Court Rules for High-Stakes Testing

K-12 Testing

In a case with potential national significance, Federal District Court Judge Edward Prado has ruled that Texas has the legal right to require its controversial high school graduation test, the Texas Assessment of Academic Skills (TAAS), even though the judge acknowledged that the exam did have legally meaningful disparate impact against African American and Latino students. While he supported the plaintiffs’ basic claim of disparate impact under the regulations governing Title VI of the U.S. Civil Rights Act (see Examiner, Fall 1999), Prado found that the state had demonstrated “educational necessity,” concluding that “the challenged practice serves the legitimate educational goals” of the state.


Plaintiffs’ attorneys, the Mexican American Legal Defense and Education Fund (MALDEF), argued that alternatives based partly on classroom assessment would meet the state’s goals without disparate racial impact, but Prado concluded, “Plaintiffs failed to present evidence that this, or other, alternatives could sufficiently motivate students to perform to their highest ability.” He added that the proposed alternatives would not motivate schools and teachers.


In essence, Prado concluded that test-based discrimination is not illegal in Texas because only a high stakes exam can force students and educators to work hard enough and be focused enough to learn the “basic skills” measured by the TAAS.


The decision is clearly a setback for opponents of high-stakes testing. Legal challenges such as this are expensive and complicated, and Prado’s ruling no doubt will be used, in court and out, to justify such testing. It may make success in other cases more difficult.


MALDEF has decided not to appeal Prado’s ruling, primarily because of the extremely conservative makeup of the Fifth Circuit Court of Appeals.


Prado clearly accepted the state’s claim that use of the TAAS was an essential element in its program for school reform. Repeatedly, his decision leaned heavily toward defendants’ arguments, even when he concluded the accuracy of factual claims presented by plaintiffs.


Another court could interpret the same facts differently, especially since the issue of disparate racial impact is not in doubt in many states. A judge might conclude, for example, that a reasonable alternative to high stakes does exist, or that the presumed benefits of the test do not outweigh its harmful impact. Despite Prado’s finding that the test is necessary to force improved outcomes, FairTest research has found that states without high-stakes tests are more likely to show gains on the National Assessment of Educational Progress than are states with such tests (see Examiner, Winter 1997-98). And research on motivation suggests that high-stakes testing reduces motivation for some students and for others shifts the focus from learning to passing the test (see Examiner, Winter 1997).


There were a number of significant findings in the case, including:

• Judge Prado concurred that the plaintiffs had shown an increase in the dropout/forceout rate (see Examiner, Fall 1999), despite state denials that such an increase existed. But, said the judge, plaintiffs did not prove that the tests caused the rise in dropouts. Interviews with dropouts could provide the causal connection, and future plaintiffs should consider conducting such research.

 • The judge concluded that the court “cannot quarrel” with evidence showing that the test is constructed using methods that increase the likelihood of low scores by African Americans and Latinos (see related story). However, Prado said such methods are common in test construction and concluded, “the test, as validated and equated,” serves the state’s interest in identifying and remediating educational problems.

 • Although educational disparities continue to exist in Texas, Prado concluded that the many years of using the test for high-stakes decisions meant that its content probably was taught. Thus, students have had an adequate opportunity to learn the “basic skills” tested. States which have used a test for less time or who claim to be testing to “high standards” might be at risk of having the high-stakes uses delayed by a court. Ironically, plaintiffs’ argument that teaching to the test dumbed down curriculum and instruction in many schools (see related story) may have helped support Prado’s finding that the test was the focus of teaching, giving African American and Latino students adequate opportunity to prepare for the test.


The decision in G.I. Forum, et al., v. Texas Education Agency, et al., Civil Action No. SA-97-CA-1278EP is available on the web at