This document is an archival file

retained for historical purposes.
The Use of Tests

as Part of High-Stakes

Decision-Making

for Students:

A Resource Guide for

Educators and Policy-Makers

U.S. Department of Education

Office for Civil Rights

The Use of Tests

as Part of High-Stakes

Decision-Making

for Students:
The Use of Tests as

Part of High-Stakes

Decision-Making

for Students:

A Resource Guide for

Educators and Policy-Makers

U.S. Department of Education

Office for Civil Rights
Richard W. Riley

Secretary

U.S. Department of Education

Norma V. Cantú

Assistant Secretary

Office for Civil Rights

U.S. Department of Education

December 2000

Permission to reprint this publication is not necessary. However, if the resource guide is

reprinted, please cite it as the source and retain the credits to the original authors or

originators of any of the documents contained in the Appendices. For questions about

reprinting material in the Appendices, contact the author or originator of the document.

The full text of the resource guide is available at the U.S. Department of Education’s Office

for Civil Rights’ (OCR’s) web page, www.ed.gov/offices/OCR. Individuals with disabilities

may obtain this document in an alternate format (such as Braille, large print, audiotape, or

computer diskette) on request. For more information, please contact OCR by telephone

at 800-421-3481 or by e-mail at OCR@ed.gov. Individuals who use a telecommunications

device for the deaf (TDD) may call OCR’s TDD number at 877-521-2172.

This resource guide has been developed by OCR in an effort to assemble the best

information regarding test measurement standards, legal principles, and resources to help

educators and policy-makers ensure that uses of tests as a part of decision-making that has

high-stakes consequences for students are educationally sound and legally appropriate.

The resource guide is intended to reflect existing test measurement and legal principles.

The resource guide is not intended to and does not add to, or subtract from, any otherwise

applicable federal requirements. This publication supersedes any earlier drafts, notes, or

other preparatory versions of this document.
UNITED STATES DEPARTMENT OF EDUCATION

OFFICE FOR CIVIL RIGHTS

December 2000

Dear Colleague:

Adherence to good test use practices in education is a shared goal of government officials,

policy-makers, educators, parents, and students. In an era of school reforms that place

increasing emphasis on measures of accountability, such as the use of tests as part of

decision-making that has high-stakes consequences for students, * the need to provide

practical information about good testing practices is well documented. In January 1999,

the National Research Council (NRC) observed that we, in the education community,

should work to better disseminate information related to good testing practices with a

focus on the standards of testing professionals and the relevant legal principles that, together,

“reflect many common concerns.”

Sound educational policies and federal nondiscrimination laws can work together to

promote educational excellence for all students and ensure that educational practices do

not — intentionally or otherwise — unfairly deny educational opportunities to students

based upon their race, national origin, sex, or disability. In short, federal civil rights laws

affirm good test use practices. Thus, an understanding of the measurement principles

related to the use of tests for high-stakes purposes is an essential foundation to better

understanding the federal legal standards that are significantly informed by those

measurement principles.

In order to further the goal of accurate and fair judgments in high-stakes decision-making

that involves the use of tests, we are pleased to provide you with this copy of The Use of

Tests as Part of High-Stakes Decision-Making for Students: A Resource Guide for Educators

and Policy-Makers. This guide provides important information about the professional

standards relating to the use of tests for high-stakes purposes, the relevant federal laws that

apply to such practices, and references that can help shape educationally sound and

legally appropriate practices.

*

 As explained throughout the guide, the primary focus is the use of standardized tests or assessments (referred to in

the guide as tests) used to make decisions with important consequences for individual students. Examples of highstakes decisions include: student placement in gifted and talented programs or in programs serving students with

limited English proficiency; determinations of disability and eligibility to receive special education services; student

promotion from one grade level to another; graduation from high school and diploma awards; and admission

decisions and scholarship awards. The guide does not address teacher-created tests that are used for individual

classroom purposes.

THE ASSISTANT SECRETARY
There are few simple or definitive answers to questions about the use of tests for highstakes purposes. Tests are a means to an end and, as such, can be understood only in the

context in which they are used. The education context — in which the relationship (and

attendant obligations) of the educator to the student is frequently more complex than that

between employer and employee — shows time and again that any decision regarding

the legality of a use of a test for high-stakes purposes under federal nondiscrimination

laws cannot be made without regard to the educational interests and judgments upon

which the test use is premised.

Background

Throughout the 1990s, national, state, and local education leaders focused on raising

education standards and establishing strategies to promote accountability in education.

In fact, the promotion of challenging learning standards for all students — coupled with

assessment systems that monitor progress and hold schools accountable — has been the

centerpiece of the education policy agenda of the federal government as well as many

states.

At the same time, the use of tests as part of high-stakes decision-making for students is on

the rise. For example, the number of states using tests as a condition for high school

graduation is increasing, with a majority of states projected to use tests as conditions for

graduation by 2003 and several states now using tests as conditions for grade promotion.

Recently, more and more educators and policy-makers have requested advice and technical

assistance from the U.S. Department of Education regarding test use in the context of

standard-based reforms. The Department’s Office for Civil Rights (OCR) is also addressing

testing issues in a more extensive array of complaints of discrimination being filed with

our office, most of them in a K-12 setting with implications for high-standards learning.

OCR has responsibility for enforcing Title VI of the Civil Rights Act of 1964, Title IX of the

Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, and Title

II of the Americans with Disabilities Act of 1990. These statutes prohibit discrimination

on the basis of race, color, national origin, sex, and disability by educational institutions

that receive federal funds.

In a similar vein, institutions in the post-secondary community in recent years have engaged

in a thoughtful dialogue and analysis regarding merit in admissions and the appropriate

use of tests as part of the process for making high-stakes admissions decisions. In some

states, the use of tests in connection with admissions decisions has been an important

element in public post-secondary education reform.

These trends highlight the salience of two recent conclusions of the NRC’s Board on

Testing and Assessment. The NRC observed that many policy-makers and educators are

unaware of the test measurement standards that should inform testing policies and practices.

These standards include the Standards for Educational and Psychological Testing (Joint

iii
Standards), prepared by a joint committee of the American Psychological Association

(APA), the American Educational Research Association (AERA), and the National Council

on Measurement in Education (NCME). The NRC also concluded that it “is essential that

educators and policy-makers alike be aware of both the letter of the laws and their

implications for test takers and test users.” [National Research Council, High Stakes: Testing

for Tracking, Promotion and Graduation, p.68 (Heubert and Hauser, eds., 1999).]

The Resource Guide

Toward this end, OCR has prepared this guide in an effort to assemble the best information

regarding test measurement standards, legal principles, and resources to help educators

and policy-makers frame strategies and programs that promote learning to high standards

in ways consistent with federal nondiscrimination laws. Our goal is to inform decisions

related to the use of tests as part of decision-making that has high-stakes consequences

for students, such as when they move from grade to grade or graduate from high school.

Just as we know that good test use practices can advance high standards for learning and

equal opportunity, we know that educationally inappropriate uses of tests do not. If we

want this generation of test-taking students (and their teachers and schools) to meet high

standards, then we should insist that the tests they take meet high standards. When tests

are used in ways that profoundly shape the lives of students, they must also be used in

ways that accurately reflect educational standards and that do not deny opportunities or

benefits to students based on their race, national origin (including limited English

proficiency), sex, or disability.

The guide is organized to provide practical guidance related to the test measurement

principles and applicable federal laws that guide the use of tests as part of decisionmaking that has high-stakes consequences for students. The Introduction to the guide

provides a broad, conceptual overview of relevant principles so that those who are not

familiar with test measurement principles or applicable federal laws can better understand

the kinds of issues that relate to the use of tests in many contexts. Chapter One of the

guide provides a detailed discussion of the test measurement principles that provide a

foundation for making well-informed decisions related to the use of tests for high-stakes

purposes. The Joint Standards, which has been approved by the APA, AERA, and NCME,

is discussed in detail in this chapter. Adherence to relevant professional standards can

help reduce the risk of legal liability when schools are using assessments for high-stakes

purposes. Chapter Two provides an overview of the existing legal principles that have

guided federal courts and OCR when analyzing claims of race, national origin, sex, and

disability discrimination related to the use of tests for high-stakes purposes. These principles,

as applied by the courts and OCR, underscore the importance of adhering to educationally

sound testing practices. The Appendix includes a Glossary of Legal Terms, a Glossary of

Test Measurement Terms, a list of Accommodations Used by States, a Compendium of

Federal Statutes and Regulations, and a Resources and References section.

iv
Central Principles

There are several central principles reflected in the text of this guide.

First, the goals of promoting high educational standards and ensuring nondiscrimination

are complementary objectives. The ultimate question regarding the use of tests for highstakes purposes, as a matter of federal nondiscrimination law and sound educational

policy, centers on educational sufficiency: Is the test appropriate for the purposes used?

That is, are the inferences derived from test scores, and the high-stakes decisions based

on those inferences, valid, reliable, and fair for all students? In applying civil rights laws to

education cases, federal courts recognize the importance of providing appropriate deference

to the educational judgments of educators and policy-makers. These inquiries are not an

effort to lower academic standards or alter core education objectives integral to academic

admissions or other educational decisions. Rather, these inquires focus the educator and

policy-maker on ensuring that uses of tests with high-stakes consequences for students are

educationally sound and legally appropriate.

Second, when tests, including large-scale standardized tests, are used in valid, reliable,

and educationally appropriate ways, their use is not inconsistent with federal

nondiscrimination laws. Importantly, tests can help indicate inequalities in the kinds of

educational opportunities students are receiving, and, in turn, may stimulate efforts to

ensure that all students have equal opportunity to achieve high standards. When tests

accurately indicate performance gaps, it is important to focus on the quality of educational

opportunities afforded to under-performing students. The key question in the context of

standards-based reforms and the use of tests as measures of student accountability is:

Have all students been provided quality instruction, sufficient resources, and the kind of

learning environment that would foster success?

Third, a test score disparity among groups of students does not alone constitute

discrimination under federal law. The guarantee under federal law is for equal opportunity,

not equal results. Test results indicating that groups of students perform differently should

be a cause for further inquiry and examination, with a focus upon the relevant educational

programs and testing practices at issue. The legal nondiscrimination standard regarding

neutral practices (referred to by the courts as the “disparate impact” standard) provides

that if the education decisions based upon test scores reflect significant disparities based

on race, national origin, sex, or disability in the kinds of educational benefits afforded to

students, then questions about the education practices at issue (including testing practices)

should be thoroughly examined to ensure that they are in fact nondiscriminatory and

educationally sound.

v
In short, the goal of the federal legal standards is to help promote accurate and fair decisions

that have real consequences for students, not to water down academic standards or deter

educators from establishing and applying sensible and rigorous standards. In fact, properly

understood, the legal standards are an aid to meaningful education reform — by helping

to ensure that instruction and assessments are aligned and structured to promote the highlevel skills and knowledge that rigorous standards seek for all children.

Finally, while this guide focuses on the use of tests, similar principles apply to the overall

decision-making process used to make high-stakes decisions for students. In fact, the

NRC, APA, AERA, NCME, and others caution against making high-stakes decisions based

on a single test score. “Other relevant information should be taken into account if it will

enhance the overall validity of the decision.”[ Joint Standards, p.146 (1999).]

Conclusion

Recognizing the responsibility that educators and policy-makers must shoulder in making

the promise of high-standards learning a reality, U.S. Secretary of Education Richard Riley

in his commemoration of the 45th anniversary of the Brown v. Board of Education decision

said, “A quality education must be considered a key civil right for the twenty-first century.”

This is the driving force behind OCR’s continuing effort to provide assistance to policymakers and educators as we continue to enforce federal laws that prohibit discrimination

against students. Rather than creating false and polarizing “win-lose” choices on this allimportant set of issues, we need to, as Secretary Riley noted, “search for common ground”

— ground, that is, in this case, expansive.

We have worked with literally dozens of groups and individuals, including educators,

parents, teachers, business leaders, policy-makers, test publishers, individual members of

Congress, and others, to solicit input and advice regarding the scope, framing, and kinds

of resources to include in this guide, and we are grateful for their time and assistance. The

first draft of the testing guide was released in April 1999 and was the subject of substantial

comments leading to extensive revisions. The second draft was released in December

1999 and once again received substantial comments. That draft also was independently

reviewed by the NRC’s Board on Testing and Assessment, which held a hearing earlier

this year to discuss the draft guide and issued a letter report in June 2000 commenting on

the draft. We are grateful for the NRC’s tireless efforts. The third draft was released for

public comment in July 2000, this time with notice of availability in the Federal Register.

OCR has made numerous changes throughout the guide in response to comments seeking

to clarify, make more accurate, or expand key sections. It is important to keep in mind that

vi
the guide is not designed to answer all questions related to the use of tests when making

high-stakes decisions for students. However, working together with our education partners,

we believe that we are providing a useful resource that will serve the education community

as it addresses the very complex and important questions that stem from the institution of

high standards and accountability systems designed to promote the best schools in the

world.

Very truly yours,

Norma V. Cantú

vii
viii

Acknowledgements

This resource guide was developed by the U.S. Department of Education, in consultation

with numerous stakeholders. The time and commitment of all those who provided

comments and input are gratefully acknowledged. In particular, we want to recognize the

primary drafters of this document: David Berkowitz, Barbara Wolkowitz, Rebecca Fitch,

and Rebecca Kopriva (Consultant).

We also want to thank others from the U.S. Department of Education’s Office for Civil

Rights (OCR) and Office of the General Counsel who assisted in the development of the

guide, including Scott Palmer, Arthur Coleman, Jeanette Lim, Susan Bowers, Cathy Lewis,

Steve Beckner, Arthur Besner, Connie Butler, Doreen Dennis, Lilian Dorka, Marsha

Douglas, Lisa Dyson, Joan Ford, Ann Hoogstraten, Jerry Kravitz, Jennifer Mueller, Jan

Pottker, Barbra Shannon, Kimberly Stedman, Elizabeth Thornton, Rebekah Tosado, Judith

Winston, Steven Winnick, Susan Craig, Karl Lahring, Lisa Battlia Anthony, Adina Kole,

and Suzanne Sheridan. Additionally, we are grateful to the efforts of individuals, especially

within OCR, who were responsible for developing earlier drafts of the document. Finally,

we want to recognize the efforts of other persons within the U.S. Department of Education,

the U.S. Department of Justice’s Civil Rights Division, and the National Academy of

Sciences’ Board on Testing and Assessment, who reviewed drafts of this document and

provided valuable guidance.
ix
INTRODUCTION: An Overview of the Resource Guide ......... 1

CHAPTER 1: Test Measurement Principles.........................21

CHAPTER 2: Legal Principles ..........................................49

APPENDIX A: Glossary of Legal Terms...............................69

APPENDIX B: Glossary of Test Measurement Terms .............73

APPENDIX C: Accommodations Used by States ..................81

APPENDIX D: Compendium of Federal Statutes and

Regulations................................................85

APPENDIX E: Resources and References ........................ 89

x

Contents
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 1

INTRODUCTION: An Overview of the

Resource Guide

I. Introduction

When decisions are made affecting

students’ educational opportunities

and benefits, it is important that they

be made accurately and fairly. When

tests are used in making educational

decisions for individual students, it is

important that they accurately

measure students’ abilities,

knowledge, skills, or needs, and that

they do so in ways that do not

discriminate in violation of federal law

on the basis of students’ race, national

origin, sex, or disability. The U.S.

Department of Education’s Office for

Civil Rights (OCR)1 has developed

this resource guide in order to provide

educators and policy-makers with a

useful, practical tool to assist in their

development and implementation of policies that involve the use of tests as part of

decision-making that has high-stakes consequences for students.

Chapter One of this guide provides information about professionally recognized test

measurement principles. Chapter Two provides the legal frameworks that have guided

federal courts and OCR when addressing the use of tests that have high-stakes

consequences for students. This document does not establish any new legal or test

measurement principles. Furthermore, the test measurement principles described in

Chapter One are not legal principles. However, the use of tests in educationally appropriate

ways — consistent with the principles described in Chapter One — can help minimize the

risk of noncompliance with the federal nondiscrimination laws discussed in Chapter Two.

1

 OCR enforces laws that prohibit discrimination on the basis of race, national origin, sex, disability, and age by

educational institutions that receive federal funds. The laws enforced by OCR are: 1) Title VI of the Civil Rights Act

of 1964, 42 U.S.C. §§ 2000d et seq. (2000) (Title VI), which prohibits discrimination on the basis of race, color, or

national origin; 2) Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq. (1999) (Title IX), which

prohibits discrimination on the basis of sex; 3) Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 794 et

seq. (1999) (Section 504), which prohibits discrimination on the basis of disability; 4) the Age Discrimination Act of

1975, 42 U.S.C. §§ 6101 et seq. (1995 & Supp. 1999) (as amended), which prohibits age discrimination; and 5)

Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12134 et seq. (1995 & Supp. 1999) (Title II),

which prohibits discrimination on the basis of disability by public entities, whether or not they receive federal

financial assistance.

When tests are used in ways that meet

relevant psychometric, legal, and educational

standards, students’ scores provide

important information that, combined with

information from other sources, can lead to

decisions that promote student learning and

equality of opportunity. ... When test use is

inappropriate, especially in making highstakes decisions about individuals, it can

undermine the quality of education and

equality of opportunity. ... This lends special

urgency to the requirement that test use with

high-stakes consequences for individual

students be appropriate and fair.

National Research Council, High Stakes: Testing

for Tracking, Promotion, and Graduation, p. 4 (Jay

P. Heubert & Robert M. Hauser eds., 1999).
The Use of Tests as Part of High-Stakes Decision-Making for Students:

2 A Resource Guide For Educators and Policy-Makers

The guide also includes a collection of resources related to the test measurement and

nondiscrimination principles discussed in the guide — all in an effort to help policy-makers

and educators ensure that decisions that have high-stakes consequences for students are

made accurately and fairly.

Recently, education stakeholders at all levels have approached OCR requesting advice

and technical assistance in a variety of test-use contexts, particularly as states and districts

use tests as part of their standards-based reforms. Also, OCR is increasingly addressing

testing issues in a broader and more extensive array of complaints of discrimination that

have been filed. These developments confirm the need to provide a useful resource that

captures legal and test measurement principles and resources to assist educators and policymakers.

As used in this resource guide, “highstakes decisions” refer to decisions

with important consequences for

individual students. Education

entities, including state agencies, local

education agencies, and individual

education institutions, make a variety

of decisions affecting individual students during the course of their academic careers,

beginning in elementary school and extending through the post-secondary school years.

