EDUCATION, TESTI NG AND LAH
JAMES
H.
SMART
The direction in which education
starts a man will determine his
future.
Plato
Public School Education in the United States can be
looked at in the simplest of terms as involving two
areas, the deciding of what the child is to be taught
and the process of teaching the child what has been
decided he is to learn.
From these two basic areas in
which education must deal there have evolved many
complicated and sophisticated schools by which these goals
are determined.
The processes involved are separate in
that one is planning and one is operational, but they
are not inseparable for they share the one common goal-the educating of each child in the school to the utmost of
that child's ability as it can be done within that school.
In attempting to reach the ideal goal of educating
the individual student to the utmost of his ability, an
overwhelming majority of the public school systems in the
United States use some form of testing device--be it I. Q.
achievement or psychological--in trying to discover what
the student is best suited for as to his ability to learn.
The best estimates are that between 75 and 90 percent of
the public school systems use a test of some sort at least
once between grades 1 and 12.1
The tests that are used can be divided into three
groups.
achievement, I. Q., and psychological-I. Q.
An
achievement testis a test designed to measure the amount
of knowledge which a student has in the particular subject over
1
2
which the test covers.
These tests, such as the Stamford
Achievement Tests and the Ohio Test of Basic Skills, are
administered, graded, and the score is used to compute
the hypothetical grade level achievement of which the student
then has knowledge.
These results are 'then used on an
aggregate to rate the school as a whole and used on an
individual basis to place the student in the school room
environment which the placement officers of the school feel
would best suit that student. 2
An I. Q. test is designed to measure another part of a
child's ability--his overall capacity to learn.
With a
national mean for a given age group of 100,3 a deviation from
this score will place the child in a position of being classified as an intellectual inferior if his score is low or an
intellectual giant if his score is high.
As used by
sc~ool
systems in other than an overall school rating, the individual
student will be advised to take and placed in certain
curriculum programs as a result of the scores he makes on
these tests. 4
The psychological-I.Q. test does the same thing which
a standard I.Q. test does in that it purports to measure the
intellectual ability of which the student possesses.
However,
this is not the only factor which it is intended to measure.
These tests can also be used to give a picture of the overall
mental faculty of the student.
A test such as the Wechsler
Intelligence Scale for Children (WISC) gives an I.Q. score, and
J
if the examiner so desires, he can group the subtests and
individual answers to verbal response questions to discover
whether the child is a sociopath, a psychopath, or had
some other form of psychological disorder. S
The overall purpose to which the use of these tests
is to differentiate the students as to ability and to educate
them in light of their own ability to learn.
If a child does
poorly on a test, or a group of tests, then he is placed in
a learning situation where he will be allowed to attain the
maximum amount of knowledge without becoming stymied by work
which he cannot achieve.
Likewise, if the child does well on
the test, Or tests, it is assumed he is of higher academic
ability and will be placed in more academic courses by which
he, too, will be allowed to achieve to the highest of his
ability without the holding back effect of "slow" students
in his classroom.
In theory, it is best for the "slow"
student to progress as best they can in' courses designed to
let them achieve that much.
Furthermore, it makes the school
a better functioning organization.
The teachers know what
type of students they will have when they go to the classroom.
A teacher will be allowed to specialize not only in the
traditional areas of specific curriculujII, but in knowing he
will be teaching the mentally retarded, the emotionally
disturbed, the mentally handicapped, then he will have more
than likely studied these areas.
He will be a specialist
trained to work with these special problems and at the same
4
time he will save the regular classroom teacher the trouble
and use of time at the other students'expense of trying to
cope with a student who has special problems. 6
The ways in which the results of tests are implemented
to carry out the overall purpose of using the tests are
varied.
One of the more popular schemes by which a school
"
system makes use of the "ability" grouping as shown by the
tests is a system of "tracking" students.
In a school
district set up under a "track" system, there are integrated
into the curriculum several levels of "ability" grouping.
In
a program such as this there will be either three or four
levels each of which is separate and distinct from the other.
At the top of the scale is the college preparatory track.
This track has as its curriculum in high school the
"academic" courses such as Physics, Calculus, Sociology,
Psychology, along with advanced courses in the sciences
and mathematics.
The English courses are more advanced than
the other track's English course.
The purpose is to place
these students who have scored high on the tests in a position
where they are prepared to meet the rigors of college academics
and succeed in their college car,e ers.
One step below this
"academic" track would be what shall be termed the "regular"
track.
This track will cover the area of general high school
education-- English, Biology, Geometry, History, Algebra,
etc.--but will not have the more advanced preparatory courses,
nor will the courses of same name as the "academic" track
5
be of the same overall quality as to amount to be covered
or to be learned.
The purpose of the "regular" track is
to turn out students who have a general education that will
enable them to have the basic knowledge if they go into
college. or if they do not go to college but into the job
"market then they will have the basic tools to take a job
which a high school graduate needs to work without actual
vocational courses which the -student might or might not
have taken.?
In a four-track school system the next lowest track
would be the "basic" track.
This track would have watered
down versions of the "regular" track courses with the
amount of material to be taught being less and not as
complicated.
Also found in this track would be a heavier
emphasis on vocational skills.
With the additional emphasis
on vocational skills. the schools would, also have in this
curriculum a greater number of vocational courses in the
nature of construction classes. shop courses. mechanic
courses. and secretarial skills.
This track is designed
for the educating and training of blue-collar workers. those
stUdents who will go into the job market upon graduation
and need some skills in order to acquire and keep a job.
The bottom track in either a three-track or a four-track
system is the "special" track.
In this track would be
found those students who have scored poorly on the tests
administered.
The classes would be for those labeled
6
mentally retarded, emotionally disturbed, language and
learning disabled.
