Legal Briefs: Stopping The Smarter Balanced Assessment

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).

Previous 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.

The history of lawsuits against standardized tests went as follows:

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..

Moses v. Washington Parish School Board (1971):   The case was also somewhat unique because it involved a recently-desegregated school. The courts ruled against test use for tracking under these circumstances.

Larry P. v. Riles (1972):   IQ tests were being used to place students in EMR classes.   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,  the court found that the racial differences in test scores were due to cultural bias in the tests.

Special Education (PASE) v. Hannon (1980):  This similar case did not side with the argument above, because other criteria were also used for placement and many of the school psychologists were black, Judge Grady found for the defendants.

Diana v. California State Board of Education 1970:  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.

Bakke v. Regents of the University of California (1976): 16% of entry spots were reserved for minority candidates;   the special admissions policy was challenged as being discriminatory against White applicants because race was one criterion for disadvantagement.

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.

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.

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 test.States or school districts must be able to demonstrate that a test is valid for the purpose for which it is being used.

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Legal issues become involved when tests are used as a mechanism for social control.   The issues revolve around the validity of the test for a specific use…  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).

There are adequate grounds and precedents for a lawsuit to stop Common Core and the Smarter Balanced Assessments, especially during the K-3 ages.  Mounting evidence that such testing is harmful to children at such a young age, is becoming well documented.  If Common Core can ruled to not be taught in k-3, since it needs those years for its development, it must be scrapped entirely….