Examples of high-stakes decisions affecting students include: student placement in gifted

and talented programs or in programs serving students with limited-English proficiency;

determinations of disability and eligibility to receive special education services; student

promotion from one grade level to another; graduation from high school and diploma

awards; and admissions decisions and scholarship awards.2

This guide is intended to apply to standardized tests that are used as part of decisionmaking that has high-stakes consequences for individual students and that are addressed

in the Standards for Educational and Psychological Testing (Joint Standards, 1999).3

The Joint Standards, viewed as the primary technical authority on educational test

measurement issues, was prepared by a joint committee of the American Educational

Research Association, the American Psychological Association, and the National Council

on Measurement in Education – the three leading organizations in the area of educational

test measurement. The Joint Standards was developed and revised by these three

organizations through a process that involved the participation of hundreds of testing

2

 The purpose of this guide is to address tests that are used in making high-stakes decisions for individual students.

In addition to using tests for high-stakes purposes for individual students, states and school districts are also using

tests to hold schools and districts accountable for student performance. Although the use of tests for this purpose is

not the focus of the guide, we have provided some useful background information about relevant principles and

federal statutory requirements.

3

 American Educational Research Association, American Psychological Association & National Council on

Measurement in Education, Standards for Educational and Psychological Testing (1999) (hereinafter Joint

Standards).

High-stakes decisions in this guide refer to

decisions with important consequences for

individual students, such as placement in

special programs, promotion, graduation, and

admissions decisions.
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 3

professionals and thousands of pages of written comments from both professionals and

the public. The current edition of the Joint Standards reflects the experience gained from

many years of wide use of previous versions of the Joint Standards in the testing community.

The Joint Standards, which is discussed in more detail below, applies to standardized

measures generally recognized as tests, and also may be applied usefully to a broad range

of systemwide standardized assessment procedures.4 For the sake of simplicity, this guide

will refer to tests, regardless of the type of label that might otherwise be applied to them.

The guide does not address teacher-created tests that are used for individual classroom

purposes.

States and school districts are also

using assessment systems for the

purpose of promoting school and

district accountability.5 For example,

under Title I of the Elementary and

Secondary Education Act, states are

required to develop content

standards, performance standards,

and assessment systems that

measure the progress that schools

and districts are making in educating

students to the standards established

by the state. The Title I statute

explicitly requires that assessments

be valid and reliable for their

intended purpose and be consistent with relevant, nationally recognized technical and

professional standards.6 If educators and policy-makers consider using the same test for

school or district accountability purposes and for individual student high-stakes purposes,

they need to ensure that the test score inferences are valid and reliable for each particular

use for which the test is being considered.7

4

 The Joint Standards notes that its applicability to an evaluation device or method is not altered by the label used

(e.g., test, assessment scale, inventory). A more complete discussion about the instruments covered by the Joint

Standards can be found in the introduction section of that document. Joint Standards, supra note 3, at pp. 3-4.

5

 The Goals 2000: Educate America Act supports state efforts to develop clear and rigorous standards for what every

child should know and be able to do, and supports comprehensive state and districtwide planning and

implementation of school improvement efforts focused on improving student achievement to those standards. See

20 U.S.C. §§ 5801 et seq. (1994). Largely through state awards that are distributed on a competitive basis to local

school districts, Goals 2000 promotes education reform in every state and thousands of districts and schools.

6

 20 U.S.C. § 6311(b)(3)(C).

7

 For example, if an assessment yields low scores because there is a major gap between the skills and knowledge being

assessed and what is being taught, this does not undermine the validity of the assessment for purposes of program

evaluation and accountability – indeed the purpose of the assessment may be to detect such gaps. In contrast, the

existence of such a gap may raise serious concerns about the appropriateness of the use of the assessment for promotion

and graduation decisions where students are being held accountable for what they purportedly have been taught.

Is it ever appropriate to test [elementary or

secondary] students on material they have not

been taught? Yes, if the test is used to find out

whether the schools are doing their job. But if

that same test is used to hold students

“accountable” for the failure of the schools,

most testing professionals would find such use

inappropriate. It is not the test itself that is

the culprit in the latter case; results from a test

that is valid for one purpose can be used

improperly for other purposes.

National Research Council, High Stakes: Testing

for Tracking, Promotion and Graduation, p. 21 (Jay

P. Heubert & Robert M. Hauser eds., 1999).
The Use of Tests as Part of High-Stakes Decision-Making for Students:

4 A Resource Guide For Educators and Policy-Makers

While this guide focuses on the use of tests, similar principles apply to the overall process

used to make high-stakes decisions for students. Indeed, the Joint Standards states that,

in educational settings, a high-stakes decision “should not be made on the basis of a

single test score. Other relevant information should be taken into account if it will enhance

the overall validity of the decision.”8 As explained in the Joint Standards, “When

interpreting and using scores about individuals or groups of students, considerations of

relevant collateral information can enhance the validity of the interpretation, by providing

corroborating evidence or evidence that helps explain student performance.”9 The Joint

Standards also notes that “as the stakes of testing increase for individual students, the

importance of considering additional evidence to document the validity of score

interpretations and the fairness in testing increases accordingly. The validity of individual

interpretations can be enhanced by taking into account other relevant information about

individual students before making important decisions. It is important to consider the

soundness and relevance of any collateral information or evidence used in conjunction

with test scores for making educational decisions.”10 Used appropriately, tests can provide

important information about a student’s knowledge to help improve educational

opportunity and achievement. However, as said by the National Research Council’s

(NRC’s) Board on Testing and Assessment, “no single test score can be considered a

definitive measure of a student’s knowledge.”11

Policy-makers and the education community need to ensure that the operation of the entire

high-stakes decision-making process does not result in the discriminatory denial of educational

opportunities or benefits to students.12 Educators should carefully monitor inputs into the highstakes decision-making process and outcomes over time so that potential discrimination arising

from the use of any of the criteria can be identified and eliminated.

8

 Standard 13.7 states, “In educational settings, a decision or characterization that will have major impact on a

student should not be made on the basis of a single test score. Other relevant information should be taken into

account if it will enhance the overall validity of the decision.” Joint Standards, supra note 3, at p. 146.

9 Joint Standards, supra note 3, at p. 141.

10 Joint Standards, supra note 3, at p. 141. Many test developers also caution against using their tests as the sole

criterion in making a decision with high-stakes consequences for students. Discussion of this issue can be found in

interpretive guides from test publishers, such as Riverside Publishing, Harcourt Brace, CTB McGraw Hill, and the

Educational Testing Service, regarding the use of tests.

11 National Research Council, High Stakes: Testing for Tracking, Promotion, and Graduation, p. 3 (Jay P. Heubert &

Robert M. Hauser eds., 1999) (hereinafter High Stakes).

12 See regulations implementing Title VI of the Civil Rights Act of 1964, 34 C.F.R. §§ 100.3(a), 100.3(b)(1)(i) and

(vi), 100.3(b)(2); regulations implementing Section 504 of the Rehabilitation Act of 1973, 34 C.F.R. §§ 104.4(a),

104.4(b)(1)(i) and (iv), 104.4(b)(4); regulations implementing Title IX of the Education Amendments of 1972, 34

C.F.R. §§ 106.31(a), 106.31(b).
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 5

Finally, this guide focuses primarily

on tests used in making high-stakes

decisions at the elementary and

secondary education level.

However, it is important to recognize

that the general principles of sound

educational measurement apply

equally to tests used at the postsecondary education level, including

admissions and other types of tests.13

For example, post-secondary

admissions policies and practices

should be derived from and clearly

linked to an institution’s overarching

educational goals, and the use of tests

in the admissions process should

serve those institutional goals.14

II. Foundations of the Resource Guide

A. Professional Standards of Sound Testing Practices

Chapter One summarizes the

leading professionally

recognized standards of sound

testing practices within the

educational measurement

field. They include those

described in the Joint

Standards, which represents

the primary statement of

professional consensus

regarding educational testing.

Other leading professionally

recognized standards of sound

testing practices within the educational measurement field include the Code of Fair Testing

Practices in Education (1988) and the Code of Professional Responsibilities in Educational

Measurement (1995). The guide also cites recent reports from the NRC's Board on Testing

13 For additional information regarding testing at the post-secondary level, see, e.g., Joint Standards, supra note 3,

at pp. 142-143; National Research Council, Myths and Tradeoffs: The Role of Tests in Undergraduate Admissions

(Alexandra Beatty, M.R.C. Greenwood & Robert L. Linn eds., 1999) (hereinafter Myths and Tradeoffs); Educational

Measurement (Robert L. Linn ed., 3rd ed. 1989); Ability Testing: Uses, Consequences, and Controversies, Chapter

5 (Alexandra K. Wigdor & Wendell R. Garner eds., 1982).

14 Myths and Tradeoffs, supra note 13, at p. 1.

The proper use of tests can result in wiser decisions

about individuals and programs than would be the

case without their use and also can provide a route to

broader and more equitable access to education. ...

The improper use of tests, however, can cause

considerable harm to test takers and other parties

affected by test-based decisions.

American Educational Research Association, American

Psychological Association & National Council on

Measurement in Education, Standards of Educational and

Psychological Testing, Introduction, p. 1 (1999).

Standardized tests ... offer important benefits

that should not be overlooked. ... Both the

SAT [I] and ACT cover relatively broad

domains that most observers would likely

agree are relevant to the ability to do college

work. Neither, however, measures the full

range of abilities that are needed to succeed

in college; important attributes not measured

include, for example, persistence, intellectual

curiosity, and writing ability. Moreover, these

tests are neither complete nor precise

measures of ‘merit’—even academic merit.

National Research Council, Myths and Tradeoffs: The

Role of Tests in Undergraduate Admissions, pp. 21-

22 (Alexandra Beatty, M.R.C. Greenwood & Robert

L. Linn eds., 1999).
The Use of Tests as Part of High-Stakes Decision-Making for Students:

6 A Resource Guide For Educators and Policy-Makers

and Assessment, including: High Stakes: Testing for Tracking, Promotion and Graduation

(High Stakes, 1999); Myths and Tradeoffs: The Role of Tests in Undergraduate Admissions

(Myths and Tradeoffs, 1999);Testing, Teaching, and Learning: A Guide for States and School

Districts (Testing, Teaching, and Learning, 1999); Improving Schooling for Language-Minority

Children: A Research Agenda (Improving Schooling for Language-Minority Children, 1997);

and Educating One & All: Students with Disabilities and Standards-Based Reform (Educating

One & All, 1997).15 These reports help explain or elaborate on principles that are stated in the

Joint Standards.

Designed to provide criteria for the evaluation of tests, testing practices, and the effects of

test use, the Joint Standards recommends that all professional test developers, sponsors,

publishers, and users make efforts to observe the Joint Standards and encourage others

to do so.16 The Joint Standards includes chapters on the test development process (with

a focus primarily on the responsibilities of test developers), the specific uses and applications

of tests (with a focus primarily on the responsibilities of test users), and the rights and

responsibilities of test takers. Because the Joint Standards is the most widely accepted

collection of professional standards that is relied upon in developing testing instruments,

this guide includes a discussion of specific standards that are contained within the Joint

Standards, where relevant. Numbered standards that are referenced throughout this guide

refer to specific standards contained within the Joint Standards.

To ensure that information presented in this guide is readable and accessible to educators

and policy-makers, we have paraphrased language from relevant standards. Our goal in

paraphrasing is to be concise and accurate. Where we have paraphrased in the text, we

have also provided the full text of the relevant standards in the footnotes. Because the

Joint Standards provides additional relevant discussion, we always encourage readers

also to review the full document.

Professional test measurement standards provide important information that is relevant to

making determinations about appropriate test use. The Joint Standards provides a frame

of reference to assist in the evaluation of tests, testing practices, and the effects of test use.

The Joint Standards cautions that the acceptability of a test or test application does not

rest on the literal satisfaction of every standard in the Joint Standards and cannot be

determined by using a checklist.17 The exercise of professional judgment is a critical element

in the interpretation and application of the standards, and the interpretation of individual

15 The National Resource Council of the National Academy of Sciences, which is an independent, private, nonprofit

entity, established the NRC’s Board on Testing and Assessment in 1993 to help policy-makers evaluate the use of

tests, alternative assessments, and other indicators commonly used as tools of public policy. The Board provides

guidance for judging the quality of testing or assessment technologies and the intended and unintended consequences

of particular uses of these technologies. The Board concentrates on topics and conducts activities that serve the

general public interest.

16 Joint Standards, supra note 3, at Introduction, p. 2.

17 Joint Standards, supra note 3, at Introduction, p. 4.
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 7

standards should be considered in the overall context of the use of the test in question.18

Finally, while the Joint Standards and federal nondiscrimination laws are closely aligned

and mutually reinforcing, the failure to meet a particular professional test measurement

standard does not necessarily constitute a lack of compliance with federal civil rights laws.

Conversely, compliance with professional test measurement standards does not necessarily

constitute compliance with all applicable federal civil rights laws.

B. Legal Principles

Chapter Two of the guide discusses the federal constitutional, statutory, and regulatory

nondiscrimination principles that apply to the use of tests for high-stakes purposes. This

guide is intended to reflect existing legal principles and does not establish new federal

legal requirements. The primary legal focus of the resource guide is an explanation of

principles that are clearly embedded in four nondiscrimination laws that have been enacted

by Congress: Title VI of the Civil Rights Act of 1964 (Title VI), Title IX of the Education

Amendments of 1972 (Title IX), Section 504 of the Rehabilitation Act of 1973 (Section

504), and Title II of the Americans with Disabilities Act of 1990 (Title II).19 Within the U.S.

Department of Education, the Office for Civil Rights has responsibility for enforcing the

requirements of these four statutes and their implementing regulations. The due process

and equal protection requirements of the Fifth and Fourteenth Amendments to the U.S.

Constitution have also been applied by courts to issues regarding the use of tests in making

high-stakes educational decisions. Although the Office for Civil Rights does not enforce

federal constitutional provisions, a brief overview of these fundamental constitutional

principles has been included to provide educators with a more complete picture of relevant

legal standards.

III. Basic Principles

The brief overview of the test measurement and legal principles that follows establishes

the framework for more detailed discussions of test quality in Chapter One and federal

legal standards in Chapter Two.

18 Joint Standards, supra note 3, at Introduction, p. 4.

19 Title VI prohibits discrimination on the basis of race, color, and national origin by recipients of federal financial

assistance. The U.S. Department of Education’s regulation implementing Title VI is found at 34 C.F.R. Part 100. Title

IX prohibits discrimination on the basis of sex by recipients of federal financial assistance. The U.S. Department of

Education’s regulation implementing Title IX is found at 34 C.F.R. Part 106. Section 504 prohibits discrimination on

the basis of disability by recipients of federal financial assistance. The U.S. Department of Education’s regulation

implementing Section 504 is found at 34 C.F.R. Part 104. Title II prohibits discrimination on the basis of disability

by public entities, regardless of whether they receive federal funding. The U.S. Department of Justice’s regulation

implementing Title II is found at 28 C.F.R. Part 35.
The Use of Tests as Part of High-Stakes Decision-Making for Students:

8 A Resource Guide For Educators and Policy-Makers

A. Test Use Principles

1. Educational Objectives and Context

Tests that are used in educationally

appropriate ways and that are valid for the

purposes used can serve as important

instruments to help educators do their job.

Before any state, school district, or

educational institution administers a test,

the objectives for using the test should be

clear: What are the intended goals for and

uses of the test in question? As an

educational matter, the answer to this

question will guide all other relevant

inquiries about whether the test use is

educationally appropriate. The context in which a test is to be administered, the population

of test takers, the intended purpose for which the test will be used, and the consequences

of such use are important considerations in determining whether the test would be

appropriate for a specific type of decision, including placement, promotion, or graduation

decisions.

Once education agencies or institutions have determined the underlying goals they want

to accomplish, they need to identify the types of information that will best inform their

decision-making. Information may include test results and other relevant measures that

will be able to accurately and fairly address the purpose specified by the agencies or

institutions.20 When test results are used as part of high-stakes decision-making about

student promotion or graduation, students should be given a reasonable number of

opportunities to demonstrate mastery,21 and students should have had an adequate

opportunity to learn the material being tested.22

20 See Standard 13.7 (n.8) in Joint Standards, supra note 3, at p. 146.

21 Standard 13.6 states, “Students who must demonstrate mastery of certain skills or knowledge before being

promoted or granted a diploma should have a reasonable number of opportunities to succeed on equivalent forms

of the test or be provided with construct-equivalent testing alternatives of equal difficulty to demonstrate the skills or

knowledge. In most circumstances, when students are provided with multiple opportunities to demonstrate mastery,

the time interval between the opportunities should allow for students to have the opportunity to obtain the relevant

instructional experiences.” Joint Standards, supra note 3, at p. 146.

22 Standard 13.5 states, “When test results substantially contribute to making decisions about student promotion or

graduation, there should be evidence that the test adequately covers only the specific or generalized content and

skills that students have had an opportunity to learn.” Joint Standards, supra note 3, at p. 146.

Decisions about tracking, promotion, and

graduation differ from one another in

important ways. They differ most

importantly in the role that mastery of

past material and readiness for new

material play.

National Research Council, High Stakes:

Testing for Tracking, Promotion, and

Graduation, p. 4 (Jay P. Heubert & Robert

M. Hauser eds., 1999).
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 9

a. Placement Decisions

Placement decisions are by their very

nature used to make a decision about

the future. Tests used in placement

decisions generally determine what

kinds of programs, services, or

interventions will be most appropriate

for particular students. Decisions

concerning the appropriate educational

program for a student with a disability,

placement in gifted and talented

programs, and access to language

services are examples of placement decisions. The Joint Standards states that there should

be adequate evidence documenting the relationship among test scores, appropriate

instructional programs, and desired student outcomes.23 When evidence about the

relationship is limited, the test results should usually be considered in light of other relevant

student information.24

b. Promotion Decisions

Student promotion decisions are

generally viewed as decisions

incorporating a determination about

whether a student has mastered the

subject matter or content of instruction

provided to the student and a

determination regarding whether the

student will be able to master the

content at the next grade level (a

placement decision).25 When a test

given for promotion purposes is being

used to certify mastery, the use of the

test should adhere to professional

standards for certifying knowledge and

23 Standard 13.9 states, “When test scores are intended to be used as part of the process for making decisions for

educational placement, promotion, or implementation of prescribed educational plans, empirical evidence

documenting the relationship among particular scores, the instructional programs, and desired student outcomes

should be provided. When adequate empirical information is not available, users should be cautioned to weigh the

test results accordingly in light of other relevant information about the student.” Joint Standards, supra note 3, at

p. 147.