Having been tested and placed in these
courses, the basic goals of the track would be to try
to solve the special problems which these faced.
For the
retarded student, the goal would be teaching him to read,
compute simple arithmetic, and gain some type of single
skill in order that he would be able to get some form of
employment.
For the emotionally disturbed student, the
goal would be not only academic but also an attempt to
help solve whatever internal conflicts:." make the student
emotionally disturbed.
For the student with some learning
disability such as inability to read, the courses would
concentrate on their one particular problem in an effort
to correct it and at the same time provide the child with
a basic education in fundamental school s kills. 8
The track system previously described is one applied
to high schools only.
This, however, is not the only sort
of education in which the school system employes the use of
track.
It is also used in the lower
~ades.
In these
lower grades the students are tested and, on the basis of
these scores and previous school work, are placed in
_,. 1,
different classes.
Each class has its own curriculum with
those students who have done well on the tests and in
previous performance being assigned to those rooms which
have the most advanced studies.
7
Those students who have
special problems as demonstrated by tests or performance
are assigned to the slower classes or to classes which
deal with the special problems which the students' scores
have indicated.
The. theory is again to let those who can
achieve higher levels of work do so without being held back
by "slow" students, while those students with problems
are placed in classes where they will have their problems
dealt with and progress to the best of their inferior ability.
The students which fall into neither of these groups would
be placed in regular classrooms lea~ing the regular grammar
school courses. 9
Inherent in the use of track system of a school
district is the theory that mobility exists between the
different tracks.
This t he ory is that a student who begins
to achieve at a level above his track could drop out of
that track and be placed in a higher track.
Conversely,
a student who began to have problems in his track could be
placed in a lower track--one which would theoretically be
10
more suited to his academic abilities.
In theory. this
is a fine-way to handle a track system.
It allows for the
so-called late bloomer to progress to harder material.
It
would allow all students to move to the level at which they
can best achieve throughout their public school education.
This is not the necessary result of such a system.
A child
8
who starts in a "basic" track and remains there for several
years whether in fact his
ab~lities
are high or low will
have extreme difficulty jumping to the "academic" track.
This is not because of his ability but because of the
track system itself.
The "academic" track students are
exposed to more material than other tracks.
is more advanced than the other tracks.
This material
The "basic" student
who may have the ability to learn this material will suffer
extreme hardship in doing so unless he had been exposed
to the previous material to which the "lilcademic" track
students had been exposed.
Since the "basic" student had
not had this previous experience, he would be at a severe
disadvantage in trying to master new material without the
proper background for this new material.
For this reason
the track system tends to be an immobile system--a system
in which those at the bottom remain there due to the process
of the system itself. 11
Another use to which test scores have been used is
in the area of school placement of students.
Under this
type of Student Placement, as used in the states of Louisiana,
Alabama, and various school systems aroun.d the country,
a student who requested a transfer to another school within
the district had to make a certain score on tests to be
allowed to transfer.
The schools using this plan used
one of two means to effect transfers.
Under the Louisiana
and Alabama schemes, the student had to achieve a score
9
equivalent to the mean score of the school in which he
wished to transfer. 12 Under the other system, a transfer
could be blocked only if a student's test scores were
below all students' scores in the would be new school. 1 )
These two methods of student placement within a school
district arose only after the landmark case of Brown v.
Board of Education, )47 , U. S. 48), (1954), where the
concept of "separate 'but equal" was struck down, and were
' ~mplimented
apparently to thwart the ruling in Brown
instead of to provide the best possible education to all
st·u dents.
The use of tests by the public schools as it
is now done gives rise to several problems as to the
validity of the tests themselves and to the actual use
to which the'y are put.
The first of these problems is
how an individual teacher looks at a student whose test
scores are known to the teacher.
When a teacher who
has not had previous contact with the student gets
records, unconsciously the teacher will begin to expect
more or less of that student, depending on whether the
test scores were high or low.
~hese
When the teacher has
expectations, the student responds to them in
somewhat of a self fulfilling type of way.
If the teacher
expects good work, he usually gets good work.
If the
teacher expects bad work the prophecy is again fulfilled
and the teacher gets bad work. 14
10
In order to prove that this is true, Rosenthal and
Jacobson went into a school--called Oak School--in order
to test the theory's validity.
They administered I.Q.
tests to a large group of students and matched students
on the basis of sex, age, I.Q. test score, family and
social background.
They placed one-half of the students
in a group of supposedly gifted students while leaving
their matched counterparts as ordinary students.
The
teachers were told of the supposedly gifted students but
not of the other "control" group. ' At the end of the
school year the students were again tested.
Those supposedly
gifted students had outgained their counterparts in I.Q. by
an average of ).80 I.Q. points. 15 The teachers who had had
both "control' and "gifted" students in their classrooms,
when asked to evaluate each student said those of the "gifted"
group were better students than those of the control group ,
with commensurate higher grades given to the "gifted"
children. 16
The only difference that could be found
was that the teachers expected more of the supposedly high
test scorersJ thus they got more in return.
The impli-
cations are that those who receive low test scores will
not be expected to achieve at a high or even a normal
levelJ thus those who are so classified will not receive
the best education possible, not because they are necessarily
intellectually inferior, but because they happened to score
poorly upon an I.Q. or achievement test.
11
The process of getting each child his optimum education
in the face of studies as those at the Oak School would
appear to be in need of change.
While the legal process
cannot hope to deal with bias that a teacher has towards
certain students on a personal level, it could operate to
restrict the bias of teachers as it relates to the use of
tests.
Since the use of test scores affects the teaching
of the child some form of restriction upon the dissemination
of test scores could result in the equal teaching of each
child, at least on the level of preconceived intellectual
ability that the teacher feels the student has.
