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.”

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 5^th 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 5^th 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 5^th 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.).

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?