24 Standard 13.9 (n.23) in Joint Standards, supra note 3, at p. 147.

25 High Stakes, supra note 11, at p. 123.

Neither a test score or any other kind of

information can justify a bad decision.

Research shows that students are typically

hurt by simple retention and repetition of

a grade in school without remedial and

other instructional support services. In the

absence of effective services for lowperforming students, better tests will not

lead to better educational outcomes.

National Research Council, High-Stakes:

Testing for Tracking, Promotion, and Graduation,

p. 3 (Jay P. Heubert & Robert M. Hauser eds.,

1999).

[At the elementary and secondary

education level,] appropriate test use for

... all students requires that their scores

not lead to decisions or placements that are

educationally detrimental.

National Research Council, High Stakes:

Testing for Tracking, Promotion, and

Graduation, pp.40-41 (Jay P. Heubert &

Robert M. Hauser eds., 1999).
The Use of Tests as Part of High-Stakes Decision-Making for Students:

10 A Resource Guide For Educators and Policy-Makers

skills for all students.26 As indicated in the Joint Standards, it is important that there “be

evidence that the test adequately covers only the specific or generalized content and skills

that students have had an opportunity to learn.”27 Educational institutions should have

information indicating an alignment among the curriculum, instruction, and material

covered on such a test used for high-stakes purposes. To the extent that a test for promotion

purposes is being used as a placement device, it should also adhere, as appropriate, to

professional standards regarding tests used for placement purposes.28

c. Graduation Decisions

Graduation decisions are generally certification decisions: The diploma certifies that the

student has reached an acceptable level of mastery of knowledge and skills.29 When

large-scale standardized tests are used in making graduation decisions, as indicated in the

Joint Standards, there should “be evidence that the test adequately covers only the specific

or generalized content and skills that students have had an opportunity to learn.”30

Therefore, all students should be provided a meaningful opportunity to acquire the

knowledge and skills that are being tested, and information should indicate an alignment

among the curriculum, instruction, and material covered on the test used as a condition

for graduation.31

2. Overarching Principles

In the elementary and secondary education context, regardless of whether tests are being

used to make placement, promotion, or graduation decisions, the NRC’s Board on Testing

and Assessment has identified three principle criteria, based on established professional

26 See Standard 13.5 (n.22) and 13.6 (n.21) in Joint Standards, supra note 3, at p. 146; High Stakes, supra note

11, at p. 123.

27 Standard 13.5 (n.22) in Joint Standards, supra note 3, at p. 146; see also High Stakes, supra note 11 at pp. 124-

125.

28 See Standard 13.2 and 13.9 (n.23) in Joint Standards, supra note 3, at pp. 145, 147; see also High Stakes, supra

note 11, at p. 123.

Standard 13.2 states, “In educational settings, when a test is designed or used to serve multiple purposes, evidence

of the test’s technical quality should be provided for each purpose.” Joint Standards, supra note 3, at p. 145.

29 High Stakes, supra note 11, at p. 166.

30 Standard 13.5 (n.22) in Joint Standards, supra note 3, at p. 146.

31 Sometimes scores from a test used for graduation purposes are used to provide remediation instruction for

students who do not pass the test. In this case, “[s]chools that give graduation tests early . . . assume that such tests

are diagnostic and that students who fail can benefit from effective remedial instruction . . . Using these test results

to place a pupil in a remedial class or other intervention also involves a prediction about the student’s performance-

-that is, that as a result of the placement, the student’s mastery of the knowledge and skills measured by the test will

improve. Thus, evidence that a particular treatment (in this case, the remedial program) benefits students who fail

the test would be an appropriate part of the test validation process.” High Stakes, supra note 11, at p. 171.
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 11

standards, that can help inform and guide conclusions regarding the appropriateness of a

particular test use.32

(1) Measurement validity: Is a test valid for a particular purpose, and does it accurately

measure the test taker’s knowledge in the content area being tested?

State and local education agencies and educational institutions should ensure that a test

actually measures what it is intended to measure for all students. The inferences derived

from the test scores for a given use — for a specific purpose, in a specific type of situation,

and with specific types of students — are validated, rather than the test itself. It is important

for educators who use the test to obtain adequate evidence of test quality (including validity

and reliability evidence), evaluate the evidence, and ensure that the test is used

appropriately in a manner that is consistent with information provided by the developers

or through supplemental validation studies.

(2) Attribution of cause: Does a student’s performance on a test reflect knowledge and

skills based on appropriate instruction, or is it attributable to poor instruction or to

such factors as language barriers unrelated to the skills being tested?

In some contexts, whether a particular test use is appropriate depends on whether test

scores are an accurate reflection of a student’s knowledge or skills or whether they are

influenced by extraneous factors unrelated to the specific skills being tested. For example,

when tests are used in making student promotion or graduation decisions, state and local

education agencies should ensure that all students have an equal opportunity to acquire

the knowledge and skills that are being tested.33 In some situations, it may be necessary to

provide appropriate accommodations for limited English proficient students and students

with disabilities to accurately and effectively measure students’ knowledge and skills in

the particular content area being assessed.34

32 High Stakes, supra note 11, at p. 23 (citing National Research Council, Placing Children in Special Education: A

Strategy for Equity (1982)).

33 Standard 7.10 states, “When the use of a test results in outcomes that affect the life chances or educational

opportunities of examinees, evidence of mean test score differences between relevant subgroups of examinees

should, where feasible, be examined for subgroups for which credible research reports mean differences for similar

tests. Where mean differences are found, an investigation should be undertaken to determine that such differences

are not attributable to a source of construct underrepresentation or construct-irrelevant variance. While initially, the

responsibility of the test developer, the test user bears responsibility for uses with groups other than those specified

by the developer.” Joint Standards, supra note 3, at p. 83.

34 See Joint Standards, supra note 3, at pp. 91-106.
The Use of Tests as Part of High-Stakes Decision-Making for Students:

12 A Resource Guide For Educators and Policy-Makers

(3) Effectiveness of treatment: Do test scores lead to placements and other

consequences that are educationally beneficial?

The most basic obligation of educators at the elementary and secondary school levels is to

meet the needs of students as they find them, with their different backgrounds, and to teach

knowledge and skills to allow them to grow to maturity with meaningful expectations of a

productive life in the workforce and elsewhere.35 This obligation regarding elementary and

secondary education is no less present when educators administer tests and evaluate and act

on students’ test results than it is during classroom instruction. Recognizing that tests used in

the education setting should be integral to the learning and achievement of students, one

federal court distinguished between testing in the employment and education settings:

If tests predict that a person is going to be a poor employee, the employer

can legitimately deny the person the job, but if tests suggest that a young

child is probably going to be a poor student, a school cannot on that basis

alone deny that child the opportunity to improve and develop the academic

skills necessary to success in our society.36

Tests, in short, should be instruments used by elementary and secondary educators to

help students achieve their full potential. Test scores should lead to consequences that

are educationally beneficial for students. When making high-stakes decisions that involve

the use of tests, it is important for policy-makers and educators to consider the intended

and unintended consequences that may result from the use of the test scores.37

35 See Brown v. Board of Educ., 347 U.S. 483, 493 (1954) (stating that “[education] is required in the performance

of our most basic public responsibilities, . . . is the very foundation of good citizenship, . . . [and] is [a] principal

instrument . . . in preparing [the child] for later professional training . . . .”).

36 Larry P. v. Riles, 793 F.2d 969, 980 (9th Cir. 1984) (quoting Larry P. v. Riles, 495 F. Supp. 926, 969 (N.D. Cal.

1979)).

37 For example, research indicates that students in low-track classes often do not have the opportunity to acquire

knowledge and skills strongly associated with future success that is offered to students in other tracks. The National

Research Council recommends that neither test scores nor other information should be used to place students in

such classes. High Stakes, supra note 11, at p. 282.
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 13

38 The United States Supreme Court has held that “Title VI itself directly reached only instances of intentional

discrimination . . . [but that] actions having an unjustifiable disparate impact on minorities could be addressed

through agency regulations designed to implement the purposes of Title VI.” Alexander v. Choate, 439 U.S. 287,

295 (1985), discussing Guardians Ass’n v. City Service Comm’n of N.Y., 403 U.S. 582 (1983). The United States

Supreme Court has never expressly ruled on whether Section 504, Title II and Title IX statutes prohibit not only

intentional discrimination, but, unlike Title VI, prohibit disparate impact discrimination as well. See, e.g., Choate,

409 U.S. at 294-97 & n.11 (observing that Congress might have intended the Section 504 statute itself to prohibit

disparate impact discrimination). Section 504 and Title II require reasonable modifications where necessary to

enable persons with disabilities to participate in or enjoy the benefits of public services. Regardless, the regulations

implementing Section 504, Title II, and Title IX, like the Title VI regulation, explicitly prohibit actions having

discriminatory effects as well as actions that are intentionally discriminatory.

These criteria [measurement validity, attribution of cause, and effectiveness of treatment],

based on established professional standards, lead to the following basic principles of

appropriate test use for educational decisions:

• The important thing about a test is not its validity in general, but its validity when

used for a specific purpose. Thus, tests that are valid for influencing classroom practice,

“leading” the curriculum, or holding schools accountable are not appropriate for making

high-stakes decisions about individual student mastery unless the curriculum, the

teaching, and the test(s) are aligned.

• Tests are not perfect. Test questions are a sample of possible questions that could be

asked in a given area. Moreover, a test score is not an exact measure of a student’s

knowledge or skills. A student’s score can be expected to vary across different versions

of a test – within a margin of error determined by the reliability of the test – as a

function of the particular sample of questions asked and/or transitory factors, such as

the student’s health on the day of the test. Thus, no single test score can be considered

a definitive measure of a student’s knowledge.

• An educational decision that will have a major impact on a test taker should not be

made solely or automatically on the basis of a single test score. Other relevant

information about the student’s knowledge and skills should also be taken into account.

• Neither a test score nor any other kind of information can justify a bad decision.

Research shows that students are typically hurt by simple retention and repetition of a

grade in school without remedial and other instructional supports. In the absence of

effective services for low-performing students, better tests will not lead to better

educational outcomes.

National Research Council, High Stakes: Testing for Tracking, Promotion and Graduation, p. 3

(Jay P. Heubert & Robert M. Hauser eds., 1999).

B. Legal Principles

Federal constitutional, statutory, and regulatory principles form the federal legal

nondiscrimination framework applicable to the use of tests for high-stakes purposes. Title

VI, Title IX, Section 504, and Title II, as well as the equal protection clause of the Fourteenth

Amendment to the United States Constitution, prohibit intentional discrimination based

on race, national origin, sex, or disability.38 In addition, the regulations that implement

Title VI, Title IX, Section 504, and Title II prohibit intentional discrimination as well as
The Use of Tests as Part of High-Stakes Decision-Making for Students:

14 A Resource Guide For Educators and Policy-Makers

39 34 C.F.R. § 100.3(b)(2) (Title VI); 34 C.F.R. §§ 106.21(b)(2), 106.36(b), 106.52 (Title IX); 34 C.F.R. § 104.4(b)(4)(i)

(Section 504); 28 C.F.R. § 35.130(b)(3) (Title II).

The authority of federal agencies to issue regulations with an “effects” standard has been consistently acknowledged

by U.S. Supreme Court decisions and applied by lower federal courts addressing claims of discrimination in

education. See, e.g., Choate, 469 U.S. at 289-300; Guardians Ass’n, 463 U.S. at 584-93; Lau v. Nichols, 414 U.S.

563, 568 (1974); see also Memorandum from the Attorney General for Heads of Departments and Agencies that

Provide Federal Financial Assistance, Use of the Disparate Impact Standard in Administrative Regulations under

Title VI of the Civil Rights Act of 1964 (July 14, 1994).

40 The Individuals with Disabilities Education Act (IDEA) establishes rights and protections for students with disabilities

and their families. It also provides federal funds to local school districts and state agencies to assist in educating

students with disabilities. See 20 U.S.C. §§ 1400(1)(c) et seq. The specific sections of the regulations implementing

Section 504 and the IDEA bearing on testing are 20 U.S.C. §§ 1412(a)(17), 1414(b); 34 C.F.R. §§ 104.4(b)(4),

104.33, 104.35, 104.42(b), 104.44, 300.138 - .139, 300.530 - .536.

41 For specific court decisions examining these issues, see discussion infra Chapter 2 (Legal Principles) & nn.167-

171.

policies or practices that have a discriminatory disparate impact on students based on

their race, national origin, sex, or disability.39 The Section 504 regulation and the Individuals

with Disabilities Education Act (IDEA) contain specific provisions relevant to the use of

high-stakes tests for individuals with disabilities.40

These sources of legal authority should be considered in conjunction with the test

measurement principles discussed in this guide to ensure that standardized tests are used

in a manner that supports sound educational decisions, regardless of the race, national

origin (including limited English proficiency), sex, or disability of the students affected.

Some of the issues that have been considered by federal courts in assessing the legality of

specific testing practices for making high-stakes decisions include:41

l The use of an educational test for a purpose for which the test was not designed or

validated;

l The use of a test score as the sole criterion for the educational decision;

l The nature and quality of the opportunity provided to students to master required

content, including whether classroom instruction included the material covered by

a test administered to determine student achievement;

l The significance of any fairness problems identified, including evidence of

differential prediction criterion and possible cultural biases in the test or in test

items; and

l The educational basis for establishing passing or cutoff scores.

1. Frameworks for Analysis

a. Different Treatment

Under federal law, policies and practices generally must be applied consistently to similarly

situated individuals or groups regardless of their race, national origin, sex, or disability.
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 15

42 See People Who Care v. Rockford Bd. of Educ., 851 F. Supp. 905, 958-1001 (N.D. Ill. 1994), remedial order rev’d, in

part, 111 F.3d 528 (7th Cir. 1997). On appeal, the Seventh Circuit Court of Appeals stated that the appropriate remedy

based on the facts in this case was to require the district to use objective, non-racial criteria to assign students to classes,

rather than abolishing the district’s tracking system. See id. at 536.

43 Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526, 538 (1979) (quoting Green v. County School Bd., 391 U.S. 430, 439

(1968)).

44 See Debra P. v. Turlington, 644 F.2d 397, 407 (5th Cir. 1981) (“[Defendants] failed to demonstrate either that the

disproportionate failure [rate] of blacks was not due to the present effects of past intentional segregation or, that as

presently used, the diploma section was necessary [in order] to remedy those effects.”); McNeal v. Tate County Sch.

Dist., 508 F.2d 1017, 1020 (5th Cir. 1975) (ability grouping method that causes segregation may nonetheless be

used “if the school district can demonstrate that its assignment method is not based on the present results of past

segregation or that the method of assignment will remedy such effects through better educational opportunities”);

see also United States v. Fordice, 505 U.S. 717, 731 (1992) (“If the State [university system] perpetuates policies

and practices traceable to its prior system that continue to have segregative effects . . . and such policies are without

sound educational justification and can be practically eliminated, the State has not satisfied its burden of proving

that it has dismantled its prior system.”); cf. GI Forum v. Texas Educ. Agency, 87 F. Supp. 2d 667, 673, 684 (W.D.

Tex. 2000) (the court concluded, based on the facts presented, that the test seeks to identify inequities and address

them; the state had ensured that the exam is strongly correlated to material actually taught in the classroom;

remedial efforts, on balance, are largely successful; and minority students have continued to narrow the passing

gap at a rapid rate).

45 34 C.F.R. § 100.3(b)(2) (Title VI); 34 C.F.R. § 104.4(b)(4)(i) (Section 504); 28 C.F.R. § 35.130(b)(3)(i) (Title II);

see also 34 C.F.R. §§ 106.21, 106.31, 106.36(b), 106.52 (Title IX). In Guardians Association, the United States

Supreme Court upheld the use of the effects test, stating that the Title VI regulation forbids the use of federal funds

“not only in programs that intentionally discriminate, but also in those endeavors that have a [racially

disproportionate] impact on racial minorities.” 463 U.S. at 589.

For example, a court concluded that a school district had intentionally treated students

differently on the basis of race where minority students whose test scores qualified them

for two or more ability levels were more likely to be assigned to the lower level class than

similarly situated white students, and no explanatory reason was evident.42

In addition, educational systems that previously discriminated by race in violation of the

Fourteenth Amendment and have not achieved unitary status have an obligation to

dismantle their prior de jure segregation. In such instances, school districts are under “a

‘heavy burden’ of showing that actions that [have] increased or continued the effects of

the dual system serve important and legitimate ends.”43 When such a school district or

educational system uses a test or assessment procedure for a high-stakes purpose that has

significant racially disparate effects, to justify the test use, the school district must show that

the test results are not due to the present effects of prior segregation or that the practice or

procedure remedies the present effects of such segregation by offering better educational

opportunities.44

b. Disparate Impact

The federal nondiscrimination regulations also provide that a recipient of federal funds

may not “utilize criteria or methods of administration which have the effect of subjecting

individuals to discrimination.”45 Thus, discrimination under federal law may occur where

the application of neutral criteria has disparate effects and those criteria are not educationally

justified.
The Use of Tests as Part of High-Stakes Decision-Making for Students:

16 A Resource Guide For Educators and Policy-Makers

The disparate impact analysis has

been frequently misunderstood to

indicate a violation of law based

merely on disparities in student

performance and to obligate

educational institutions to change

their policies and procedures to

guarantee equal results. Under

federal law, a statistically significant

difference in outcomes creates the

need for further examination of the

educational practices that have

caused the disparities in order to

ensure accurate and nondiscriminatory decision-making, but disparate impact alone is

not sufficient to prove a violation of federal civil rights laws.

Courts applying the disparate impact test have generally examined three questions to

determine if the practice at issue is discriminatory: (1) Does the practice or procedure in

question result in significant differences in the award of benefits or services based on race,

national origin, or sex? (2) Is the practice or procedure educationally justified? (3) Is there

an equally effective alternative that can accomplish the institution’s educational goal with

less disparity?46 (For a discussion of disability discrimination, including disparate impact

discrimination, see discussion infra Chapter 2 (Legal Principles) Part III (Testing Students

with Disabilities).47)

Under the disparate impact analysis, the party challenging the test has the burden of

establishing disparate impact, generally through evidence of a statistically significant

difference in the awards of benefits or services. If disparate impact is established, the

educational institution must demonstrate the educational justification (also referred to as

“educational necessity”) for the practice in question.48 If sufficient evidence of an

It is ... important to note that group

differences in test performance do not

necessarily indicate problems in a test,

because test scores may reflect real

differences in achievement. These, in turn,

may be due to a lack of access to a high quality

curriculum and instruction. Thus, a finding

of group differences calls for a careful effort

to determine their cause.