One
method which could achieve this result is denying the teacher
the actual tests results.
In their place, the teacher would
receive a report of the students strengths and weaknesses,
not in relation to the test norms, but in relation to that
student's own abilities.
This would be achieved by the
. comparing of subtest results against each other with the
weaknesses and strengths reported.
This method would
have the further benefit of telling the teacher which areas
of learning can be utilized to strengthen the particular
weaknesses which each student has.
The author feels that
legislation along these lines as of now not proposed in
either legislature or educational journals, would go far
in remedying the teacher prejudice of test scores.
An even greater problem with the use of tests by
school systems arises from the .f act that the tests are
12
not necessarily valid for all persons tested.
The major
thrust of the commonly used I.Q. and achievement tests is
to test the subject·s verbal skills.
These tests
go to the student's use and control over the English
language, whether it be simply defining a word or
whether it be the relationship of certain words.
For a
school to base its placement of a student in an academic
environment, based a great deal in part upon verbal
skills now possessed, cannot be justified in the typical
school district.
Verbal skills are learned more in the
home and social environment than anywhere else.
If a
child is raised in an environment in which a foreign
language is the predominant speech to which he is
exposed, or if English is sP9ken faultily, his readiness
and ability in English will not be as high as children
raised in an English oriented setting.
The tests used
to determine his verbal ability are standardized by
testing white, middle-class children)and the English
deficient background student can only do more poorly
on the tests than those who have not been deprived. 17
Not only do these tests place great emphasis on verbal
English ability, but they tend to ask questions which are
more likely to cover areas which the middle-class child
would know when compared to the disadvantaged child.
On
the Otis I.Q. Test one question is "What is an escalator?"
13
A child who has never seen one is not likely to know the
answer and those children from deprived homes are more
likely to have never seen one than the more experienced
and traveled middle-class child. 18
The most fair testing device of the underprivileged
is not a verbal I.Q. test but a non-verbal test.
In the
Lorton Youth Center, the Washington, D.C., youth penal
institution, the inmates were administered two different
I.Q. tests, the verbal Otis Test, and the non-verbal Revised
Beta Examination.
The results showed the discrepancy
between verbal and non-verbal testing.
While almost all
of those tested were failures in school with 90 per cent
dr.o pping out and 95 per cent being Negroes, the average
I.Q. score on the Otis test was 78, substantially below
normal.
When the non-verbal Beta test was given, the
average I.Q. was 98. 19
The conclusion that must be reached
is that verbal I.Q. tests did not reflect the actual LQ.
of the Lorton inmates and that if I.Q. tests are to be used
in evaluating those persons from non-white, middle-class
backgrounds, the non-verbal type of test should be used.
Those persons of poverty, those persons of different
linguistic background, and those persons of different
race from the white, middle-class norms used to standardize
the tests are at a tremendous disadvantage in trying to
compete with their white, middl e-class peers to achieve
the higher scores.
With the test scores as "proof" of
14
lower ability, the disadvantaged are placed in lower
level courses, receive lower paying jobs when they graduate
(if the system has not forced them to drop out before
graduation) and with these persons' children the cycle
begins anew with poverty breeding poverty in a completely circuitious system of education based on testing
that in many cases is not fair to those persons in the
lower strata of society.
One proposed way to alter this
system of cyclical poverty is to change the way in which
children are taught.
With the present system and its use
of tests, the child is not being educated as to how to
survive outside the school system.
The skill, of which
reading plays the major part in what is learned in the
way of facts and skills (mainly reading), do not relate the
child's needs.
Teaching by means other than reading, such
as actually doing in skills courses or by audio-visual means
should be employed to a greater extent. 20
The judicial process has been involved in the quality
of education and the running of school systems since public
schools came into existence.
The courts tra.d i tionally
would not set out new mandates for the schools to follow
but would merely scrutinize the schools to see that the
laws under which the schools operated were in fact actually
being followed.
This philosophy was not to stand forever.
In Brown v. Board of Education, 347 U.S. 483, the Supreme
15
Court handed down the decision declaring that separate but
equal schools based on race were inherently unequal.
Segregated schools were no longer to be allowed by law, and
they were to be dismantled with all deliberate speed.
The
Court went further in recognizing that racial discrimination
was illegal under the equal protection clause of the 14th
Amendment.
Education was recognized as one of the great
tools available to a state to prepare a child "to cultural
values, preparing him for later professional training and in
helping him to adjust normally to his environment.,,21
The
evidence produced the decision that without equal opportunity
available to all, the child who is deprived of the opportunity
has only a doubtful chance to succeed in life. 22
The first cases dealing with the use of tests and how
they applied to the Brown mandate of equal educational opportunity with no segregation allowed on a de jure basis arose
out of the state laws and local district rules on transferability of students from one school to another.
In Jones v.
School Board, City of Alexandria, 179 F.Supp. 280, (E.D.Vir 1959),
aff'd. 72 (4th Cir 1960), the courts construed a plan of the
School Board which had a six-step criteria for deciding into
which school a student would be placed.
1. Q. tests were one
of the criteria used for this determination, and in the case
of the seventeen parties plaintiff, it was a major portion of
the decision made to deny the desired enrollment.
In this
case the court noted that the use. of 1.Q. tests for placement
16
purposes was not unfair if all students or prospective
students were given the same test.
By all students being
given the same test, the court reasoned that there could be
no racial factors involved and that the type of test used
was not for the courts to sCI"utinize, but rather an administrative judgment for school officials. 23 The only relief
granted was to those students who had obtained scores higher
than some student in the school to which a transfer was
24
requested.
In the earlier case of Shuttlesworth v.
