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California and the West

Court Upholds State's Test for Would-Be Teachers

July 14, 1999|RICHARD LEE COLVIN | TIMES EDUCATION WRITER

The state can continue to require potential teachers to pass a test of reading, writing and low-level mathematics even though minorities are far more likely to fail, a federal appeals court has ruled.

Eight unsuccessful test takers and three groups representing minority educators had challenged the legality of the California Basic Educational Skills Test, saying that it was discriminatory and poorly designed.

The state's right to use the test was upheld in 1996, but the plaintiffs had appealed the case to the U.S. 9th Circuit Court of Appeals. They had sought damage awards for more than 60,000 minorities who had failed the test since 1983, making it the nation's largest employment discrimination case.

This week's ruling said the test is the best available means of measuring essential job skills.

The ruling departed from the decision by a San Francisco federal court judge, however, in saying that the test should be treated as a licensing exam, rather than an employment test--meaning federal civil rights protections do not apply.

Moreover, the ruling said that the state agency that administers the exam, the California Commission on Teacher Credentialing, is not subject to federal employment discrimination protections because it does not receive federal funds directly.

According to the ruling, the state does not employ teachers, local school districts do. Therefore, the state cannot be liable for violations of the federal civil rights statute that school districts commit in the course of making hiring decisions.

State Secretary of Education Gary Hart, who as a state senator wrote the legislation creating the test, said Monday's ruling supports the state's efforts to raise academic standards for the public schools.

"It would be a bizarre twist of fate if our very modest standards for entering the teaching profession in terms of CBEST were somehow thrown out when we're trying to get students to world-class standards," Hart said.

But John T. Affeldt, an attorney for the plaintiffs, said the ruling was based on a contorted analysis that treated the state teacher commission as if it were an independent entity and not part of the state's school system. He said the court erred in saying that the state could not be held liable for discrimination that occurred as a result of its own regulations, even if the state does not directly hire and fire teachers.

He also criticized the ruling's conclusion that the test is a licensing exam.

"It means we're going to continue to see a predominantly white teaching force in California and that qualified teachers of color will be disproportionately hindered from applying," Affeldt said of the ruling.

About 41% of California's students are nonwhite; 77% of the teaching force is white.

Statistics presented in the course of the litigation said that about 80% of white test takers pass the first time, compared with 38% for African Americans, 49% for Mexican Americans and 60% for Asian Americans.

Affeldt said his clients have not decided whether to appeal the ruling.

But T. Lawrence Ashe, the private attorney who represented the state in the case, said he was confident that the ruling would withstand an appeal. He said the state would have to show only that the test bears a reasonable relationship to its goal of ensuring that teachers possess minimal academic skills.

An expert analysis of the difficulty of the test submitted by the state said the reading and writing portions of the test were at a college level. But Ashe cited parts of the math test to show that it was no more difficult than what an eighth- to 10th-grader would be expected to master.

The question missed most frequently on the math part of the test asked how many students could be served a half pint of milk from a five-gallon container. If one knows that a gallon contains 16 half pints, it's only a matter of multiplying to find the correct answer of 80.

The state has spent well in excess of $1 million to defend the test since 1992 when the suit was filed.

"The real winners in this case are the children who attend public school in California because they won't be exposed to teachers who can't pass a ninth- or 10th-grade test in reading, writing and arithmetic," Ashe said.

The ruling in the case was written by Los Angeles District Judge Stephen V. Wilson, who was serving on the Appeals Court, and joined by Judge Andrew Kleinfeld.

Judge Robert Boochever dissented in the case, saying that the ruling exempts the state's public schools' hiring practices from civil rights laws, "however invidious, discriminatory or harmful those requirements may be." He also argued that the state could reasonably be considered the employer of teachers.

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