National Research Council, High Stakes: Testing

for Tracking, Promotion, and Graduation, p. 5 (Jay

P. Heubert & Robert M. Hauser eds., 1999).

46 Courts use a variety of terms when discussing whether an alternative offered by the party challenging the practice

would effectively further the institution’s goals. See, e.g., Georgia State Conf. of Branches of NAACP v. Georgia, 775

F.2d 1403, 1417 (11th Cir. 1985) (party challenging the practice “may ultimately prevail by proffering an equally

effective alternative practice which results in less racial disproportionality”); Elston v. Talladega, 997 F.2d 1394,

1407 (11th Cir. 1993) (party challenging the practice “will still prevail if able to show that there exists a comparably

effective alternative practice which would result in less disproportionality”). These terms (“equally effective” and

“comparably effective”) appear to be used synonymously.

47 Disparate impact disability discrimination may take forms that are not always amenable to analysis through the

three-part approach used in race and sex discrimination cases. For example, statistical proof may not be necessary

when evaluating the effects of architectural barriers. See Choate, 469 U.S. at 297-300. For this reason, disability

discrimination is discussed separately in this guide. See discussion infra Chapter 2 (Legal Principles) Part III (Testing

of Students with Disabilities).

48 Elston, 997 F.2d at 1412.
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 17

49 Georgia State Conf., 775 F.2d at 1417; see also Department of Justice, Title VI Legal Manual, p. 2.

50 See Equal Educational Opportunities Act of 1974, 20 U.S.C. §§ 1701-1720; Lau, 414 U.S. at 568-69; Castaneda

v. Pickard, 648 F.2d 989, 1011 (5th Cir. 1981); Michael L. Williams, Former Assistant Secretary for Civil Rights,

Memorandum to OCR Senior Staff (September 27, 1991) (hereinafter Williams Memorandum).

51 States and school districts are also required to provide limited English proficient students with “reasonable

adaptations and accommodations” in certain situations when using assessments for the purpose of holding schools

and districts accountable for student performance under Title I. Title I of the Elementary and Secondary Education

Act, 20 U.S.C. § 6311(b)(3)(F)(ii). Moreover, Title I requires States, to the extent practicable, to provide nativelanguage assessments to LEP students for Title I accountability purposes if that is the language and form of assessment

most likely to yield accurate and reliable information about what students know and can do. 20 U.S.C. §

6311(b)(3)(F)(iii). For a discussion of comparability issues arising in the testing of LEP students, see discussion infra

Chapter 2 (Legal Principles) Part II (Testing of Students with Limited English Proficiency).

52 The Section 504 regulation is found at 34 C.F.R. Part 104. The Title II regulation is found at 28 C.F.R. Part 35. The

IDEA regulation is found at 34 C.F.R. Part 300.

educational justification has been provided, the party challenging the test must then

establish, in order to prevail, that an alternative practice with less disparate impact is equally

effective in furthering the institution’s educational goals.49

2. Principles Relating to Inclusion and Accommodations

a. Limited English Proficient Students

The obligations of states and school districts with regard to testing of limited English proficient

students for high-stakes purposes in elementary and secondary schoolsmust be examined

within the overall context of the Title VI obligation to provide equal educational

opportunities to limited English proficient students. Under Title VI, school districts have

an obligation to identify limited English proficient students and to provide them with an

instructional program or services that enables them to acquire English-language proficiency

as well as the knowledge and skills that all students are expected to master.50 School

districts also have a responsibility to ensure that the instructional program or services provide

limited English proficient students with a meaningful opportunity to acquire the academic

knowledge and skills covered by tests required for graduation or other educational benefits.

In addition, states or school districts using tests for high-stakes purposes must ensure that,

as with all students, the tests effectively measure limited English proficient students’

knowledge and skills in the particular content area being assessed. For limited English

proficient elementary and secondary school students in particular, it may be necessary in

some situations to provide accommodations so that the tests provide accurate information

about the knowledge and skills intended to be measured.51

b. Students with Disabilities

Under Section 504, Title II, and the IDEA,52 school districts have a responsibility to provide

elementary and secondary school students with disabilities with a free appropriate public

education. Providing effective instruction in the general curriculum for students with
The Use of Tests as Part of High-Stakes Decision-Making for Students:

18 A Resource Guide For Educators and Policy-Makers

53 States and school districts are also required to provide students with disabilities with “reasonable adaptations and

accommodations” in certain situations when using assessments for the purpose of holding schools and districts

accountable for student performance under Title I. 20 U.S.C. § 6311(b)(3)(F)(ii).

54 Under the IDEA, students with disabilities must be included in state and districtwide assessment programs.

34 C.F.R. § 300.138(a). However, if the IEP team determines that a student should not participate in a particular

statewide or districtwide assessment of student achievement (or part of such an assessment), the student’s IEP must

include statements of why that test is not appropriate for the student and how the student will be assessed.

34 C.F.R. § 300.347(a)(5). The IDEA also requires state or local education agencies to develop guidelines for

students with disabilities who cannot take part in state- and districtwide assessments to participate in alternate

assessments; these alternate assessments must be developed and conducted beginning not later than July 1, 2000.

34 C.F.R. § 300.138(b).

55 34 C.F.R. § 300.138(b).

56 34 C.F.R. § 104.42(b)(2).

57 34 C.F.R. § 104.42(b)(3).

disabilities is an important aspect of providing a free appropriate public education. Under

federal law, students with disabilities must be included in statewide or districtwide

assessment programs and provided with appropriate accommodations, if necessary.53 There

must be an individualized determination of whether a student with a disability will

participate in a particular test and the appropriate accommodations, if any, that a student

with a disability will need. This individualized determination must be addressed through

the individualized education program (IEP) process or other applicable evaluation

procedures and included in either the student’s IEP or Section 504 plan.54 The IDEA also

requires state or local education agencies to develop guidelines for the relatively small

number of students with disabilities who cannot take part in statewide or districtwide tests

to participate in alternate assessments.55

Finally, under Section 504, post-secondary education institutions may not make use of

any test or criterion for admission that has a disproportionate adverse impact on individuals

with disabilities unless (1) the test or criterion, as used by the institution, has been validated

as a predictor of success in the education program or activity and (2) alternate tests or

criteria that have a less disproportionate adverse impact are not shown to be available by

the party asserting that the test or criterion is discriminatory.56 Admissions tests must be

selected and administered so as best to ensure that, when a test is administered to an

applicant with a disability, the test results accurately reflect the applicant’s aptitude or

achievement level, rather than reflecting the effect of the disability (except where the

functions impaired by the disability are the factors the test purports to measure).57 A student

requesting an accommodation must initially provide documentation of the disability and

the need for accommodation. Admissions tests designed for persons with impaired sensory,

manual, or speaking skills must be offered as often and in as timely a manner as are other

admissions tests. Admissions tests also must be offered in facilities that, on the whole, are

accessible to individuals with disabilities.
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 19

58 The requirements of Title VI, Title IX and Section 504 apply only to recipients of federal financial assistance. The

protections afforded by the Fifth and Fourteenth Amendments to the U.S. Constitution apply to actions by “state

actors” and are not dependent upon receipt of federal financial assistance.

59 Federal cases may also involve equal protection challenges to a jurisdiction’s use of tests in which the claim is not

based on race or sex discrimination, but, instead, on assertions that the classifications made by the jurisdiction on

the basis of test scores are unreasonable, regardless of the race or sex of the students affected. See GI Forum, 87 F.

Supp. 2d at 682. As a general matter, courts express reluctance to second guess a state’s educational policy choices

when faced with such challenges, although they recognize that a state cannot “exercise that [plenary] power without

reason and without regard to the United States Constitution.” Debra P., 644 F.2d at 403. When there is no claim of

discrimination based on membership in a suspect class, the equal protection claim is reviewed under the rational

basis standard. In these cases, the jurisdiction need show only that the use of the tests has a rational relationship to

a valid state interest. Id. at 406; Erik V. v. Causby, 977 F. Supp. 384, 389 (E.D.N.C. 1997).

60 See Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 226-27 (1985); Debra P., 644 F.2d at 406; Anderson

v. Banks, 520 F. Supp. 472, 506 (S.D. Ga. 1981).

61 See Ewing, 474 U.S. at 226-27; Debra P., 644 F.2d at 406; Anderson, 520 F. Supp. at 506.

62 See Ewing, 474 U.S. at 222, 226-27; Debra P., 644 F.2d at 406; GI Forum, 87 F. Supp. 2d at 682; Anderson, 520

F. Supp. at 506.

3. Federal Constitutional Questions Related to the Use of Tests as Part of

High-Stakes Decision-Making for Students

The equal protection and due process requirements of the Fifth and Fourteenth

Amendments to the U.S. Constitution also apply to ensure that high-stakes decisions by

public schools or states involving the use of tests are made appropriately.58 The equal

protection principles involved in discrimination cases are, generally speaking, the same

as the standards applied to intentional discrimination (or different treatment) claims under

the applicable federal nondiscrimination statutes.59 Courts addressing due process claims

have examined three questions related to the use of tests as bases for promotion or

graduation decisions:

l Is the testing program reasonably related to a legitimate educational purpose?

l Have students received adequate notice of the test and its consequences?

l Have students actually been taught the knowledge and skills measured by the

test?

Federal courts have typically deferred to educators’ authority to formulate appropriate

educational goals.60 For example, improving the quality of education, ensuring that students

can compete on a national and international level, and encouraging educational

achievement through the establishment of academic standards have been found to be

legitimate goals for testing programs.61 The constitutional inquiry then proceeds to examine

whether the challenged testing program is reasonably related to the educators’ legitimate

goals or whether the program is arbitrary and capricious or fundamentally unfair.62
The Use of Tests as Part of High-Stakes Decision-Making for Students:

20 A Resource Guide For Educators and Policy-Makers

63 See Brookhart v. Illinois Bd. Of Educ., 697 F.2d 179, 185 (7th Cir. 1983); Debra P., 644 F.2d at 404; Erik V., 977

F. Supp. at 389-90; Anderson, 520 F. Supp. at 1410-12.

64 See Brookhart, 697 F.2d at 184-87; Debra P., 644 F.2d at 406; GI Forum, 87 F. Supp. 2d at 682; Anderson, 520

F. Supp. at 509.

65 Brookhart, 697 F.2d at 184-87; Debra P., 644 F.2d at 406; Anderson, 520 F. Supp. at 509. Insofar as due process

cases may involve additional questions regarding the validity, reliability, and fairness of the test used to address the

educational institution’s stated purposes, these issues are discussed in the portions of the guide addressing

discrimination under federal civil rights laws.

In due process cases, courts have generally required advance notice of test requirements

in order to give students a reasonable chance to understand the standards against which

they will be evaluated and to learn the material for which they are to be accountable.63 A

reasonable transition period is required between the development of a new academic

requirement and the attachment of high-stakes consequences to tests used to measure

academic achievement. That time period varies, however, depending upon the precise

context in which the high-stakes decision is to be made. Relevant inquiries affecting

determinations about the constitutionality of notice and timing have included questions

about the alignment of curriculum and instruction with material tested, the number of test

taking opportunities provided to students, tutorial or remedial opportunities provided to

students, and whether factors in addition to test scores can affect high-stakes decisions.

Finally, in due process cases, federal courts have required, as a matter of “fundamental

fairness,” that students have a reasonable opportunity to learn the material covered by the

test where passing the test is a condition of receipt of a high school diploma or a condition

for grade-to-grade promotion.64 For the test to meaningfully measure student achievement,

the test, the curriculum, and classroom instruction should be aligned.65
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 21

66 See, e.g., High Stakes, supra note 11, at pp. 59-60.

67 Among other considerations, institutions will determine if they want test score interpretations that are normreferenced or criterion-referenced, or both. Norm-referenced means that the performances of students are compared

to the performances of other students in a specified reference population; criterion-referenced indicates the extent

to which students have mastered specific knowledge and skills.

68 Joint Standards, supra note 3, at p. 141; see also Standard 13.7 (n.8) in Joint Standards, supra note 3, at p. 146.

69 Joint Standards, supra note 3, at p. 141.

CHAPTER 1: Test Measurement Principles

This chapter explains basic test measurement standards and related educational principles

for determining whether tests used as part of making high-stakes decisions for students

provide accurate and fair information. As explained in Chapter Two below, federal court

decisions have been informed and guided by professional test measurement standards

and principles. Understanding professional test measurement standards can assist in efforts

to use tests wisely and to comply with federal nondiscrimination laws.66 This chapter is

intended as a helpful discussion of how to understand test measurement concepts and

their use. These are not specific legal requirements, but rather are foundations for

understanding appropriate test use.

Educational institutions use tests to accomplish specific purposes based on their educational

goals, including making placement, promotion, graduation, admissions, and other

decisions. It is only after educational institutions have determined the underlying goal

they want to accomplish that they can identify the types of information that will best inform

their decision-making. That information may include test results as well as other relevant

measures that can effectively, accurately, and fairly address the purposes and goals specified

by the institutions.67 As stated in the Joint Standards, “When interpreting and using scores

about individuals or groups of students, consideration of relevant collateral information

can enhance the validity of the interpretation, by providing corroborating evidence or

evidence that helps explain student performance. . . . As the stakes of testing increase for

individual students, the importance of considering additional evidence to document the

validity of score interpretations and the fairness in testing increases accordingly.”68

Although this guide focuses on the use of tests, policy-makers and educators need to

consider the soundness and relevance of the entire high stakes decision-making process,

including other information used in conjunction with test results.69

In using tests as part of high-stakes decision-making, educational institutions should ensure

that the test will provide accurate results that are valid, reliable, and fair for all test takers.

This includes obtaining adequate evidence of test quality about the current test being

proposed and its use, evaluating the evidence, and ensuring that appropriate test use is
The Use of Tests as Part of High-Stakes Decision-Making for Students:

22 A Resource Guide For Educators and Policy-Makers

70 In order to provide educational institutions with tests that are accurate and fair, test developers should develop

tests in accordance with professionally recognized standards, and provide educational institutions with adequate

evidence of test quality.

Standard 1.4 states, “If a test is used in a way that has not been validated, it is incumbent on the user to justify the

new use, collecting new evidence if necessary.” Joint Standards, supra note 3, at p. 18.

Standard 11.2 states, “When a test is to be used for a purpose for which little or no documentation is available, the

user is responsible for obtaining evidence of the test’s validity and reliability for this purpose.” Joint Standards,

supra note 3, at p. 113.

71 See Standard 7.5, 13.5 (n.22) and 13.6 (n.21) in Joint Standards, supra note 3, at pp. 82, 146.

Standard 7.5 states, “In testing applications involving individualized interpretations of test scores other than selection,

a test taker’s score should not be accepted as a reflection of standing on the characteristic being assessed without

consideration of alternate explanations for the test taker’s performance on that test at that time.” Joint Standards,

supra note 3, at p. 82.

72 Joint Standards, supra note 3, at pp. 9, 184.

73 Joint Standards, supra note 3, at pp. 9-24.

based on adequate evidence.70 When test results are used to make high-stakes decisions

about student promotion or graduation, educational institutions should provide students

with a reasonable number of opportunities to demonstrate mastery and ensure that there

is evidence available that students have had an adequate opportunity to learn the material

being tested.71

I. Key Considerations in Test Use

This section addresses the fundamental concepts of test validity and reliability. It will also

discuss issues associated with ensuring fairness in the meaning of test scores, and issues

related to using appropriate cut scores. Test developers and users as appropriate determine

adequate validity and reliability, ensure fairness, and determine where to set and how to

use cut scores appropriately for all students by accumulating evidence of test quality from

relevant groups of test takers.

A. Validity

Test validity refers to a determination of how well a test actually measures what it says it

measures. The Joint Standards defines validity as “[t]he degree to which accumulated

evidence and theory support specific interpretations of test scores entailed by proposed

uses of a test.”72 The demonstration of validity is multifaceted and must always be

determined within the context of the specific use of a test. In order to promote readability,

the discussion on validity presented here is meant to reflect this complex topic in an accurate,

but concise and user-friendly way. The Joint Standards identifies and discusses in detail

principles related to determining the validity of test results within the context of their use,

and readers are encouraged to review the Joint Standards, Chapter 1, Validity, for

additional, relevant discussion.73
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 23

74 Joint Standards, supra note 3, at p. 173.

75 The Joint Standards defines a content domain as “the set of behaviors, knowledge, skills, abilities, attitudes or

other characteristics to be measured by a test, represented in a detailed specification, and often organized into

categories by which items are classified.” Joint Standards, supra note 3, at p. 174. A domain, then, represents a

definition of a content area for the purposes of a particular test. Other tests will likely have a different definition of

what knowledge and skills a particular content area entails.

There are three central points to keep in mind regarding validity:

l The focus of validity is not really on the test itself, but on the validity of the inferences

drawn from the test results for a given use.

l All validity is really a form of “construct validity.”

l In validating the inferences of the test results, it is important to consider the

consequences of the test’s interpretation and use.

1. Validity of the Inferences Drawn from the Scores

It is not the test that is validated per se, but the inferences or meaning derived from the test

scores for a given use—that is, for a specific type of purpose, in a specific type of situation,

and with specific groups of students. The meaning of test scores will differ based on such

factors as how the test is designed, the types of questions that are asked, and the

documentation that supports how all groups of students are interpreting what the test is

asking and how effectively their performance can be generalized beyond the test.

For instance, in one case, the educational institution may want to evaluate how well students

can analyze complex issues and evaluate implications in history. For a given amount of

test time, they would want to use a test that measures the ability of students to think deeply

about a few selected history topics. The meaning of the scores should reflect this purpose

and the limits of the range of topics being measured on the test. In another case, the

institution may want to assess how well students know a range of facts about a wide variety

of historical events. The institution would want to use a test that measures a broad range

of knowledge about many different occurrences in history. The inferences drawn from the

scores should be validated to determine how well they measure students’ knowledge of a

broad range of historical facts, but not necessarily how well students analyze complex

issues in history.