Birmingham Board of Education, 162 F.Supp. 372 (N.D.Alab 1958),
aif'd. 358 US 101, (1958), the court had already observed
that a scheme of placement which used testing as one of
its major criteria was not unconstitutional on its face in
that it provided all students with the same, objective means
to transfer to another school.
In the case of Green v. School Board, City of Roanoke,
c:d.h 'p",
304 F.2d 118 (4th Cir 1962), the suit concerned the applied
for transfer of twenty-eight Negro students to previously all
white schools.
Under the Virginia Pupil Placement Laws
for a student to transfer to another school, place of
residence was one factor but the major factor involved
was that of having to score above the median score of the
proposed new school.
While the court accepted test scores
as being a valid measure by which placement could be
achieved, they also held that where they are used in a
racially discriminatory manner, then they would be looked
17
at more closely, and if race played a part in the decision
of whether to allow the applied for transfer, then it would
be invali d.
"The requirement that a Negro seeking transfer
must be well above the median of the white class he seeks
is clearly discriminatory ... 25
The further requirement
that a student seeking transfer who has a brother or
sister in the proposed school be above the median test scores
for that school was also held to be discriminatory in nature
and would not be allowed to continue.
However, it could be
that the reason for these rulings was based on the fact that
white students wishing to transfer were not placed in the
same situation as those Negro students, for the white students
were not required to show the median test scores to transfer
to another
~Ohool.26
The Louisiana Pupil Placement Act was looked upon
unfavorably in 1962 as to its requirement that any child
who wished to enter a school other than the one to which
he was originally assigned must take tests as to ability
and readiness for school in the case of Bush v. Orleans
Parish School Board, 204 F.Supp. 568 (1962), (E.D.La. 1962),
rev'd. )12 F.2d 747 (5th Cir 196)).
The Court noted that
only 12 of 1),000 Negro students entering the first grade
had achieved the right to attend a school with white
students.
The court did not hold the placement pr oc ra m a s
being unconstitutional on its ,face, the i mpe r missible activity
involved was that only the Negro students seeking transfers
were required to take the tests used.
18
The school system was
held to be invalidly segregated and otherwise valid
testing procedures would not be allowed to perpetuate
the segregated system.
The relief granted was that all
students were to go to the school nearest their home. 27
The constitutional issues involved with testing as a
means of what school a child will attend from those cases
decided in the early 1960's did not deal with the validity
of testing per se.
The courts accepted the concept that
ability was a proper means by which students could be assigned
to one school or another.
The question of whether the
measure~
ments of ability were valid or invalid either never arose
or were dismissed without discussion.
The only means for
a Negro student to attack the use of tests was the way in
which the school system used the tests.
If the use applied
only to the Negro student, it was invalid, and if the results
would justify his transfer but the school system would not
allow this transfer, then again the use to which the test
was put would be a denial of Equal Protection.
In 1969 the U.S. Supreme Court handed down the decision
in Alexander v. Holmes County Board of Education, 396 U.S. 19,
(1969).
In this decision the court held that Brown, supra,
language of desegregation with "all deliberate speed" was
no longer the law.
The court held that the fundamental
rights of school children in Mississippi attending segregated
19
scl).ools could no longer be tolerated and that "every school
district is to terminate dual school systems at once and
to operate now and hereafter only unitary SChools.,,28
In response to the demands that a unitary school system
be commenced immediately, the lower Federal courts took a
different stance upon the use of tests to determine which
school a student would attend.
In Anthony v. Marshall
County Board of Education, 419 F.2d 1211 (5th Cir 1970),
1219, the 5th Circuit held that in the case of the Marshall
County School Dt., the testing program would have to be
discontinued until a unitary system was developed.
The
court did not go to the validity of testing per se but
put off . that issue until the unitary system was achieved.
In Lemon v. Bossier Parish School Board, 444 F.2d 1400 (5th
Cir 1970), the same circuit went further by saying that not
only would they not allow testing to be used as criteria for
placement before a unitary system was established but that
testing could not be used until the unitary system had been
in operation for several years .
The 5th Circuit again declined
to rule on testing, leaving that self-termed "troubling question" until a later date.
Furt her, those school systems which
still operated as dual systems after the decision in Alexander
would no longer be able to retain the use of tests to justify
. t I 29
1.
testing is not to be permitted at least until a
unitary school system has been in operation for several years.
The court would not say whether testing would be allowed once
20
the unitary school system is achieved but left that question
to be decided later.
If, however, it was
reinstigate~
after
several years, the probable criteria against which the use
of testing would be judged would be whether the testing had
the effect of forming or perpetuating a dual system. 30
No justification for the elimination of placement by
testing is offered by an appellate court.
A district court
in Moses v. Washington Parish School Board," 330 F. Supp. 1340
(E.D. La1971), aff'd 456 F.2d 1285, (5th Cir 1972), in striking
down homogeneous ability grouping based largely upon tests,
offered the following justification.
In the South before
the development of unitary school systems those members of
the Negro race were educated in large part at inferior schools.
Whites as a whole were educated in better facilities with
better faculties and with better materials.
To place the
disadvantaged Negro on a testwise competitive basis with
white students who had received better education before the
unitary system has had years to correct the bad effects of
segregated education, would serve merely as a tool to resegregate the same school system. 31
The use of testing to segregate the poor test scores
from the schools of the best test scores is not the only
potentially improper use for testing in the schools.
While
in the cases of the early 1960's, Jones, Green and Bush ,
the question of the validity of tests never arose.
The
test scores were assumed to be valid, and only the procedures
involved were attacked.
In Hobson v. Hanson, 269 F. Supp. "
21
401 (DOC 1967), appeal dismissed J9J US 801, aff'd Smuck v.
Hobson, 408 F.2d 175 (D . C. Cir
196~),
the track system (a
four-track system similar to that described previously) was
attacked as being unfair to Black and poor white students. The
system was found to be unconstitutional.
