It's well known that Supreme Court nominee Sonia Sotomayor will be questioned about her ruling in Ricci vs. DeStafano whereby she upheld New Haven, Connecticut's decision to invalidate the results of a firefighter promotion test because no African-Americans qualified for advancement. (That case is now under Supreme Court review, and most analysts expect it to be overturned.) As the Washington Post reported:
The promotion results produced a heated debate in the city, and government lawyers warned the independent civil service board that if it certified the test results, minority firefighters might have a good case for claiming discrimination under Title VII of the Civil Rights Act of 1964. Federal guidelines presume discrimination when a test has such a disparate impact on minorities.
In a short statement dismissing the case, Sotomayor in effect agreed with the government lawyers that the city had reason to worry about such a discrimination suit if they used the test as intended.
With that in mind, consider this article from Boston from a few weeks ago, "Ex-teachers sue over licensing exam: Say test is biased against minorities." (Thanks to Whitney Tilson for highlighting it in his daily email today.) Take a look at the opening paragraphs:
After more than a decade of controversy about the fairness of the state's teacher licensing exam, three former Boston schoolteachers--who are black or Latino and lost their jobs because they repeatedly failed the exam--filed a class-action lawsuit in federal court yesterday arguing the test is biased against minorities.The suit is based on the fact that test-takers who are minorities or nonnative English speakers fail the communication and literacy portion of the exam at higher rates than whites who are native English speakers.
Fifty-two percent of Latino applicants and 54 percent of black applicants flunked the writing portion of the exam--nearly twice the rate as whites--in the 2005-2006 school year, according to the most recent data the state has released publicly. The failure rate for native Spanish speakers was above 60 percent.
My understanding is that tests such as the one in Massachusetts can survive judicial review if they can be shown to assess something that matters in terms of job performance. With the strong research consensus around the importance of teachers' subject matter knowledge and general intelligence, that shouldn't be too hard to do.
Still, as the Globe article points out, there have also been research findings that minority students learn marginally more from teachers of their same race--all other things being equal. Though I would argue that that's something for policymakers to weigh, not the courts. (And "all else" is not usually equal, unfortunately. As long as we have an achievement gap in this country, minority teacher candidates are, on average, likely to have lower test scores than their white counterparts.)
But would Sotomayor agree? Or would she say that anytime an employment-related test has a "disparate impact" on minorities, it has to be thrown out? If so, say goodbye to teacher testing.