2. Construct Validity

Construct validity refers to the degree to which the scores of test takers accurately reflect

the constructs a test is attempting to measure. The Joint Standards defines a construct as

“the concept or the characteristic that a test is designed to measure.”74 Test scores and

their inferences are validated to measure one or more constructs, which together comprise

a particular content domain.75 In K-12 education, these domains are often codified in

state or district content standards covering various subject areas. For instance, the domain

of mathematics as described in the state’s elementary mathematics content standards may
The Use of Tests as Part of High-Stakes Decision-Making for Students:

24 A Resource Guide For Educators and Policy-Makers

76 See Joint Standards, supra note 3, at pp. 9-11, 184.

77 Therefore, construct validity can be seen as an umbrella that encompasses what has previously been described as

predictive validity, content validity, criterion validity, discriminant validity, etc. Rather, these terms refer to types or

sources of evidence that can be accumulated to support the validity argument. Definitions of these terms can be

found in Appendix B, Measurement Glossary.

78 Joint Standards, supra note 3, at p. 9.

79 Joint Standards, supra note 3, at p. 9.

involve the constructs of mathematical problem-solving and knowledge of number systems.

Items may be selected for a test that sample from this domain, and should be properly

representative of the constructs identified within it. In that way, the meaning of the test

scores should accurately reflect the knowledge and skills defined in the mathematics content

standards domain.

Validity should be viewed as the overarching, integrative evaluation of the degree to which

all accumulated evidence supports the intended interpretation of the test scores for a

proposed purpose.76 This unitary and comprehensive concept of validity is referred to as

“construct validity.” Different sources of validity evidence may illuminate different aspects

of validity, but they do not represent distinct types of validity.77

Therefore, “construct validity” is not just one of the many types of validity—it is validity.

The process of test validation “logically begins with an explicit statement of the proposed

interpretation of test scores, along with a rationale for the relevance of the interpretation

for the proposed use.”78 Demonstrating construct validity then means gathering a variety

of types of evidence to support the intended interpretations and uses of test scores. “The

decision about what types of evidence are important for validation in each instance can

be clarified by developing a set of propositions that support the proposed interpretation

for the particular purpose of testing.”79 These propositions provide details that support

the claims that, for a proposed use, the test validly measures particular skills and knowledge

of the students being tested. For instance, if a test is designed to measure students’ learning

of material described in a district’s science content standards, evidence that the test is

properly aligned with these standards for the types of students taking the test would be a

crucial component of the test’s validity. When such evidence is in place, users of the test

can correctly interpret high scores as indicators that students have learned the designated

material and low scores as evidence that they have not.

All validity evidence and the interpretation of the evidence are focused on the basic

question: Is the test measuring the concept, skill, or trait in question? Is it, for example,

really measuring mathematical reasoning or reading comprehension for the types of

students that are being tested? A variety of types of evidence can be used to answer this

question—none of which provides a simple yes or no answer. The exact nature of the

types of evidence that need to be accumulated is directly related to the intended use of the

test, which includes evidence regarding the skills and knowledge being measured, evidence
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 25

80 Rather than follow the traditional nomenclature (e.g. predictive validity, content validity, criterion validity,

discriminant validity, etc.), the Joint Standards defines sources of validity evidence as evidence based on test

content, evidence based on response processes, evidence based on internal structure, evidence based on relations

to other variables, and evidence based on consequences of testing. See Joint Standards, supra note 3, at pp. 11-

17.

81 See Joint Standards, supra note 3, at pp. 9-24 (Chapter 1, Validity).

documenting validity for the stated purpose, and evidence of validity for all groups of

students taking the test.80

For instance, an educational institution may want to use a test to help make promotion

decisions. It may also want to use a test to place students in the appropriate sequence of

courses. In each situation, the types of validity evidence an institution would expect to see

would depend on how the test is being used.

In making promotion decisions, the test should reflect content the student has learned.

Appropriate validation would include adequate evidence that the test is measuring the

constructs identified in the curriculum, and that the inferences of the scores accurately

reflect the intended constructs for all test takers. Validation of the decision process involving

the use of the test would include adequate evidence that low scores reflect lack of knowledge

of students after they have been taught the material, rather than lack of exposure to the

curriculum in the first place.

In making placement decisions, on the other hand, the test may not need to measure

content that the student has already learned. Rather, at least in part, the educational

institution may want the test to measure aptitude for the future learning of knowledge or

skills that have been identified as necessary to complete a course sequence. Appropriate

validation would include documentation of the relationship between what constructs are

being measured in the test and what knowledge and skills are actually needed in the

future placements. Evidence should also provide documentation that scores are not

significantly confounded by other factors irrelevant to the knowledge and skills the test is

intending to measure.

Institutions often think about using the same test for two or more purposes. This is

appropriate as long as the validity evidence properly supports the use of the test for each

purpose, and properly supports that the inferences of the results accurately reflect what

the test is measuring for all students taking the test.81

The empirical evidence related to the various aspects of construct validity is collected

throughout test development, during test construction, and after the test is completed. It is

important for educators and policy-makers to understand and expect that the accumulated
The Use of Tests as Part of High-Stakes Decision-Making for Students:

26 A Resource Guide For Educators and Policy-Makers

82 Standard 3.6 states “The type of items, the response formats, scoring procedures, and test administration

procedures should be selected based on the purposes of the test, the domain to be measured, and the intended test

takers. To the extent possible, test content should be chosen to ensure that intended inferences from test scores are

equally valid for members of different groups of test takers. The test review process should include empirical

analyses and, when appropriate, the use of expert judges to review items and response formats. The qualifications,

relevant experiences, and demographic characteristics of expert judges should also be documented.” Joint Standards,

supra note 3, at p. 44.

83 As indicated in the Joint Standards, “The extent to which predictive or concurrent evidence of validity generalization

can be used in new situations is in large measure a function of accumulated research. Although evidence of

generalization can often help to support a claim of validity in a new situation, the extent of available data limits the

extent to which the claim can be sustained.” Joint Standards, supra note 3, at pp. 15-16.

84 Joint Standards, supra note 3, at p. 10.

85 Samuel Messick, Validity, in Educational Measurement, pp. 13-103 (Robert L. Linn ed., 3rd ed. 1989) (hereinafter

Messick, Validity); Samuel Messick, Validity of Psychological Assessment: Validations of Inferences from Persons’

Responses and Performances as Scientific Inquiry into Score Meaning, American Psychologist 50(9), pp. 741-749

(September 1995) (hereinafter Messick, Validity of Psychological Assessment).

evidence spans the range of test development and implementation. There is not just one

set of documentation collected at one point in time.82

When the empirical database is large and includes results from a number of studies related

to a given purpose, situation, and type of test takers, it may be appropriate to generalize

validity findings beyond validity data gathered for one particular test use. That is, it may

be appropriate to use evidence collected in one setting when determining the validity of

the meaning of the test scores for a similar use. If the accumulated validity evidence for a

particular purpose, situation, or subgroup is small, or features of the proposed use of the

test differ markedly from an adequate amount of validity evidence already collected,

evidence from this particular type of test use will generally need to be compiled.83

Regardless of where the evidence is collected, educational institutions should expect

adequate documentation of construct validity based on needs defined by the particular

purposes and populations for which a test is being used.

When considering the types of construct validity evidence to collect, the Joint Standards

emphasizes that it is important to guard against the two major sources of validity error.

This error can distort the intended meaning of scores for particular groups of students,

situations, or purposes.84

One potential source of error omits some important aspects of the intended construct

being tested. This is called construct underrepresentation.85 An example would be a test

that is being used to measure English language proficiency. When the institution has

defined English language proficiency as including specific skills in listening, speaking,

reading, and writing the English language, and wants to use a test which measures these

aspects, construct underrepresentation would occur if the test only measured the reading

skills.
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 27

86 Messick, Validity, supra note 85; Messick, Validity of Psychological Assessment, supra note 85.

87 On the other hand, if an item is measuring the student’s ability to apply mathematical skills in a written

format (for instance when an item requires students to fill out an order form), then writing skills may not be

extraneous to the construct being measured in this item.

88 See Joint Committee on Testing Practices, Code of Fair Testing Practices in Education (1988).

89 See Standard 1.24, 7.5 (n.71) and 7.6 in Joint Standards, supra note 3, at pp. 23-24, 82.

Standard 1.24 states, “When unintended consequences result from test use, an attempt should be made to investigate

whether such consequences arise from the test’s sensitivity to characteristics other than those it is intended to assess

or to the test’s failure fully to represent the intended construct.” Joint Standards, supra note 63, at p. 23.

Standard 7.6 states, “When empirical studies of differential prediction of a criterion for members of different

subgroups are conducted, they should include regression equations (or an appropriate equivalent) computed

separately for each group or treatment under consideration or an analysis in which the group or treatment variables

are entered as moderator variables.” Joint Standards, supra note 3, at p. 82.

The other potential source of error occurs when a test measures material that is extraneous

to the intended construct, confounding the ability of the test to measure the construct that

it intends to measure. This source of error is called construct irrelevance.86 For instance,

how well a student reads a mathematics test may influence the student’s subtest score in

mathematics computation. In this case, the student’s reading skills may be irrelevant when

the skill of mathematics computation is what is being measured by the subtest.87 Thus, in

order to address considerations of construct underrepresentation and construct irrelevance

it is important to collect evidence not only about what a test measures in particular types of

situations or for particular groups of students, but also evidence that seeks to document that the

intended meaning of the test scores is not unduly influenced by either of the two sources of

validity error.

3. Considering the Consequences of Test Use

Evidence about the intended and unintended consequences of test use can provide

important information about the validity of the inferences to be drawn from the test results,

or it can raise concerns about an inappropriate use of a test where the inferences may be

valid for other uses.

For instance, significant differences in placement test scores based on race, gender, or

national origin may trigger a further inquiry about the test and how it is being used to

make placement decisions.88 The validity of the test scores would be called into question

if the test scores are substantially affected by irrelevant factors that are not related to the

academic knowledge and skills that the test is supposed to measure.89

On the other hand, a test may accurately measure differences in the level of students’

academic achievement. That is, low scores may accurately reflect that some students do

not know the content. However, test users should ensure that they interpret those scores
The Use of Tests as Part of High-Stakes Decision-Making for Students:

28 A Resource Guide For Educators and Policy-Makers

90 See Standard 1.22, 1.23, 7.5 (n.71), 7.10 (n.33) and 13.9 (n.23) in Joint Standards, supra note 3, at pp. 23, 82,

83, 147.

Standard 1.22 states, “When it is clearly stated or implied that recommended test use will results in a specific

outcome, the basis for expecting that outcome should be presented, together with relevant evidence.” Joint

Standards, supra note 3, at p. 23.

Standard 1.23 states, “When a test use or score interpretation is recommended on the grounds that testing or the

testing program per se will result in some indirect benefit in addition to the utility of information from the test scores

themselves, the rationale for anticipating the indirect benefit should be made explicit. Logical or theoretical arguments

and empirical evidence for the indirect benefit should be provided. Due weight should be given to any contradictory

findings in the scientific literature, including findings suggesting important indirect outcomes other than those

predicted.” Joint Standards, supra note 3, at p. 23.

91 The Comment under Standard 13.1 states, “Mandated testing programs are often justified in terms of their

potential benefits for teaching and learning. Concerns have been raised about the potential negative impact of

mandated testing programs, particularly when they result directly in important decisions for individuals or institutions.

Frequent concerns include narrowing the curriculum to focus only on the objectives tested, increasing the number

of dropouts among students who do not pass the test, or encouraging other instructional or administrative practices

simply designed to raise test scores rather than to affect the quality of education.” Joint Standards, supra note 3, at

p. 145.

92 High Stakes, supra note 11, at pp. 247-272.

93 Evaluating the reliability of test results includes identifying the major sources of measurement error, the size of the

errors resulting from these sources, the indication of the degree of reliability to be expected, or the generalizability

of results across items, forms, raters, sampling, administrations, and other measurement facets.

Standard 13.1

When educational testing programs are mandated by

school, district, state, or other authorities, the ways in

which test results are intended to be used should be

clearly described. It is the responsibility of those who

mandate the use of tests to monitor their impact and

to identify and minimize potential negative

consequences. Consequences resulting from the uses

of the test, both intended and unintended, should also

be examined by the test user.

correctly in the context of their

high-stakes decisions.90 For

instance, test users could

incorrectly conclude that the

scores reflect lack of ability to

master the content for some

students when, in fact, the low

test scores reflect the limited

educational opportunities that

the students have received. In

this case, it would be

inappropriate to use the test

scores to place low-performing students in a special services program for students who

have trouble learning and processing academic content.91 It would be appropriate to use

the test to evaluate program effectiveness, however.92

B. Reliability

Reliability refers to the degree of consistency of test results over test administrations, forms,

items, scorers, and/or other facets of testing.93 All indices of reliability are estimates of

consistency, and all the estimates contain some error, since no test or other source of
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 29

94 All sources of assessment information, including test results, include some degree of error. There are two types of

error. The first is random error that affects scores in such a way that sometimes students will score lower and

sometimes higher than their “true” score (the actual mastery level of the students’ knowledge and skills). This type

of error, also known as measurement error, particularly affects reliability of scores. Therefore, test scores are considered

reliable when evidence demonstrates that there is a minimum amount of random measurement error in the test

scores for a given group.

The second type of error that affects test results is systematic error. Systematic error consistently affects scores in one

direction; that is, this type of error causes some students to consistently score lower or consistently score higher than

their “true” (or actual) level of mastery. For instance, visually impaired students will consistently score lower than

they should on a test which has not been administered for them in Braille or large print, because their difficulty in

reading the items on the page will negatively impact their score. This type of error generally affects the validity of the

interpretation of the test results and is discussed in the validity section above. Systematic error should also be

minimized in a test for all test takers.

When educators and policy-makers are evaluating the adequacy of a test for their local population of students, it is

important to consider evidence concerning both types of error.

95 These types of reliability estimates are known as test-retest, alternate forms, internal consistency, and inter-rater

estimates, respectively. Joint Standards, supra note 3, at pp. 25-31.

96 Joint Standards, supra note 3, pp. 25-36.

information is ever an “error-free” measure of student performance.94 An example of

reliability of test results over test administrations is when the same students, taking the test

multiple times, receive similar scores. Consistency over parallel forms of a test occurs

when forms are developed to be equivalent in content and technical characteristics.

Reliability can also include estimates of a high degree of relationship across similar items

within a single test or subtest that are intended to measure the same knowledge or skill.

For judgmentally scored tests, such as essays, another widely used index of reliability

addresses stability across raters or scorers. In each case, reliability can be estimated in

different ways, using one of several statistical procedures.95 Different kinds of reliability

estimates vary in degree and nature of generalization. Readers are encouraged to review

Chapter 2, Reliability and Errors of Measurement, in the Joint Standards for additional,

relevant information.96

C. Fairness

Tests are fair when they yield score

interpretations that are valid and

reliable for all groups of students

who take the tests. That is, the tests

must measure the same academic

constructs (knowledge and skills)

for all groups of students who take

them, regardless of race, national

origin, gender, or disability.

Similarly, it is important that the

scores not substantially and

Fairness, like validity, cannot be properly

addressed as an afterthought. ... It must be

confronted throughout the interconnected

phases of the testing process, from test design

and development to administration, scoring,

interpretation, and use.

National Research Council, High Stakes: Testing for

Tracking, Promotion and Graduation, pp. 80-81 (Jay

P. Heubert & Robert M. Hauser eds., 1999).
The Use of Tests as Part of High-Stakes Decision-Making for Students:

30 A Resource Guide For Educators and Policy-Makers

97 Joint Standards, supra note 3, at pp. 74-80. In test measurement, the term fairness has a specific set of technical

interpretations. Four of these interpretations are discussed in the Joint Standards. For instance, bias is discussed in

relation to fairness and is defined in the Joint Standards in two ways: “In a statistical context, (bias refers to) a

systematic error in a test score. In discussing test fairness, bias (also) may refer to construct underrepresentation or

construct-irrelevant components of test scores that differentially affect the performance of different groups of test

takers.” Joint Standards, supra note 3, at p. 172. Fairness as equitable treatment in the testing process “requires

consideration not only of the test itself, but also the context and purpose of testing, and the manner for which test

scores are used.” Joint Standards, supra note 3, at p. 74. Equal scores for students of equal standing reflects that

“examinees of equal standing with respect to the construct the test is intended to measure should on average earn

the same test score, irrespective of group membership.” Joint Standards, supra note 3, at p. 74. For purposes such

as promotion and graduation, “[w]hen some test takers have not had the opportunity to learn the subject matter

covered by the test content, they are likely to get low scores . . . low scores may have resulted in part from not having

had the opportunity to learn the material tested as well as from having had the opportunity and failed to learn.”

Joint Standards, supra note 3, at p. 76.

98 Joint Standards, supra note 3, at pp. 73-84.

99 Joint Standards, supra note 3, at pp. 80-84.

100 Standard 7.2 states, “When credible research reports differences in the effects of construct-irrelevant variance

across subgroups of test takers on performance of some part of the test, the test should be used if at all only for those

subgroups for which evidence indicates that valid inferences can be drawn from test scores.” Joint Standards, supra

note 3, at p. 81.

systematically underestimate or overestimate the knowledge or skills of members of a

particular group. The Joint Standards discusses fairness in testing in terms of lack of bias,

equitable treatment in the testing process, equal scores for students who have equal standing

on the tested constructs, and, depending on the purpose, equity in opportunity to learn

the material being tested.97 In order to promote readability, the discussion on fairness

presented here is meant to reflect this complex topic in an accurate, but concise and userfriendly way. Readers are encouraged to review Chapter 7, Fairness in Testing and Test

Use, in the Joint Standards for additional, relevant information.98

1. Fairness in Validity

Demonstrating fairness in the validation of test score inferences focuses primarily on making

sure that the scores reflect the same intended knowledge and skills for all students taking

the test. For the most part this means that the test should minimize the measurement of

material that is extraneous to the intended constructs and that confounds the ability of the

test to accurately measure the constructs that it intends to measure. A test score should

accurately reflect how well each student has mastered the intended constructs. The score

should not be significantly impacted by construct irrelevant influences.

The Joint Standards identifies a number of standards that outline important considerations

related to fairness in validity throughout test development, test implementation, and the

proper use of reported test results.99

Documenting fairness during test development involves gathering adequate evidence

that items and test scores are constructed so that the inferences validly reflect what is

intended. For all groups of test takers, evidence should support that valid inferences can

be drawn from the scores.100 The Joint Standards states that when credible research reports
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 31

101 See Standard 7.1 and 7.3 in Joint Standards, supra note 3, at pp. 80-81.

Standard 7.1 states, “When credible research reports that test scores differ in meaning across examinee subgroups

for the type of test in question, then to the extent feasible, the same forms of validity evidence collected for the

examinee population as a whole should also be collected for each relevant subgroup. Subgroups may be found to

differ with respect to appropriateness of test content, internal structure of test responses, the relation of test scores to

other variables, or the response processes employed by individual examinees. Any such findings should receive

due consideration in the interpretation and use of scores as well as in subsequent test revisions.” Joint Standards,

supra note 3, at p. 80.

