The Education Department today will release a new draft of guidelines on how schools and colleges can use standardized tests without violating the civil rights of minority students, who have generally scored lower on such tests than whites.
Under federal civil rights laws, the guidelines say, standardized tests must be "educationally justified" if their use in deciding who graduates from high school, advances to the next grade or gets admitted to college results in a "disparate impact" on students of different races. While the department advises that disparate impact "alone is not sufficient to prove a violation of federal civil rights laws," it notes that in such instances a court can require a school to provide sound educational reasons for its testing practices.
But even while cautioning against the improper use of "high stakes" tests to determine students' educational opportunities, the department's Office for Civil Rights put itself squarely behind the higher academic standards enforced by such tests.
"Federal civil rights law affirms good test use practices," Norma V. Cantu, assistant secretary for civil rights, wrote in a cover letter accompanying the draft.
The guidelines, which will be issued in final form next year, do not carry the force of law. They are described as a summary of the relevant federal laws and technical standards for sound testing developed by independent experts.
In May, an earlier draft of the guidelines provoked criticism from higher education leaders and conservative commentators who suspected the Office for Civil Rights was attempting to create a handbook on how to file civil rights lawsuits against schools and colleges that use standardized tests to make educational decisions.
Suspicions were heightened because of the office's reputation for liberalism and the sudden appearance of the first draft, which was rushed into print to coincide with a speech Education Secretary Richard W. Riley gave on the 45th anniversary of the Brown v. Board of Education decision that outlawed school segregation.
The substance of the revised guidelines has hardly changed--apart from the inclusion of guidance on testing disabled students--but the new draft is worded with less of a legalistic edge. There is more elaboration of the issues involved, making the latest draft five times longer, and more frequent citations of court decisions.
The guidelines suggest that courts have found that if a test has a disparate racial impact but is educationally justified, challengers may still establish that there are alternative procedures that could achieve the same educational goals with a less disparate impact.
In higher education, the department indicated one practice that may conflict with civil rights laws is the use of "cutoff scores" on college placement tests to make admissions decisions--a practice few institutions openly acknowledge. The draft cites a Supreme Court decision in 1992 striking down the use of cutoff scores in admissions to Mississippi colleges.
The change in tone of the new guidelines appears to have eased the fears of college leaders, whom department officials have consulted extensively since May.
"I think it's a step in the right direction," said Terry Hartle, senior vice president of the American Council on Education, the largest lobby that represents colleges. "The earlier document read like a legal brief to make a case."
Conservative critics do not appear to be satisfied, largely because the revised draft retains the "disparate impact" of tests on a particular group as a possible source of legal vulnerability.
That legal standard rankles conservatives who believe that discrimination must be intentional to be held unlawful.
"The burden is being put on educators to justify tests that happen to have a disparate impact on some racial or ethnic group," said Roger Clegg, general counsel of the Center for Equal Opportunity.
Cantu said the draft guidelines are being proposed because the department has fielded more legal questions and complaints as standardized testing has taken on more importance. The guidelines cite federal regulations under the Civil Rights Act of 1964 and three federal court decisions involving disparate impact in education.