Under the Washington, D. C., track system to which
Judge Skelly Wright devotes the majority of his 119-page
opinion, the track system was found to contain. an overall
effect of unfair education for those from disadvantaged
backgrounds.
The District of Columbia track system had four
tracks ranging from the highest--the Honors Track--to the
lowest- -the Special Academic Track.
These four tracks were
begun in elementary school with testing being used in the
first grade and several grades above that in order to
determine in which track a student was to be placed. Judge
Wright, in ordering the total abolishment of the track system,
weighed heavily the use of tests and testing procedures
in assigning a student to a particular track. J2
In attacking the tests and not the procedure the court
found that two types of tests were usedl
achievement tests
to test the students apparent grade level in a given field.
and scholastic aptitude tests to measure (in all tests used
but one) the verbal ability of the student with a label of
predicting future academic ability.
The scholastic aptitude
tests received the most attention with the following faults
being found.
Low test scores could easily be caused by the
22
poor environment of the child taking the test.
Since the
poor have little exposure to proper English, they would
not score .well on verbal tests. Another problem was that
those of lower class backgrounds often have a negative
attitude towards the exam.
well
, . and thus do poorly.
They feel that they cannot do
Test anxiety is especially high
in those persons who do not have experience in test taking I
their fear will cause them to forget or guess answers.))
The problem of the student taking the test is not the
only problem in the giving of standardized tests.
The group
of students who set the norms on the tests are not of the
:",
same background as those who take it from the underprivileged
background.
The tests measure what a white, middle-class
child is expected to know, not what the black, lower-class
child knows.
A further problem exists for those students . of
a different racial background than the white student.
A Negro
child is brought up in a world where he is taught by his
environment that he is an inferior person.
His racial self-
consciousness coupled with the society's telling him he is
inferior leads to lower test scores than he might make otherwise.)4
Coupled with all these problems is the effect
whioh the track system has on the student in it.
If the
student has been placed in a lower track due to invalid
tests, when he takes future tests his score will suffer for
even more reasons than his earlier tests.
To be placed in
a lower track only tells the student he is inferior, it
23
robs him of his self-esteem and he will only do poorly on
the tests.
Added to this is the use of achievement tests
throughout his sch o-ol career.
A student in a lower track
where he is not exposed to work at his own grade level,
even if he knows everything his teachers teach him, will
not do grade level work. 35 The disadvantaged are placed
in an educational situation that may be below their
academic ability by the use of tests which are invalid
for them as a group.
The education they receive keeps
them poor, and when they have children the cycle begins
anew.
Judge Wright did not hold that tracking per se was
unconstitutional.
What he did hold was that Negro and poor
white students were being denied equal protection and due
process of law by the way that tracking was being used in
Washington, D.C.
It was not constitutional, for the means
by whioh students were placed in their respective tracks
was by testing whioh was not valid.
When the means of classi-
fication also became invalid and unconstitutionally
discriminatory. 36
In striking down the track system of the District of
Columbia, Judge Wright did not abolish a track system or the
use of tests entirely.
If a culturally fair test were
developed, its use could probably not be banned.
One sugges-
tion which could validate the track system would be to make
it much more flexible.
In this type of system the student
would be placed in a heterogeneous classroom as to almost
24
all activities with tracking done only as to certain courses.
Review of the students progress would occur often without the
student being stuck in a class as was the case in the District
,
of Columbia sc'h oOls.
The testing would be used only to
catch the students weaknesses and not only would the grouping be on a homogeneous
level~
but the class would be divided
into heterogeneous groups to work on special projects where
those of different apparent abilities would work together to
not only complete the project but learn from each other.
Older students would be used to tutor those younger students
who had specific problems.
This system could only be used
in a "unitary" school and would be subject to the"effect"
that it had on the school system. J7
The ' sohool system would not have to pursue any form of
ability grouping. The arguments against ability grouping on
an educational level that its benefits (if any) are far outweighed by its drawbacks.
Studies show that there was no
overall improvement as to the students achievement,J8 or
ability to learn concepts. J9 The overall effects of ability
grouping as opposed to heterogeneous grouping were shown to
balance out in a compilation of most of the studies considered
valid.
The results showed that in general the "slow" learner
did best in a heterogeneous grouping while the results for the
"average" students were mixed and those for the "gifted"
students slightly favored homogeneous groupings.
In all
cases, the differences were minimal for each group.40
With
such mixed results, the intermixing of different students was
25
felt to be better for it provided more integration and was
thus more democratic. 41
Analagous to the school testing problem is the use of
tests in employment.
The use of tests in the areas of who
is employed and who is to be promoted is widespread, both
in private industry and in the government.
In Griggs v.
Duke Power Company, 401 US 424, 1970, the Supreme Court
construed a provision of Title VII of the Civil Rights Act
of 1964, Section 70)(b) which allows the use of ability tests
in hiring as long as results do not discriminate on the basis
of race, color, religion, sex or national origin. 42 Duke
Power Co. was using tests and/or high school graduation in
determining who would be hired and who would be , promot'e d.
The company used two tests and based on the results of these
tests, the effect was to leave those Negroes who had gained
employment at the lowest end of the pay and work scale.
The
Court found that while tests which were specifically job related
would be upheld as within the law, these tests were not
related to job performance and since they had the effect
of discriminating against Negroes, their use would not be
allowed to continue. 4 ) Griggs, while it was decided under a
specific act of Congress and not under the guarantees of the
Constitution, is analagous to the school testing problems.
The equal protection as provided by the statute could be
extended to the schools under the Constitution.
Where the tests
used are discriminatory in their effect, their use could be
26
banned.