Standard 7.3 states, “When credible research reports that differential item functioning exists across age, gender,

racial/ethnic, cultural, disability and/or linguistic groups in the population of test takers in the content domain

measured by the test, test developers should conduct appropriate studies when feasible. Such research should seek

to detect and eliminate aspects of test design, content, and format that might bias test scores for particular groups.”

Joint Standards, supra note 3, at p. 81.

102 Standard 7.3 (n.101) in Joint Standards, supra note 3, at p. 81.

103 See Standard 7.3 (n.101) and 7.4 in Joint Standards, supra note 3, at pp. 81-82.

Standard 7.4 states, “Test developers should strive to identify and eliminate language, symbols, words, phrases,

and content that are generally regarded as offensive by members of racial, ethnic, gender, or other groups, except

when judged to be necessary for adequate representation of the domain.” Joint Standards, supra note 3, at p. 82.

The Comment to Standard 7.4 states, “Two issues are involved. The first deals with the inadvertent use of language

that, unknown to the test developer, has a different meaning or connotation in one subgroup than in others. Test

publishers often conduct sensitivity reviews of all test material to detect and remove sensitive material from the test.

The second deals with settings in which sensitive material is essential for validity. For example, history tests may

appropriately include material on slavery or Nazis. Tests on subjects from life sciences may appropriately include

material on evolution. A test of understanding of an organization’s sexual harassment policy may require employees

to evaluate examples of potentially offensive behavior.” Joint Standards, supra note 3, at p. 82.

104 See Standard 7.6 (n.89) in Joint Standards, supra note 3, at p. 82.

105 Standard 7.12 states, “The testing or assessment process should be carried out so that test takers receive

comparable and equitable treatment during all phases of the testing or assessment process.” Joint Standards, supra

note 3, at p. 84.

106 Standard 7.7 in Joint Standards, supra note 3, at p. 82.

that item and test results differ in meaning across examinee subgroups, then, to the extent

feasible, separate validity evidence should be collected for each relevant subgroup.101

When items function differently across relevant subgroups, appropriate studies should be

conducted, when feasible, so that bias in items due to test design, content, and format is

detected and eliminated.102 Developers should strive to identify and eliminate language,

form, and content in tests that have a different meaning in one subgroup than in others, or

that generally have sensitive connotations, except when judged to be necessary for adequate

representation of the intended constructs.103 Adequate subgroup analyses should be

conducted when evaluating the validity of scores for prediction purposes.104

Adequate evidence should document the fair implementation of tests for all test takers.

The testing process should reflect equitable treatment for all examinees.105 The Joint

Standards states, “In testing applications where the level of linguistic or reading ability is

not part of the construct of interest, the linguistic or reading demands of the test should be

kept to the minimum necessary for the valid assessment of the intended construct.”106
The Use of Tests as Part of High-Stakes Decision-Making for Students:

32 A Resource Guide For Educators and Policy-Makers

107 See Standard 1.24 (n.89), 7.8, 7.9 and 7.10 (n.33) in Joint Standards, supra note 3, at pp. 23, 83.

Standard 7.8 states, “When scores are disaggregated and publicly reported for groups identified by characteristics

such as gender, ethnicity, age, language proficiency, or disability, cautionary statements should be included whenever

credible research reports that test scores may not have comparable meaning across these different groups.” Joint

Standards, supra note 3, at p. 83.

Standard 7.9 states, “When tests or assessments are proposed for use as instruments of social, educational, or

public policy, the test developers or users proposing the test should fully and accurately inform policy-makers of the

characteristics of the tests as well as any relevant and credible information that may be available concerning the

likely consequences of test use.” Joint Standards, supra note 3, at p. 83.

108 Standard 7.10 (n.33) in Joint Standards, supra note 3, at p. 83.

109 Standard 7.11 states, “When a construct can be measured in different ways that are approximately equal in their

degree of construct representation and freedom from construct-irrelevant variance, evidence of mean score differences

across relevant subgroups of examinees should be considered in deciding which test to use.” Joint Standards,

supra note 3, at p. 83.

110 Standard 7.5 (n.71) in Joint Standards, supra note 3, at p. 82.

Documentation of appropriate reporting and test use should be available. Reported data

should be clear and accurate, especially when there are high-stakes consequences for

students.107 When tests are used as part of decision-making that has high-stakes

consequences for students, evidence of mean score differences between relevant subgroups

should be examined, where feasible. When mean differences are found between

subgroups, investigations should be undertaken to determine that such differences are

not attributable to construct underrepresentation or construct irrelevant error.108 Evidence

about differences in mean scores and the significance of the validity errors should also be

considered when deciding which test to use.109 In using test results for purposes other than

selection, a test taker’s score should not be accepted as a reflection of standing on the

intended constructs without consideration of alternative explanations for the test taker’s

performance.110 Explanations might reflect limitations of the test, for instance construct

irrelevant factors may have significantly impacted the student’s score. Explanations may

also reflect schooling factors external to the test, for instance lack of instructional

opportunities.

The issue of feasibility in collecting validity evidence is discussed in a few of the standards

summarized above. In the comments associated with these standards, feasibility is generally

addressed in terms of adequate sample size, with continued operational use of a test as a

way of accumulating adequate numbers of subgroup results over administrations. When

credible research reports that results differ in meaning across subgroups, collecting separate

and parallel types of validity data verifies that the same knowledge and skills are being

measured for all groups of test takers. Particularly in high-stakes situations, it is important
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 33

111 The Comment to Standard 10.7 states, “In addition to modifying tests and test administration procedures for

people who have disabilities, evidence of validity for inferences drawn from these tests is needed. Validation is the

only way to amass knowledge about the usefulness of modified tests for people with disabilities. The costs of

obtaining validity evidence should be considered in light of the consequences of not having usable information

regarding the meanings of scores for people with disabilities. This standard is feasible in the limited circumstances

where a sufficient number of individuals with the same level or degree of a given disability is available.” Joint

Standards, supra note 3, at p. 107 (emphasis added).

112 Standard 2.11 states, “If there are generally accepted theoretical or empirical reasons for expecting that reliability

coefficients, standard errors of measurement, or test information functions will differ substantially for various

subpopulations, publishers should provide reliability data as soon as feasible for each major population for which

the test is recommended.” Joint Standards, supra note 3, at p. 34.

It should be noted that reliability estimates may differ simply because of limited variance within a group. This is not

a flaw in the test leading to unfairness, but rather a function of the statistical methodologies used in calculating the

estimates.

113 Standard 2.18 in Joint Standards, supra note 3, at p. 36.

114 See also Standard 1.19 and 13.9 (n.23) in Joint Standards, supra note 3, at pp. 22, 147.

Standard 1.19 states, “If a test is recommended for use in assigning persons to alternative treatments or is likely to

be so used, and if outcomes from those treatments can reasonably be compared on a common criterion, then,

whenever feasible, supporting evidence of differential outcomes should be provided.” Joint Standards, supra note

3, at p. 22.

that all feasibility considerations include the potential costs to students of using information

where the validity of the scores has not been verified.111

2. Fairness in Reliability

Fairness in reliability focuses on making sure that scores are stable and consistently accurate

for all groups of students. Two key standards address this issue. First, when there are

reasons for expecting that test reliability analyses might differ substantially for different

subpopulations, reliability data should be presented as soon as feasible for each major

population for whom the test is recommended.112 Second,“[w]hen significant variations

are permitted in test administration procedures, separate reliability analyses should be

provided for scores produced under each major variation if adequate sample sizes are

available.”113 Often, continued operational use of a test is a way to accumulate an adequate

sample size over administrations.

D. Cut Scores

The same principles regarding validity, reliability, and fairness apply generally to the

establishment and use of cut scores for the purpose of making high-stakes educational decisions.

Cut scores, also known as cut points or cutoff scores, are specific points on the test or scale

where test results are used to divide levels of knowledge, skill, or ability. Cut scores are used in

a variety of contexts, including decisions for placement purposes or for other specific outcomes,

such as graduation, promotion, or admissions.114 A cut score may divide the demonstration of
The Use of Tests as Part of High-Stakes Decision-Making for Students:

34 A Resource Guide For Educators and Policy-Makers

Where the results of the [cutscore]

setting process have highly

significant consequences, ... those

responsible for establishing

cutscores should be concerned that

the process...[is] clearly documented

and defensible.

Joint Standards, Introduction to

Chapter 4, p. 54.

115 See Joint Standards, supra note 3, pp. 9-16 (Chapter 1, Validity, discusses that the interpretation of all scores

should be an accurate representation of what is being measured).

116 Standard 4.20 in Joint Standards, supra note 3, at p. 60.

117 Standard 2.14 states, “Conditional standard errors of measurement should be reported at several score levels if

constancy cannot be assumed. Where cut scores are specified for selection or classification, the standard errors of

measurement should be reported in the vicinity of each cut score.” Joint Standards, supra note 3, at p. 35.

118 “Where the purpose of measurement is classification, some measurement errors are more serious than others.

An individual who is far above or far below the value established for pass/fail or for eligibility for a special program

can be mismeasured without serious consequences. Mismeasurment of examinees whose true scores are close to

the cut score is a more serious concern. . . . The term classification consistency or inter-rater agreement, rather than

reliability, would be used in discussions of consistency of classification. Adoption of such usage would make it clear

that the importance of an error of any given size depends on the proximity of the examinee’s score to the cut score.”

Joint Standards, supra note 3, at p. 30.

acceptable and unacceptable skills, as in

placement in gifted and talented programs

where students are accepted or rejected. There

may be multiple cut scores that identify

qualitatively distinct levels of performance. In

order to promote readability, the discussion

on cut scores presented here is meant to reflect

this complex topic in an accurate, but concise

and user-friendly way. Readers are

encouraged to review Chapter 4, Scales,

Norms, and Score Comparability, in the Joint

Standards, for additional, relevant information about cut scores particularly pages 53-54.

Many of the concepts regarding test validity apply to cut scores—that is, the cut points

themselves, like all scores, must be accurate representations of the knowledge and skills of

students.115 Further, “[w]hen feasible, cut scores defining categories with distinct substantive

interpretations should be established on the basis of sound empirical data concerning the

relation of test performance to relevant criteria.”116 Validity evidence should generally be

able to demonstrate that students above the cut score represent or demonstrate a

qualitatively greater degree or different type of skills and knowledge than those below the

cut score, whenever these types of inferences are made. In high-stakes situations, it is

important to examine the validity of the inferences that underlie the specific decisions

being made on the basis of the cut scores. In other words, what must be validated is the

specific use of the test based on how the scores of students above and below the cut score

are being interpreted.

Reliability of the cut scores is also important. The Joint Standards states that where cut scores

are specified for selection or placement, the degree of measurement error around each cut

score should be reported.117 Evidence should also indicate the misclassification rates, or

percentage of error in classifying students, that are likely to occur among students with

comparable knowledge and skills.118 This information should be available by group as soon
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 35

as feasible if there is a prior probability that the misclassification rates may differ substantially

by group.119 Misclassification of students above or below the cut points can result in both false

positive and false negative classifications.120 As an example of false negative misclassifaction

one might ask, what percentage of students who should be allowed to graduate would not be

allowed to do so because of error due to the test rather than differences in their actual knowledge

and skills? The Joint Standards states, “Adequate precision in regions of score scales where cut

points are established is prerequisite to reliable classification of examinees into categories.”121

There is no single right answer to the questions of when, where and how cut scores should be

set on a test with high-stakes consequences for students.122 Some experts suggest, however,

that multiple standard-setting methods of determining cut scores should be used when

determining a final cut score.123 Further, the reasonableness of the standard setting process

and the consequences for students should be clearly and specifically documented for a given

use.124 Both the Joint Standards and High Stakes repeatedly state that decisions should not be

made solely or automatically on the basis of a single test score, and that other relevant information

should be taken into account if it will enhance the overall validity of the decision.125

119 Standard 2.11 (n.112) in Joint Standards, supra note 3, at p. 34.

120 Joint Standards, supra note 3, at p. 30.

121 Joint Standards, supra note 3, at p. 59.

122 High Stakes, supra note 11, at p. 168.

123 High Stakes, supra note 11, at p. 169.

124 See Standard 4.19, 4.21 and their Comments in Joint Standards, supra note 3, at pp. 59-60; see also High

Stakes, supra note 11, at pp. 89-187 (Chapters 5, 6, and 7).

Standard 4.19 states, “When proposed score interpretations involve one or more cut scores, the rationale and

procedures used for establishing cut scores should be clearly documented.” Joint Standards, supra note 3, at p. 59.

Standard 4.21 states, “When cut scores defining pass-fail or proficiency categories are based on direct judgments

about the adequacy of item or test performances or performance levels, the judgmental process should be designed

so that judges can bring their knowledge and experience to bear in a reasonable way.” Joint Standards, supra note

3, at p. 60.

125 See High Stakes, supra note 11, at pp. 89-187 (Chapters 5, 6, and 7); Standard 13.7 (n.8) in Joint Standards,

supra note 3, at p. 146.
The Use of Tests as Part of High-Stakes Decision-Making for Students:

36 A Resource Guide For Educators and Policy-Makers

Test Measurement Principles:

Questions about Appropriate Test Use

In order to determine if a test is being used appropriately to make highstakes decisions about students, considerations about the context of the test

use need to be addressed, as well as the validity, reliability, and fairness of the

score interpretations from the current test being proposed.

1. What is the purpose for which the test is being used?

2. What information, besides the test, is being collected to inform this

purpose?

3. What are the particular propositions that need to be true to support the

inferences drawn from the test scores for a given use?

4. Based on how the test results are to be used, is there adequate evidence

of the propositions to document the validity of the inferences for students

taking the test? For example:

• Does the evidence support the proposition that the test measures the

specific knowledge and skills the test developers say that it measures?

• Does the evidence support the proposition that the interpretation of

the test scores is valid for the stated purpose for which the test is being

proposed?

• Does the evidence support the proposition that the interpretation of

the test scores is valid in the particular type of situation where the test

is to be administered?

• Does the evidence support the proposition that the interpretation of

the test scores is valid for the specific groups of students who are taking

the test?

5. Is there adequate evidence of reliability of the test scores for the proposed

use?

6. Is there adequate evidence of fairness in validity and reliability to

document that the test score inferences are accurate and meaningful for

all groups of students taking the test? That is:

• Does the evidence support the inference that the test is measuring

the same constructs for all groups of students?

• Does the evidence support that the scores do not systematically

underestimate or overestimate the knowledge or skills of members

of any particular group?

7. Is there adequate evidence that cutscores have been properly established

and that they will be used in ways that will provide accurate and

meaningful information for all test takers?
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 37

126 These are students who are learning English as a second language; the same population sometimes also is

referred to as English language learners.

127 See High Stakes, supra note 11, at pp. 7, 80.

128 See Joint Standards, supra note 3 at pp. 71-80, 91-97, 101-106 (Chapters 7, 9, and 10).

II. The Testing of All Students: Issues of Intervention

and Inclusion

All aspects of validity, reliability, fairness, and cut scores discussed above are applicable to

the measurement of knowledge and skills of all students, including limited English proficient

students126 and students with disabilities. This section addresses additional issues related

to accurately measuring the knowledge and skills of these two populations in selected

situations. Issues affecting limited English proficient and disabled students are addressed

separately below following discussion of general considerations about the selection and

use of accommodations.

Whenever tests are intended to evaluate the knowledge of skills of different groups of

students, ensuring that test score inferences accurately reflect the intended constructs for

all students is a complex task. It involves several aspects of test construction, pilot testing,

implementation, analysis, and reporting. For limited English proficient students and

students with disabilities, the appropriate inclusion of students from these groups in

validation and norming samples, and the meaningful inclusion of limited English proficient

and disability experts throughout the test development process, are necessary to ensure

suitable test quality for these groups of test takers.

The proper inclusion of diverse groups of students in the same academic achievement

testing program helps to ensure that high-stakes decisions are made on the basis of test

results that are as comparable as possible across all groups of test takers.127 If different tests

are used as part of the testing program, it is important to ensure that they measure the

same content standards. The appropriate inclusion of students can also help to ensure

that educational benefits attributable to the high-stakes decisions will be available to all.

In some cases, it is appropriate to test limited English proficient students and students with

disabilities under standardized conditions, as long as the evidence supports the validity of

the results in a given situation for these students. In other cases, the conditions may have

to be accommodated to assure that the inferences of the scores validly reflect the students’

mastery of the intended constructs.128 The use of multiple measures generally enhances

the accuracy of the educational decisions, and these measures can be used to confirm the

validity of the test results. The use of multiple measures is particularly relevant for limited

English proficient students and students with disabilities in cases where technical data are

in the process of being collected on the proper use of accommodations and the proper

interpretation of test results when testing conditions are accommodated.
The Use of Tests as Part of High-Stakes Decision-Making for Students:

38 A Resource Guide For Educators and Policy-Makers

A. General Considerations about Accommodations

Making similar inferences about scores from academic achievement tests for all test takers,

and making appropriate decisions when using these scores, requires accurately measuring

the same academic constructs (knowledge and skills in specific subject areas) across groups

and contexts. In measuring the knowledge and skills of limited English proficient students

and students with disabilities, it is particularly important that the tests actually measure the

intended knowledge and skills and not factors that are extraneous to the intended

construct. 129 For instance,

impaired visual capacity may

influence a student’s test score in

science when the student must

sight read a typical paper and

pencil science test. In measuring

science skills, the student’s sight

likely is not relevant to the

student’s knowledge of science.

Similarly, how well a limited

English proficient student reads

English may influence the student’s test score in mathematics when the student must read

the test. In this case, the student’s reading skills likely are not relevant when the skills of

mathematics computation are to be measured. The proper selection of accommodations

for individual students and the determination of technical quality associated with

accommodated test scores are complex and challenging issues that need to be addressed

by educators, policy-makers, and test developers.

Typically, accommodations to established conditions are found in three main phases of

testing: 1) the administration of tests, 2) how students are allowed to respond to the items,

and 3) the presentation of the tests (how the items are presented to the students on the test

instrument). Administration accommodations involve setting and timing, and can include

extended time to counteract the increased literacy demands for English language learners

or fatigue for a student with sensory disabilities. Response accommodations allow students

to demonstrate what they know in different ways, such as responding on a computer

rather than in a test booklet. Presentation accommodations can include format variations

such as fewer items per page, large print, and plain language editing procedures, which

use short sentences, common words, and active voice. There is wide variation in the

types of accommodations used across states and school districts. (Appendix C lists many

of the accommodations used in large-scale testing for limited English proficient students

and students with disabilities. The list is not meant to be exhaustive, and its use in this

document should not be seen as an endorsement of any specific accommodations. Rather,

the Appendix is meant to provide examples of the types of accommodations that are

being used with limited English proficient students and students with disabilities.)

