direction seems
unlikely in the near future.
TEACHER COMPETENCY TESTING
Legal issues related to teacher testing are similar to those in occupational
testing in general. States or school districts must be able to demonstrate that
a test is valid for the purpose for which it is being used. The example of the
use of the National Teacher Examinations (NTE) for certification and promotion
in South Carolina can be used to illustrate these issues. Use of the NTE was
challenged by the National Education Association, the South Carolina Education
Association, and the U.S. Justice Department on the grounds that the NTE were
biased against minorities; many more Black than White applicants failed the
The court decided that the NTE were valid for these purposes, because scores
reflected presence or absence of knowledge, there was no intent to discriminate,
and an ETS validity study indicated that they were in compliance with Title VII
of the Civil Rights Act of 1964. Opponents of this type of test continue to
argue that certification should be based on a performance test, rather than a
As can be seen from the cases described above, many legal issues are involved
when tests are used as a mechanism for social control. In general, the issues
revolve around the validity of the test for a specific use. However, specific
legal decisions depend on "the particular circumstances surrounding a given
case, the evidence brought to bear in the case, and the opinion of the judge and
jury involved" (Nitko 1983).
FOR MORE INFORMATION
Bersoff, Donald N. "Testing and the Law." AMERICAN PSYCHOLOGIST 36 (October
Block, Arthur R., Michael A. Rebell. THE ASSESSMENT OF OCCUPATIONAL
COMPETENCE. 5. COMPETENCE ASSESSMENT AND THE COURTS: AN OVERVIEW OF THE STATE OF
THE LAW. Boston: McBer and Co., 1980. ED 192 169.
Burns, Daniel J. "The Truth about Truth-in-Testing: An Examination of
Opposing Arguments." COLLEGE AND UNIVERSITY 6 (Spring 1981):207-226.
EDUCATIONAL MEASUREMENT & THE LAW. PROCEEDINGS OF THE 1977 ETS
INVITATIONAL CONFERENCE. Princeton, NJ: Educational Testing Service, 1978. ED
Hollander, Patricia. "Legal Context of Educational Testing." In ABILITY
TESTING: USES, CONSEQUENCES, AND CONTROVERSIES. PART II: DOCUMENT SECTION,
edited by Alexandra K. Wigdor and Wendell R. Garner. Washington, D.C.: National
Academy Press, 1982. ED 213 771.
Nitko, Anthony J. "Social, Legal, and Ethical Issues in Testing." In
EDUCATIONAL TESTS AND MEASUREMENT: AN INTRODUCTION, Chapter 2. New York:
Harcourt Brace Jovanovich, 1983.
Sherman, Susan W., and Nancy M. Robinson, Editors. ABILITY TESTING OF
HANDICAPPED PEOPLE: DILEMMA FOR GOVERNMENT, SCIENCE, AND THE PUBLIC. Washington,
D.C.: National Academy Press, 1982. ED 221 560.
Tractenberg, Paul L., and Elaine Jacoby. "Pupil Testing: A Legal View." PHI
DELTA KAPPAN 59 (December 1977):249-254.