Action on a similar act in state legislatures could
be passed to insure the use of fair, non-discriminatory tests
in school.
What is passed as law in employment practices
could be passed
~s
law in education--the right to which is
guaranteed to every child by all states.
Ability grouping into homogeneous groups was again
the subject of judicial review in Moses, supra.
While the
Washington Parish School District did not follow the strict
tracking system previously used in Washington, D.C., the
District did use testing the group students in individual
schools.
Here, the grouping was based on reading achieve-
ment and ability tests administered by each school only
shortly after the system had become a unity system.
In
enjoining the use of tests to group students, the court found
that there was a disproportionate number of Black students
in the lower sections.
The use of tests in determining which
students went into which section was invalid not only on the
basis of being completely verbal, but also on the basis that
the Black students had been educated in the previous years
in inferior all black schools.
In dictum the court also
criticized the use of homogeneous grouping and a threefold
basis.
First, the fact that low scoring students are not
expected to do well by their teachers and they, accordingly,
fulfill the expectation by their lower motivation to do well.
Secondly, slow learners do not have the better students in
class with them and do not learn vicariously from classroom
encounters.
27
Thirdly, the quality of instruction provided
the lower section is not up to the levels of the other
sections. 44 These findings would only support the argument that
homogeneous grouping should be disallowed and that heterogeneous grouping best serves the students and the American
society.
In P v. Riles, 343 F. Supp. 1306, (N.D. Cal 1972), the
plaintiffs alleged that the use of I.Q. tests to place students
in Educable Mentally Retarded classes was discriminatory in
that by the use of these tests, the EMR classes were
populated with a greater percentage of black childr.e n than
the racial makeup of San Francisco Unified School District
would proportionately
hav~.
The court followed the reasoning
of Hobson. supra, by allowing the plaintiffs to show the
overproportioned black makeup of EMR classes and allowing
this fact to shift the burden on the schools to show that
there was no racial reason for the overrepresentation of
blacks in EMR classes.
The School District tried to
depend on the basis that the I.Q. ' tests are not the reason
for the racial imbalanoe of, in the alternative, even if
the tests are racially biased (a fact found to be true by
the court), it was the best means possible to classify
.
students at that time.
45
defense was justifiable.
The court did not feel that either
Since the racial imbalance was
the result of the use of biased I.Q. tests, a preliminary
28
injunction was issued banning their use if racial imbalance
was the result of said use,
However, the court did say that
if the School District developed a test which was not
racially biased, its uses would not be improper,46
The problem of testing and unequal educational opportunity takes on a somewhat different view when the alleged
discrimination is not against Blacks,
Despite the language
in Hobson, supra, including poor whites as being discriminated against, poor whites have not traditionally been
viewed as a distinguishable class of persons.
While at
least one other court has mentioned poverty as a means to
show bias in testing (Burruss v. Wilkerson, 301 F.Supp. 1237
(W.D. Vir 1968) aff'd 397
u.s.
44 (1969) at 1239), no court
higher than , a District Court has so ruled except in affirming
the Hobson case where other grounds were present for affirmance.
Indeed, in the recently decided San Antonio Independent School
District v. Rodriguez, 93 S.Ct. 1278 (1973), case, the Court
held that disparity of school district wealth was not a basis
for forcing the state to have equal distribution of funds to the
schools throughout the state.
While disparity offunds spent
interdistrictly within a state is not directly analagous
to the testing procedures with a school district, it tends
to show that the Supreme Court will not look to poverty as a
basis of discrimination in all cases.
The Chicano student also poses a different problem
for the schools in how they use tests to separate stUdents.
The Chicano student in all likelihood is at least as familiar
29
with the Spanish language as the English language, if not
more familiar with Spanish.
The problems which the Chicano
has with English verbal tests are as great as that of the
Black. 47 The major Constitutional problem would apuear to
be that Chicanos, unlike Blacks, have never been of1Jcially ,
recognized as a minority group.
Though nearly always , recog-
nized as such, the Supreme Court i n Hernandez v. Texas, 347
U.S. 475 (1954), laid down the objective test of whether
the community recognized the group as an easily identifiable
group.
Assuming that this barrier can be overcome, the same
arguments which apply to Blacks and the educational use of
testing apply to Chicanos as well.
In Cisneros v. Corpus
Christi Independent School District, 324 F.Supp. 599 (1970)
at 605, (S.D. Tex 1970) modified 467 F 2d 142 (5th Cir 1972),
the court applied the ruling s of Brown, supra, to Chicanos as
a class for the discrimination they suffered as an identifiable
minority.
The court ordered the end to discriminatory school
policies as they applied to Chicanos.
Assuming group status
can be shown, Chicanos should be in the same position as
Blacks to attack testing practices.
The ruling of Hobson, supra, which did away with the
track system was not the only subject on which Judge Wright
touched I he further ordered that compensatory education
be introduced into the school system. 48
In doing so, the
court observed that the disadvantaged child cannot compete
with his more fortunate classmates without compensatory
30
education and he must receive it.
The apparent means by
which those to receive compensatory education, an idea
richly received but with few positive results,49 would be
on the basis of teacher evaluation, not by the use of tests.
In Mills v. Board of Education of District of Columbia,
348 F.Supp. 866 (1972) (DeC 1972), The court found that certain school-age children were being denied the right to
attend school.
The basis for this denial was that these
children were "exceptional" children (retarded, disturbed,
handicapped, and others with behavioral problems).
The
process by which these children were excluded from the schools
was found to be a denial of due process in that there was
no hearing considering the suspensions. 50
Further, the
District had' been placed under a duty fiy Congress to provide
an education for school age chi l dren in the District.
School Board c,o uld not avoid this dU,t y.
The
Further, if they
wished, they would be allowed to pay for the child's education at another institution.