129 This is known as construct irrelevance. See discussion supra Chapter 1 Part (I)(A)(3) (Sources of Validity Error);

Joint Standards, supra note 3, at pp. 173-174.

Standard 10.1

In testing individuals with disabilities, test

developers, test administrators, and test users

should take steps to ensure that the test score

inferences accurately reflect the intended

construct rather than any disabilities and their

associated characteristics extraneous to the intent

of the measurement.
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 39

130 See Standard 9.1 and 10.1 in Joint Standards, supra note 3, at pp. 97, 106; Messick, Validity, supra note 85.

Standard 9.1 states, “Testing practice should be designed to reduce threats to the reliability and validity of test score

inferences that may arise from language differences.” Joint Standards, supra note 3, at p. 97.

Standard 10.1 states, “In testing individuals with disabilities, test developers, test administrators, and test users

should take steps to ensure that the test score inferences accurately reflect the intended construct rather than any

disabilities and their associated characteristics extraneous to the intent of the measurement.” Joint Standards, supra

note 3, at p. 106.

131 E.g., Joint Standards, supra note 3, at pp. 91-97 (Chapter 9); High Stakes, supra note 11, at pp. 211-237

(Chapter 9); National Research Council, Improving America’s Schooling for Language Minority Children: A Research

Agenda (Diane August & Kenji Hakuta eds., 1997) (hereinafter Improving America’s Schooling for Language

Minority Children); Rebecca J. Kopriva, Council of Chief State School Officers, Ensuring Accuracy in Testing for

English Language Learners (2000) (hereinafter Kopriva, Ensuring Accuracy in Testing).

132 Improving America’s Schooling for Language Minority Children, supra note 131, at pp. 116-118.

Standard 9.10

Inferences about test takers’ general

language proficiency should be based

on tests that measure a range of

language features, and not on a single

linguistic skill.

Issues regarding the use of accommodations are complex. When the possible use of an

accommodation for a student is being considered, two questions should be examined:

1) What is being measured if conditions are accommodated? 2) What is being measured

if the conditions remain the same? The decision to use an accommodation or not should

be grounded in the ultimate goal of collecting test information that accurately and fairly

represents the knowledge and skills of the individual student on the intended constructs.

The overarching concern should be that test score inferences accurately reflect the intended

constructs rather than factors extraneous to the intent of the measurement.130

B. Testing of Limited English Proficient Students

The Joint Standards and several recent measurement publications discuss the population

of limited English proficient students and how test publishers and users have handled

inclusion in tests to date.131 This section briefly outlines principles derived from the Joint

Standards and these publications. It addresses two types of testing situations especially

relevant for limited English proficient students: the assessment of English language

proficiency and the assessment of academic educational achievement.

1. Assessing English Language Proficiency

Issues of validity, reliability, and fairness apply to tests and other relevant assessments

that measure English language proficiency. English language proficiency is typically

defined as proficiency in listening,

speaking, reading, and writing English.132

Assessments that measure English language

proficiency are generally used to make

decisions about who should receive English

language acquisition services, the type of

programs in which these students are

placed, and the progress of students in the
The Use of Tests as Part of High-Stakes Decision-Making for Students:

40 A Resource Guide For Educators and Policy-Makers

133 Standard 9.10 and Comment in Joint Standards, supra note 3, at pp. 99-100.

Standard 9.10 states, “Inferences about test takers’ general language proficiency should be based on tests that

measure a range of language features, and not on a single linguistic skill.” Joint Standards, supra note 3, at pp. 99-

100.

134 Joint Standards, supra note 3, at pp. 91-97.

135 See Joint Standards, supra note 3, at pp. 91-100 (Chapter 9); Improving Schooling for Language Minority

Children, supra note 131; Kopriva, Ensuring Accuracy in Testing, supra note 131, at pp. 9-11 (Introduction).

appropriate programs. They are also used to evaluate the English proficiency of students

when exiting from a program or services, to ensure that they can successfully participate

in the regular school curriculum. In making decisions about which tests are appropriate,

it is particularly important to make sure that the tests accurately and completely reflect the

intended English language proficiency constructs so that the students are not misclassified.

It is generally accepted that an evaluation of a range of communicative abilities will typically

need to be assessed when placement decisions are being made.133

2. Assessing the Academic Educational Achievement of Limited English

Proficient Students

Several factors typically affect how well the educational achievement of limited English

proficient students is measured on standardized academic achievement tests. Technical

issues associated with developing meaningful achievement tests for limited English

proficient students can be complex and challenging. For all test takers, any test that employs

written or oral skills in English or in another language is, in part, a measure of those skills

in the particular language. Test use with individuals who have not sufficiently acquired

the literacy or fluency skills in the language of the test may introduce construct-irrelevant

components to the testing process. Further, issues related to differences in the experiences

of students may substantially affect how test items are interpreted by different groups of

students. In both instances, test scores may not accurately reflect the qualities and

competencies that the test intends to measure.134

a. Background Factors for Limited English Proficient Students

The background factors particularly salient in ensuring accuracy in testing for students

with limited English proficiency tend to relate to language proficiency, culture, and

schooling.135

Limited English proficient students often bring varying levels of English and homelanguage fluency and literacy skills to the testing situation. These students may be adept

in conversing orally in their home language, but unless they have had formal schooling in

their home language, they may not have a corresponding level of literacy. Also, while

students with limited English proficiency may acquire a degree of fluency in English, literacy

in English for many students comes later. To add to the complexity, proficiency in fluency

and literacy in either the home language or English involves both social and academic

components. Thus, a student may be able to write a well-organized social letter in his or
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 41

136 Improving America’s Schooling for Language Minority Children, supra note 131, at pp. 113-137.

137 Improving America’s Schooling for Language Minority Children, supra note 131, at pp. 113-137.

138 Kopriva, Ensuring Accuracy in Testing, supra note 131, at pp. 29-48, 61-70, 95-98.

her home language, and may not be able to orally explain adequately in that language

how to solve a mathematics problem that includes the knowledge of concepts and words

endemic to the field of mathematics. The same phenomena may occur in English as

well.136

Therefore, in determining how to effectively measure the academic knowledge and skills

of limited English proficient students, educators and policy-makers should consider how

to minimize the influence of literacy issues, except when these constructs are explicitly

being measured. The levels of proficiency of limited English proficient students in their

home language and in English, as well as the language of instruction, are important in

determining in which language an achievement test should be administered, and which

accommodations to standardized testing conditions, if any, might be most useful for which

students.137

Additionally, diverse cultural and other background experiences, including variations in amount,

type and location (home country and United States) of formal elementary and secondary

schooling, as well as interrupted and multi-location schooling of students (of the type frequently

experienced by children of migrant workers), affect language literacy, the contextual content of

items, and the academic foundational knowledge base that can be assumed in appropriately

interpreting the results of educational achievement tests. The format and procedures involved

in testing can also affect accuracy in test scores, particularly if the test practices differ substantially

from ongoing instructional practices in classrooms, including which accommodations are used

in the classroom and how they are used.138

Factors Related to Accurately Testing Limited English Proficient Students

Language Proficiency

• The student’s level of oral and written proficiency in English

• The student’s proficiency in his or her home language

• The language of instruction

Cultural Issues

• Background experiences

• Perceptions of prior experiences

• Value systems

Schooling Issues

• The amount of formal elementary and secondary schooling in the

student’s home country, if applicable, and in U.S. schools

• Consistency of schooling

• Instructional practices in the classroom
The Use of Tests as Part of High-Stakes Decision-Making for Students:

42 A Resource Guide For Educators and Policy-Makers

139 Standard 9.1 in Joint Standards, supra note 3, at p. 97.

140 Standard 9.2 states, “When credible research evidence reports that test scores differ in meaning across subgroups

of linguistically diverse test takers, then to the extent feasible, test developers should collect for each linguistic

subgroup studied the same form of validity evidence collected for the examinee population as a whole.” Joint

Standards, supra note 3, at p. 97.

141 Standard 9.6 in Joint Standards, supra note 3, at p. 99.

142 Standard 9.3 in Joint Standards, supra note 3, at p. 98.

143 See Standard 9.4 and 9.5 in Joint Standards, supra note 3, at p. 98.

Standard 9.4 states, “Linguistic modifications recommended by test publishers, as well as the rationale for the

modifications, should be described in detail in the test manual.” Joint Standards, supra note 3, at p. 98.

Standard 9.5 states, “When there is credible evidence of score comparability across regular and modified tests or

administrations, no flag should be attached to a score. When such evidence is lacking, specific information about

the nature of the modification should be provided, if permitted by law, to assist test users properly to interpret and

act on test scores.” Joint Standards, supra note 3, at p. 98.

144 See Standard 9.7 and 9.11 in Joint Standards, supra note 3, at pp. 99-100.

Standard 9.7 states, “When a test is translated from one language to another, the methods used in establishing the

adequacy of the translation should be described, and empirical and logical evidence should be provided for score

reliability and the validity of the translated test’s score inferences for the uses intended in the linguistic groups to be

tested.” Joint Standards, supra note 3, at p. 99.

Standard 9.11 states, “When an interpretation is used in testing, the interpreter should be fluent in both the

language of the test and the examinee’s native language, should have expertise in translating, and should have a

basic understanding of the assessment process.” Joint Standards, supra note 3, at p. 100.

b. Including Limited English Proficient Students in Large-Scale Standardized

Achievement Tests

The Joint Standards recognizes the complexity of developing educational achievement

tests that are appropriate for a range of test takers, including those who are limited English

proficient. Overall, “testing practice should be designed to reduce threats to the reliability

and validity of test score inferences that may arise from language differences.”139 When

credible research evidence reports that scores may differ in meaning across subgroups of

linguistically diverse test takers, then, to the extent feasible, the same form of validity

evidence should be collected for each relevant subgroup as for the examinee population

as a whole.140 The Joint Standards states, “When a test is recommended for use with

linguistically diverse test takers, test developers and publishers should provide the

information necessary for appropriate test use and interpretation. ”141 Furthermore, “when

testing an examinee proficient intwo or more languages for which the test is available, the

examinee’s relative language proficiencies should be determined. The test generally should

be administered in the test taker’s most proficient language, unless proficiency in the less

proficient language is part of the assessment.”142 Recommended accommodations should

be used appropriately and described in detail in the test manual;143 translation methods

and interpreter expertise should be clearly described;144 evidence of test comparability

should be reported when multiple language versions of a test are intended to be
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 43

145 Standard 9.9 states “When multiple language versions of a test are intended to be comparable, test developers

should report evidence of test comparability.” Joint Standards, supra note 3, at p. 99.

146 Standard 9.7 (n.144) and Comment in Joint Standards, supra note 3, at p. 99.

The Comment to Standard 9.7 states “[f]or example, if a test is translated into Spanish for use with Mexican, Puerto

Rican, Cuban, Central American, and Spanish populations, score reliability and the validity of the test score

inferences should be established with members of each of these groups separately where feasible. In addition, the

test translation methods used need to be described in detail.” Joint Standards, supra note 3, at p. 99.

147 Kopriva, Ensuring Accuracy in Testing, supra note 131, at pp. 49-66, 71-76 (discussing which accommodations

might be most beneficial for students with various background factors).

148 President’s Advisory Commission on Educational Excellence for Hispanic Americans, Testing Hispanic Students

in the United States: Technical and Policy Issues, Executive Summary, p. 8 (2000).

comparable;145 and evidence of the score reliability and the validity of the translated test’s

score inferences should be provided for the intended uses and linguistic groups.146

Providing accommodations to established testing conditions for some students with limited

English proficiency may be appropriate when their use would yield the most valid scores

on the intended academic achievement constructs. Deciding which accommodations to

use for which students usually involves an understanding of which construct irrelevant

background factors would substantially influence the measurement of intended knowledge

and skills for individual students, and if the accommodations would enhance the validity

of the test score interpretations for these students.147 In collecting evidence to support the

technical quality of a test for limited English proficient students, the accumulation of data

may need to occur over several test administrations to ensure sufficient sample sizes.

Educators and policy-makers need to understand that the proper use of accommodations

for limited English proficient students and the determination of technical quality are complex

and challenging endeavors.

Appendix C lists various test presentation, administration, and response accommodations

that states and districts generally employ when testing limited English proficient students.

Examples of accommodations in the presentation of the test include editing text so the

items are in plain language, or providing page formats which minimize confusion by limiting

use of columns and the number of items per page. Presenting the test in the student’s

native language is an accommodation to a test written in English when the same constructs

are being measured on both the English- and native-language versions. It is essential that

translations accurately convey the meaning of the test items; poor translations can prove

more harmful than helpful.148 Administration accommodations include extending the length

of the testing period, permitting breaks, administering tests in small groups or in separate

rooms, and allowing English or native-language glossaries or dictionaries as appropriate.

Response accommodations include oral response and permitting students to respond in

their native language.
The Use of Tests as Part of High-Stakes Decision-Making for Students:

44 A Resource Guide For Educators and Policy-Makers

149 E.g., Joint Standards, supra note 3, at pp. 101-106 (Chapter 10); High Stakes, supra note 11, at pp. 188-210

(Chapter 8); National Research Council, Educating One and All: Students with Disabilities and Standards-Based

Reform (Lorraine M. McDonnell, Margaret J. McLaughlin & Patricia Morison eds., 1997) (hereinafter Educating One

and All); Martha Thurlow, Judy Elliott & Jim Ysseldyke, Testing Students with Disabilities (1998) (hereinafter

Thurlow et al., Testing Students with Disabilities).

150 Joint Standards, supra note 3, at pp. 101-106, 119-145 (Chapters 10, 12, and 13); High Stakes, supra note 11,

at pp. 13-28 (Chapter 1).

151 See Standard 7.6 (n.89) in Joint Standards, supra note 3, at p. 82.

Standard 10.12

In testing individuals with disabilities

for diagnostic and intervention

purposes, the test should not be used

as the sole indicator of the test taker’s

functioning. Instead, multiple sources

of information should be used.

C. Testing of Students with Disabilities

The Joint Standards and several recent measurement publications discuss the population

of students with disabilities and how test publishers and users have handled inclusion in

tests to date.149 This section briefly outlines principles derived from the Joint Standards

and these publications. It addresses three types of testing situations especially relevant for

students with disabilities: tests used for diagnostic and intervention purposes, the assessment

of academic educational achievement, and alternate assessments for elementary and

secondary school students with disabilities who cannot participate in districtwide academic

achievement tests.

1. Tests Used for Diagnostic and Intervention Purposes

All issues of validity, reliability, and fairness apply to tests and other assessments used to

make diagnostic and intervention decisions for students with disabilities. Tests that yield

diagnostic information typically focus in great detail on identifying the specific challenges

and strengths of a student.150 These diagnostic tests are often administered in one-to-one

situations (test taker and examiner) rather than in a group situation. In many cases, they

have been designed with standardized

adaptations to fit the needs of individual

examinees. In making decisions about which

tests are appropriate to use, it is important to

make sure that the tests accurately and

completely reflect the intended constructs, so

that the interventions are appropriate and

beneficial for the individual students. Proper

analyses should be conducted to yield correct

interpretations of results when differential

prediction for different groups is likely.151

2. Assessing the Academic Educational Achievement of Students with

Disabilities

Several factors affect how well the educational achievement of students with disabilities is

measured on standardized academic achievement tests. Test scores should accurately

measure the students’ knowledge and skills in academic achievement rather than factors
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 45

152 Standard 10.1 (n.130) in Joint Standards, supra note 3, at p. 106.

153 Standard 10.2 states, “ People who make decisions about accommodations and test modification for individuals

with disabilities should be knowledgeable of existing research on the effects of the disabilities in question on test

performance. Those who modify tests should also have access to psychometric expertise for so doing. Joint

Standards, supra note 3, at p. 106.

154 See Joint Standards, supra note 3, at pp. 101-108 (Chapter 10); Educating One and All, supra note 149.

155 Thurlow et al., Testing Students with Disabilities, supra note 149.

156 See Standard 9.2 (n.140) and 9.10 (n.133) in Joint Standards, supra note 3, at pp. 97, 99-100.

irrelevant to the intended constructs of the test.152 The technical issues associated with

developing meaningful achievement tests for students with disabilities can be complex

and challenging. Under federal law, students with disabilities must be included in statewide

or districtwide assessment programs and provided with appropriate accommodations if

necessary. Guidance about testing elementary and secondary school students with

disabilities is addressed by the individualized education program (IEP) process or other

applicable evaluation procedures. The IEP or Section 504 plan addresses how a student

should be tested, and identifies testing accommodations that would be appropriate for the

individual student. The Individuals with Disabilities Education Act (IDEA) also requires

state or local education agencies to develop guidelines for the relatively small number of

students with disabilities who cannot take part in statewide or districtwide tests to participate

in alternate assessments. The Joint Standards emphasizes that people who make decisions

about accommodations for students with disabilities should be knowledgeable about the

effects of the disabilities on test performance.153

a. Background Factors for Students with Disabilities

The background factors particularly important to students with disabilities are generally

related to the nature of the disabilities or to the schooling experiences of these students.154

Within any disability category, the type, number, and severity of impairments vary greatly.155

For instance, some students with learning disabilities have a processing disability in only

one subject, such as mathematics, while others experience accessing, retrieving, and

processing impairments that affect a broad number of school subjects and contexts. For

many of these students, one or more of the impairments may be relatively mild, while for

others one or more can be significant. Further, different types of disabilities yield significantly

different constellations of issues. For instance, the considerations surrounding students

with hearing impairments or deafness may overlap significantly with limited English

proficient students in some ways and with other students with disabilities in other respects.

The Joint Standards discusses provisions regarding the testing and validation of tests for

limited English proficient students that apply to students who have hearing impairments

or deafness, as well.156 This complexity poses a challenge not only to educators, but also

to test administrators and developers. In general, in determining how to use academic

tests appropriately for students with disabilities, educators and policy-makers should

consider how to minimize the influence of the impairments in measuring the intended

constructs.
The Use of Tests as Part of High-Stakes Decision-Making for Students:

46 A Resource Guide For Educators and Policy-Makers

157 Educating One and All, supra note 149, at Chapter 3.

158 Educating One and All, supra note 149, at Chapter 5.

Educating One and All explains that the schooling experiences of students with disabilities

vary greatly as a function of their disability, the severity of impairments, and expectations

of their capabilities.157 Two sets of educational experiences, in particular, affect how

educators and policy-makers accommodate tests and use them appropriately for this

population. First, the IEP teams identify individual educational plans for students with

disabilities that have different degrees of overlap with the general education curricula.

