Academic journal article Vanderbilt Law Review

Killing the Messenger: The Misuse of Disparate Impact Theory to Challenge High-Stakes Educational Tests

Academic journal article Vanderbilt Law Review

Killing the Messenger: The Misuse of Disparate Impact Theory to Challenge High-Stakes Educational Tests

Article excerpt

You don't solve the problem by assaulting the messenger...who brings bad news; you don't destroy the thermometer that tells you...a...fever exists; you don't cure malnutrition by throwing out the scales that identify...underweight babies.1

Educators and policymakers have long been concerned about low levels of American academic achievement.2 And with good reason. In recent studies by the U.S. Department of Education, twenty-three percent of American twelfth graders were unable to read at even the most "basic" level;3 more than one-third of all high school seniors lacked basic competency in mathematics;4 and fifty-seven percent of high school seniors lacked basic knowledge of American history.5 IMAGE FORMULA7

Perhaps even more troubling than the generally poor state of academic achievement among all American high school students is the persistent educational gap between black and Latino6 students, on the one hand, and white students, on the other.7 On a wide variety of measures (including test scores, grade point averages, and high school IMAGE FORMULA9and college graduation rates), black and Latino students consistently lag behind white students at the same educational level.8

In an attempt to address the problem of low academic achievement in general-and the minority achievement gap in particular-politicians9 and education reformers10 have pushed for uniform academic standards and increased accountability. The movement in favor of educational standards and regular academic assessments seeks to hold students, teachers, and administrators accountable by rewarding academic achievement and by exposing academic failure to public criticism as well as to corrective and remedial action. Reformers argue that only by testing all students, and by attaching consequences to the results of such tests, can we encourage teachers to focus on a uniform core curriculum, motivate student learning, and raise levels of student performance.11 Proponents of this new accountability also contend that any serious attempt to close the minority achievement gap must necessarily include a testing regime to provide the public and policymakers with comparative data and to provide incentives to raising achievement levels in even the most disadvantaged communities.12 IMAGE FORMULA11

Generally speaking, the new accountability takes the form of academic assessments that a student must pass in order to advance to the next grade level or receive a high school diploma. Typically, students who fail these assessments are provided remedial help and additional chances to pass the exam.13 Despite the good intentions behind such reform efforts, in the short term a disproportionately large number of African-American and Hispanic students have failed such tests, both on the first try and after multiple attempts.14

Because of the high failure rates of minority students on standardized academic assessments, some testing critics argue that requiring students to pass a mandatory exam in order to move to the next educational level will entrench current inequalities.15 Others go further, arguing that the tests are themselves "biased" against African-American and Latino students and that the tests, therefore, fail to measure accurately what students from these communities actually know.16 For one or both of these reasons, many groups that IMAGE FORMULA13purport to represent the interests of minorities and organizations that oppose standardized testing argue that tests which produce disproportionate racial or ethnic results are discriminatory.17

As a logical outgrowth of this view, a number of commentators and special interest groups have advocated using disparate impact theory-which has its roots in the law of employment discrimination18-to mount legal challenges to a variety of facially neutral testing regimes with disproportionate demographic outcomes. …

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