Since the District has the duty
to provide education for all school-age children, it must
provide an education of the best quality possible within
economic restrictions. 51 The system would not be required to
provide the best possible facilities for educating these
"exceptional" children if it would take a disproportionate
amount of funding from the other programs, but would
require the system to provide teachers and facilities of
value to these children.
While the court does not mention
31
it, in order to diagnose certain problems such as retardation or emotional disturbance accurately, tests must be
used.
The administration of these tests would be conducted
by someone who is qualified to not only give but interpret
the results.
The best solution would be to have a
psychologist do this.
These are the persons with the
specialized knowledge to diagnose a disturbed or retarded
child, not a school employee whose knowledge is not as
specialized as the psychiatrist or psychologist.
The basic purpose of education is to provide each child
with the best education with which he can be provided.
In
trying to achieve this goal, tests have been developed and
used to determine What is best for the student.
If the test
is fair in that it does not discriminate against the disadvantaged, its use will not fall into legal difficulties.
If,
however, its use is discriminatory in its effect, its use will
probably not be tolerated.
The use of a track system with
its inherent faults and questionable results will be upheld
if the methods used to place students are valid.
;{opefully,
the schools will turn away from the rigid track structure and
move to a heterogeneous classroom or one where only a small
part of the curriculum is under a track system.
With the use
of valid tests administered by those who are highly qualified
to give and interpret the tests, those students who are disturbed can be discovered and a new method of teaching,
using strengths to build up weaknesses, can be utilized.
32
In that way, the future of the child as he enters school
will not be determined to be disappointing but it will give
each child the "opportunity for a rewarding life.
FOOTNOTES
1.
D. Goslin, The Search for Ability, pg. 57 (1963).
2.
Id., at 63.
3.
A. Anastosi, Psychological Testing, 3rd ed., pg.46,
Macmillan Co., N. Y., 1968.
"Legal Implications of the Use of Standardized
4.
Ability Tests in Employment and Education," 68 Columbia Law
Review, 736, 1968.
5.
Anastosi, at 283.
6;
Id., pg. 3-4.
C. Hanson, Four-Track Curriculum for TOday's High
7.
Schools, Chpt. 7, 8, 9, (1964) •
8.
Id., chpt. 5, 6.
9.
Id. , chpt. 3, 4.
10.
lli, chpt. 2.
11.
Leon J. Lefkowitz, "Ability Grouping 1 De Facto
Segregation in the Classroom," Clearing House, 461 293-297,
Jan. 1972, at 494.
12.
Punhe, "Competence as a Basis of Student Assignment,"
32 Alabama Lawyer 28; 1971.
13.
Id., at 25.
14.
Rosenthal and Jacobson, ~gmalion in the Classroom,
Holt, Rinehart and Winston, N. Y., 1~8, at 54.
15.
Id., at 75.
16.
Id., at 101.
17.
68 Columbia Law Review 736.
, 18.
Mosteller and Moynihon, On Equality of Educational '
Opportuni ty, Random House, N. Y., 1972, at 37.
19.
Summarized in ' HGbson v. Hanson, 269 F.Supp. 401,
(D. D. C. 1967), appeal dismissed 393 US 801, (1969, aff'd.
Smuck v. Hobson, 408 F.2d 175 (D. C. Cir 1969), at 485-487.
33
34
20.
Norman and Margret Silberberg, "Is There Such A
Thing as a Learning Disabled Child?" Education Digest, 37. 14-17,
Sept., 1971, at 16.
21.
Brown v. Board of Education, 347 U.
(1954) at 493.
22.
s. 483,
Id., at 74 S. Ct. 691.
23.
Jones v. School Board. City of Alexandria, 179 F.Supp.
280 (E. D. Vir 1959) aff'd. 278 F.2d 72 (4th Cir 1960) at
283-284.
24.
Jones, 287 F.2d 72 (4th Cir 1960), at 78.
25.
Green v. School Board, City of Roanoke, 304 Fed. 118,
(4th Cir 1962), at 123.
26.
Green, at 121.
27.
Bush v. Orleans Parish School Board, 204 F.Supp.
568 (E. D. La 1962) rev'd. 312 F.2d 747. (5th Cir 1963).
28.
Alexander v. Holmes County Board of Education,
396 U. s. 19, (1969).
29.
United States v. Tunico County School District, 421
F.2d 1236, (5th Cir 1970).
30.
wrifht v. Council of the City of Emporia, 407 U.S.
451 (1972), at 70.
.
31.
Moses v. washinfton Parish School Board, 330 F.Supp.
1340 (E. D. La1970), aff'd 56 F.2d 1285 (5th Cir 1972), at 1345.
32.
at 477.
Hobson v. Hansen, 269 F.Supp. q:01 (1967), (D.D.C. 1967)
33.
Hobson, at 479.
34.
Hobson, at 482.
35.
Hobson, at 484.
36.
Hobson, at 513.
37.
W. Findlay and M. Bryan, "Ability Grouping. Do's and
Don't's," Integrated Education, 9. 31-36, Sept, 1971, at 36.
38.
Phil Cartwright and ' Dean McIntosh, "Three Approaches
to Group Procedures for the Education of Disadvantaged Primary
School Children," Journal of Educational Research, 65. 425-9, MayJune, 1972.
35
39.
A. Pilli.rd and E. Lenhe, "The Effect of Ability Grouping on Concept Learning," Journal of Educational Research,
64. 208-212, Jan. 1971.
40.
Walter Borg, "Ability Grouping in the Public
Schools," Journal of Experimental Education, 34. 1-97, Winter,
1965, at 85-90.
41.
Bahnmuller and Lyman Zweibelson, "Team Teaching
and Flexible Grouping in the Junior High School Social Studies,"
Journal of Experimental Education, 34. 20-32, Fall, 1965.
1313.
42.
Civil Rights Act of 1964, 42 U.S.C. ~2000 e-z.
43.
Griggs v. Duke Power Co., 401 U.S. 424 (1970).
44.
Moses, at 1345.
45.
P v. Riles, 343 F.Supp. 1306, (N.D. Cal 1972), at
46.
L
at 1314-15.
47.
"De Jure Segregation of Chicanos in Texas Schools,"
7 Harvard Civil Rights--Civil Liberties Law Review, at 351-353.
48.
Hobson, at 515.
49.
Sol Gordon, "The Bankruptcy of Compensatory Education,"
Education Digest, )6. 28-31, Dec. 1970.
Mr. Gordon suggests that problems of the student must be
discovered quickly and corrected then if any positive results
are to be seen. Remedial classes only keep the student further
down the educational ladder.
50.
Mills v. Board of Education of District of Columbia,
348 F.Supp. 866, (D.C.C. 1972), at 875.
51.
Mills, 'at "878-79.
)6
BIBLIOGRAPHY
Books
Anasotosi, Psychological Testing, )rd ed., Macmillan Co.,
N. Y., 1968.
Borg, Walter, "Ability Grouping in the Public Schools,"
Journal of Experimental Education, 34,1-97, Winter, 1965.
Cartwright, Phil and McIntosh, Dean, "Three Approaches to
Group Procedures for the Education of Disadvantaged
Primary School Children," Journal of Educational
Research, 65,425-9; ·. l\lay-June; -1972.
"De Jure Segregation of Chicanos in Texas Schools," 7
Harvard Civil Rights--Civil Liberties Law Review,
)14, 1972.
Findlay, W. and Bryan, M., "Ability Grouping, Do's and Don't's,"
Integrated Education, 9,)1-)6, Sept., 1971.
Gordon, Sol, " The Bankruptcy of Compensatory Education,"
Education Digest,. )6,28-)1, Dec., 1970.
Goslin, The Search for Ability, Holt-Rinehart and Winston,
N. Y.,
196).
Hansen, Four Track Curriculum for Today's High Schools,
. Macmillan, N. Y., 1964.
Lefkowitz, Leon, "Ability Grouping I De 'Facto Segregation in
. the Classroom," Clearing House, 46,29)-297, Jan., 1972.
"Legal Implications of the Use of Standardized Ability Tests
in Employment and Education," 68 Columbia Law Review,
736, 1968.
Mosteller and Moynihan, On Equality of Educational Opportunity,
Random House, N. Y., 1972.
Pi lard , A.: and Lenhe, E., "The Effect of Ability Grouping on
Concept Learning," Journal of Educational Research,
64,208-212, Jan., 1971.
Puhne, "Competence as a Basis of Student Assignment, "
)2 Alabama Lawyer 28, 1971.
Rosenthal and Jacobson, Pygmalion in the Classroom, Holt,
Rinehart and Winston, N. Y., 1968.
37
Silberberg, Norman and Silberberg, Margret, "Is There Such
a Thing as a Learning Disabled Child?" Education
Digest, 37114-17, Sept. 1971.
Zweibelson, Bahnmuller and Zweibelson, Lyman, "Team Teaching
and Flexible Grouping in the Junior High School Social
Studies," Journal of Experimental Education, 34120-32,
Fall, 1965.
Cases
Anthony v. Marshall County Board of Education, 419 F.2d 1211,
(5th Cir 1970).
Alexander v. Holmes County Board of Education, 396 U. S.
19, (1969).
Brown v. Board of Education of Togeho, 347 U. S. 483, (1954).
Burruss v. Wilkerson, 301 F.Supp. 1237 (W.D. Vir 1968), aff'd.
397 U.S. 44 (1969).
Bush v. Orleans Parish School Board, 204 F.Supp. 568 (E.D. La 1962),
rev'd. 312 F.2d 747 (5th Cir 1963).
Cisneros v. Cor us Christi Inde en dent School District,
32 F.Supp. 599 S.D. 'rex 1970 ,modified
7 F.2d 142,
(5th Cir 1972).
Green v. School Board, City of Roanoke, 304 F.2d 118, (4th Cir 1962).
Griggs v. Duke Power Co., 401 U.S. 424 (1970).
Hernandez v. Texas, 347 U.S. 475 (1954).
Hobson v. Hanson, 269 F.Supp. 401, (D.D.C. 1967), appeal dismissed,
393 U.S. 801, (1968), aff'd. Smuck v. Hobson, 408 F.2d 175,
(D.C. Cir 1969).
~J~o~n~e~s7v~.~S~c~h~o~o~1~B~o~a~rpd~~~~o~f~A~1~e~x~a~n~dr~1~·a7'
E.D. Vir 1959 ,
278 F.2d 72
179 F.Supp. 280,
4th Cir 1960).
Lemon v. Bossier Parish School Board, 444 F.2d 1400 (5th Cir 1971).
Mills v. Board of Education of District of Columbia, 348
F.Supp. 866 ID.C.C. 1972).
Moses v. Washin ton Parish School Board, 330 F.Supp. 1340
E.D. La 1970 , aff'd
Cir 1972).
P v. Riles, 343 F.Supp. 1306 (N.D. Cal 1972).
)8
Shuttlesworth v. Birmin ham Board of Education, 162 F. Supp.
372 N.D. Alab. 195 ,aff'd. 35 U.S. 101, (1958).
United States v. Tunica County School District, 421 F.2d
12)6, (5th Cir 1970).
Wright v. Council of the City of Emporia, 407 U.S. 451 (1972).
Statutes
Civil Rights Act of 1964, 42 U.S.C. ~2000 e-z.