This alignment will affect what opportunities students with disabilities will have to master

the material being tested on the schoolwide academic achievement tests. Second, the IEP

team also recommends appropriate accommodations for students, and these

accommodations are usually consistent with classroom accommodation techniques.

However, while special educators have a long history of accommodating instruction and

evaluation to fit student strengths, not all the instructional or testing practices in the classroom

are appropriate in large-scale testing. Additionally, some students may not have been

exposed routinely to the types of accommodations that would be possible in large-scale

testing.158

b. Including Students with Disabilities in Large-Scale

Standardized Achievement Tests

The Joint Standards recognizes the complexity of developing educational achievement

tests that are appropriate for a range of test takers, including students with disabilities. The

interpretation of the scores of students with disabilities should accurately and fairly reflect

the academic knowledge, skills, or abilities that the test intends to measure. The

interpretation should not be confounded by those challenges students face that are

Factors Related to Accurately Testing Students with Disabilities

Disability Issues

• Types of impairments

• Severity of impairments

Schooling Experiences

• Overlap of individualized educational goals and general education

curricula in elementary and secondary schooling

• Pace of schooling

• Instructional practices in the classroom
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 47

159 See Standard 10.1 (n.130) and 10.10 in Joint Standards, supra note 3, at pp. 106, 107-108.

Standard 10.10 states, “Any test modifications adopted should be appropriate for the individual test taker, while

maintaining all feasible standardized features. A test professional needs to consider reasonably available information

about each test taker’s experiences, characteristics, and capabilities that might impact test performance, and document

the grounds for the modification.” Joint Standards, supra note 3, at pp. 107-108.

160 Several standards discuss the appropriate types of validity evidence, including Standards 10.3, 10.5, 10.6, 10.7,

10.8, and 10.11. Because of the low-incidence nature of several of the disability groups, such as hearing loss, vision

loss, or concomitant hearing and vision loss, especially when different severity levels and combinations of impairments

are considered, this type of evidence will probably need to be accumulated over time in order to have a large

enough sample size.

Standard 10.3 states, “Where feasible, tests that have been modified for use with individuals with disabilities should

be pilot tested on individuals who have similar disabilities to investigate the appropriateness and feasibility of the

modifications.” Joint Standards, supra note 3, at p. 106.

Standard 10.5 states, “Technical material and manuals that accompany modified tests should include a careful

statement of the steps taken to modify the test to alert users to changes that are likely to alter the validity of inferences

drawn from the test scores.” Joint Standards, supra note 3, at p. 106.

Standard 10.6 states, “If a test developer recommends specific time limits for people with disabilities, empirical

procedures should be used, whenever possible, to establish time limits for modified forms of timed tests rather than

simply allowing test takers with disabilities a multiple of the standard time. When possible, fatigue should be

investigated as a potentially important factor when time limits are extended.” Joint Standards, supra note 3, at p.

107.

Standard 10.7 states, “When sample sizes permit, the validity of inferences made from test scores and the reliability

of scores on tests administered to individuals with various disabilities should be investigated and reported by the

agency or publisher that makes the modification. Such investigations should examine the effects of modifications

made for people with various disabilities on resulting scores, as well as the effects of administering standard

unmodified tests to them.” Joint Standards, supra note 3, at p. 107.

Standard 10.8 states, “Those responsible for decisions about test use with potential test takers who may need or

may request specific accommodations should (a) possess the information necessary to make an appropriate selection

of measures, (b) have current information regarding the availability of modified forms of the test in question, (c)

inform individuals, when appropriate, about the existence of modified forms, and (d) make these forms available to

test takers when appropriate and feasible.” Joint Standards, supra note 3, at p. 107.

Standard 10.11 states, “When there is credible evidence of score comparability across regular and modified

administrations, no flag should be attached to a score. When such evidence is lacking, specific information about the

nature of the modification should be provided, if permitted by law, to assist test users properly to interpret and act

on test scores.” Joint Standards, supra note 3, at p. 108.

161 See Comment to Standard 10.7 (n.111) in Joint Standards, supra note 3, at p. 106.

extraneous to the intent of the measurement.159 Rather, validity evidence should document

that the inferences of the scores of students with disabilities are accurate. Pilot testing and

other technical investigations should be conducted where feasible to ensure the validity

of the test inferences when accommodations have been allowed.160 While, feasibility is a

consideration, the Joint Standards comments that “the costs of obtaining validity evidence

should be considered in light of the consequences of not having usable information

regarding the meanings of scores for people with disabilities.”161
The Use of Tests as Part of High-Stakes Decision-Making for Students:

48 A Resource Guide For Educators and Policy-Makers

162 Thurlow et al., Testing Students with Disabilities, supra note 149, for a discussion of which accommodations

might be most beneficial for students with various impairments and other background factors.

163 The IDEA requires use of alternate assessments in certain areas. See 34 C.F.R. § 300.138. These assessments

may or may not be used in decisions that have high-stakes consequences for students.

164 See Educating One and All, supra note 149, at Chapter 5, and Thurlow et al., Testing Students with Disabilities,

supra note 149, for a discussion of the issues and processes involved in developing and implementing alternate

assessments.

Providing accommodations to established testing conditions for some students with

disabilities may be appropriate when their use would yield the most valid scores on the

intended academic achievement constructs. Deciding which accommodations to use for

which students usually involves an understanding of which construct irrelevant background

factors would substantially influence the measurement of intended knowledge and skills

for individual students, and if the accommodations would enhance the validity of the test

score interpretations for these students.162 In collecting evidence to support the technical

quality of the test results for students with disabilities, the accumulation of data may need

to occur over several administrations to ensure sufficient sample sizes. Educators and

policy-makers need to understand that the proper use of accommodations for students

with disabilities and the determination of technical quality are complex and challenging

endeavors.

Appendix C lists various presentation, administration, and response accommodations that

states and districts generally employ when testing students with disabilities. Examples of

presentation accommodations are the use of Braille, large print, oral reading, or providing

page formats that minimize confusion by limiting use of columns and the number of items

per page. Administration accommodations in setting include allowing students to take

the test at home or in a small group, and accommodations in timing include extended

time and frequent breaks. Variations in response formats include allowing students to

respond orally, point, or use a computer.

3. Alternate Assessments

Alternate assessments are assessments for those elementary and secondary school students

with disabilities who cannot participate in state or districtwide standardized assessments,

even with the use of appropriate accommodations and modifications.163 For the constructs

being measured, the considerations with respect to validity, reliability, and fairness apply

to alternate assessments, as well. Appropriate content needs to be identified, and

procedures need to be designed to ensure technical rigor.164 In addition, evidence should

show that the test measures the knowledge and skills it intends to measure, and that the

measurement is a valid reflection of mastery in a range of contextual situations.
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 49

165 Title VI prohibits discrimination on the basis of race, color and national origin by recipients of federal financial

assistance. The U.S. Department of Education’s regulation implementing Title VI is found at 34 C.F.R. Part 100. Title

IX prohibits discrimination on the basis of sex by recipients of federal financial assistance. The U.S. Department of

Education’s regulation implementing Title IX is found at 34 C.F.R. Part 106. Section 504 prohibits discrimination on

the basis of disability by recipients of federal financial assistance. The U.S. Department of Education’s regulation

implementing Section 504 is found at 34 C.F.R. Part 104. Title II prohibits discrimination on the basis of disability

by public entities, regardless of whether they receive federal funding. The U.S. Department of Justice’s regulation

implementing Title II is found at 28 C.F.R. Part 35.

166 Consistent with this approach, court decisions are not cited if the case is still on appeal or the time to request an

appeal has not ended.

CHAPTER 2: Legal Principles

It is important for educators and policy-makers to understand the test measurement

principles and the legal principles that will enable them to ask informed questions and

make sound decisions regarding the use of tests for high-stakes purposes. The goal of this

chapter is to explain the legal principles that apply to educational testing.

The primary focus of this chapter is four federal nondiscrimination laws, enacted by

Congress, and their implementing regulations: Title VI of the Civil Rights Act of 1964

(Title VI), Title IX of the Education Amendments of 1972 (Title IX), Section 504 of the

Rehabilitation Act of 1973 (Section 504), and Title II of the Americans with Disabilities

Act of 1990 (Title II).165 Within the U.S. Department of Education, the Office for Civil

Rights has responsibility for enforcing the requirements of these four statutes and their

implementing regulations. Although the Office for Civil Rights does not enforce federal

constitutional provisions, an overview of these constitutional principles, including under

the Fifth and Fourteenth Amendments of the U.S. Constitution, has also been included for

informational purposes because of their importance to sound test use. The discussion of

legal principles in this chapter is intended to reflect existing legal principles and does not

establish new requirements.166

Some of the issues that have been considered by federal courts in assessing the legality

of specific testing practices for making high-stakes decisions include:

• The use of an educational test for a purpose for which the test was not designed or

validated;167

• The use of a test score as the sole criterion for the educational decision;168

• The nature and quality of the opportunity provided to students to master required

content, including whether classroom instruction includes the material covered

by a test administered to determine student achievement;169

• The significance of any fairness problems identified, including evidence of

differential prediction of a criterion and possible cultural biases in the test or in

test items;170 and

• The educational basis for establishing passing or cut-off scores.171
The Use of Tests as Part of High-Stakes Decision-Making for Students:

50 A Resource Guide For Educators and Policy-Makers

167

 See Sharif v. New York State Educ. Dep’t., 709 F. Supp. 345, 354-55, 364 (S.D.N.Y. 1989) (in granting a motion

for preliminary injunction, where girls received comparatively lower scores than boys, court found that the state’s

use of SAT scores as the sole basis for decisions awarding college scholarships intended to reward high school

achievement was not educationally justified for this purpose in that the SAT had been designed as an aptitude test

to predict college success and was not designed or validated to measure past high school achievement).

168 See id. at 364; see also United States v. Fordice, 505 U.S. 717, 735-39 (1992) (holding that the state’s reliance

on minimum ACT scores was constitutionally suspect where the ACT requirement was originally adopted for

discriminatory purposes, the current requirement was traceable to that decision and continued to have segregative

effects, and the state failed to show that the “ACT-only” admissions standard was not susceptible to elimination

without eroding sound educational policy, and recognizing that “[a]nother constitutionally problematic aspect of

the state’s use of the ACT test scores is its policy of denying automatic admission if an applicant fails to earn the

minimum ACT score specified for the particular institution, without also resorting to the applicant’s high school

grades as an additional factor in predicting college performance.”); GI Forum Image De Tejas v. Texas Education

Agency, 87 F. Supp. 2d 667 (W.D. Tex. 2000) (upholding the use of Texas Assessment of Academic Skills examination

as a requirement for high school graduation where the court found that the test was strongly correlated to the

material actually taught in the classroom; minority students received an equal opportunity to learn the items

presented on the test; the test had been extensively validated as a tool for measuring legislatively established

minimum skills as a requisite for graduation; and multiple opportunities were provided to each student to pass the

examination in conjunction with state mandated remediation targeted to the student's deficiency areas).

169 See Lau v. Nichols, 414 U.S. 563, 566-69 (1974) (finding a violation of the Title VI regulations where limited

English proficient students were taught only in English and not provided any special assistance needed to meet

English language proficiency standards required by the state for a high school diploma); see also Debra P. v.

Turlington, 644 F.2d 397, 406-08 (5th Cir. 1981) (holding that use of a graduation test that covered material that

had not been taught in class would violate the due process and equal protection clauses and that, under the

circumstances of the case, immediate use of the diploma sanction for test failure would punish black students for

deficiencies created by an illegally segregated school system which had provided them with inferior physical

structures, course offerings, instructional materials, and equipment).

170 See Larry P. v. Riles, 793 F.2d 969, 980-81, 983 (9th Cir. 1984) (finding that IQ tests the state used had not been

validated for use as the sole means for determining that black children should be placed in classes for educable

mentally retarded students); Sharif, 709 F. Supp. at 354 (observing that the SAT under-predicts success for female

college freshmen as compared with males); see also Parents in Action on Special Educ. v. Hannon, 506 F. Supp.

831, 836-37 (N.D. Ill. 1980) (court’s analysis of items on I.Q. test found only minimal amount of cultural bias not

resulting in erroneous mental retardation diagnoses given other information considered in process).

171 See Groves v. Alabama State Bd. of Educ, 776 F. Supp. 1518, 1530-31 (M.D. Ala. 1991) (finding test required

for admission to undergraduate teacher training program would not be educationally justified if the passing score

is not itself a valid measure of the minimal ability necessary to become a teacher); Richardson v. Lamar County Bd.

of Educ., 729 F. Supp. 806, 823-25 (M.D. Ala. 1989) (evidence revealed that cut-off scores had not been set

through a well-conceived, systematic process nor could the scores be characterized as reflecting the good faith

exercise of professional judgment), aff’d sub nom., Richardson v. Alabama State Bd. of Educ., 935 F.2d 1240 (11th

Cir. 1991).

I. Discrimination Under Federal Statutes and

Regulations

Congress has enacted four statutes prohibiting discrimination based on race, color, national

origin, sex, and disability in elementary and secondary schools, colleges, and universities.

Title VI prohibits discrimination based on race, color, or national origin; Title IX prohibits

discrimination based on sex; and Section 504 and Title II of the Americans with Disabilities

Act (ADA) prohibit discrimination based on disability. Title VI, Title IX, and Section 504

apply to all educational institutions that receive federal funds. Title II of the ADA applies
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 51

172 OCR enforces five nondiscrimination statutes, Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq.

(2000); Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq. (1999); Section 504 of the

Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794 (1999); Title II of the Americans with Disabilities Act of

1990, 42 U.S.C. §§ 12131 et seq. (1995 & Supp. 1999); and the Age Discrimination Act of 1975, as amended, 42

U.S.C. §§ 6101 et. seq. (1995 & Supp. 1999). Regulations issued by the United States Department of Education

implementing Title VI, Title IX, and Section 504, respectively, can be found at 34 C.F.R. Part 100, 34 C.F.R. Part 106,

and 34 C.F.R. Part 104. These regulations can be found on OCR’s web site at www.ed.gov/offices/OCR. Regulations

implementing Title II of the ADA can be found at 28 C.F.R. Part 35. Title III of the ADA, which is enforced by the U.S.

Department of Justice, prohibits discrimination in public accommodations by private entities, including schools.

Religious entities operated by religious organizations are exempt from Title III.

173 The United States Supreme Court has held that “Title VI itself directly reached only instances of intentional

discrimination . . . [but that] actions having an unjustifiable disparate impact on minorities could be addressed

through agency regulations designed to implement the purposes of Title VI.” Alexander v. Choate, 439 U.S. 287,

295 (1985), discussing Guardians Ass’n v. City Service Comm’n of N.Y., 403 U.S. 582 (1983). The United States

Supreme Court has never expressly ruled on whether Section 504, Title II and Title IX statutes prohibit not only

intentional discrimination, but, unlike Title VI, prohibit disparate impact discrimination as well. See, e.g., Choate,

409 U.S. at 294-97 & n.11 (observing that Congress might have intended the Section 504 statute itself to prohibit

disparate impact discrimination). Section 504 and Title II require reasonable modifications where necessary to

enable persons with disabilities to participate in or enjoy the benefits of public services. Regardless, the regulations

implementing Section 504, Title II, and Title IX, like the Title VI regulation, explicitly prohibit actions having

discriminatory effects as well as actions that are intentionally discriminatory.

174 34 C.F.R. § 100.3(b)(2) (Title VI); 34 C.F.R. §§ 106.21(b)(2), 106.36(b), 106.52 (Title IX); 34 C.F.R. § 104.4(b)(4)(i)

(Section 504); 28 C.F.R. § 35.130(b)(3) (Title II).

The authority of federal agencies to issue regulations with an “effects” standard has been consistently acknowledged

by United States Supreme Court decisions and applied by lower federal courts addressing claims of discrimination

in education. See, e.g., Choate, 469 U.S. at 289-300 (1985); Guardians Ass’n, 463 U.S. at 584-93; Lau, 414 U.S.

at 568; see also Memorandum from the Attorney General for Heads of Departments and Agencies that Provide

Federal Financial Assistance, Use of the Disparate Impact Standard in Administrative Regulations under Title VI of

the Civil Rights Act of 1964 (July 14, 1994).

175 Intentional racial discrimination is a violation of both the Fourteenth Amendment to the United States Constitution

and federal civil rights statutes in cases where evidence demonstrates that an action such as the use of a test for highstakes purposes is motivated by an intent to discriminate. See Elston v. Talladega County Bd. of Educ., 997 F.2d

1394, 1406 (11th Cir. 1993). As explained further in this section, the regulations promulgated under the federal

civil rights statutes prohibit the use of neutral criteria having disparate effects unless the criteria are educationally

justified. See Guardians Ass’n, 463 U.S. at 598.

to public entities, including public school districts and state colleges and universities.172

The Title VI, Title IX, Section 504, and Title II statutes and their implementing regulations

as well as the equal protection clause of the Fourteenth Amendment to the United States

Constitution, prohibit intentional discrimination, based on race, national origin, sex, or

disability.173 In addition, the regulations that implement Title VI, Title IX, Section 504 and

Title II prohibit policies or practices that have a discriminatory disparate impact on students

based on their race, national origin, sex, or disability.174

This section describes two central analytical frameworks for examining allegations of

discrimination as set forth in federal nondiscrimination regulations: different treatment

and disparate impact.175 It also includes a further discussion of legal principles that apply

specifically to students with limited English proficiency and to students with disabilities.
The Use of Tests as Part of High-Stakes Decision-Making for Students:

52 A Resource Guide For Educators and Policy-Makers

176 For example, under the Fourteenth Amendment and Title VI, different treatment based on race or ethnicty is

permitted only when such action is narrowly tailored to further a compelling state interest. See Adarand Constructors,

Inc., v. Pena, 515 U.S. 200 (1995); Richmond v. Croson, 488 U.S. 469 (1989); Regents of the Univ. of Cal. v.

Bakke, 438 U.S. 265 (1978).

177 People Who Care v. Rockford Bd. of Educ., 851 F. Supp. 905, 958-1001 (N.D. Ill. 1994), remedial order rev’d,

in part, 111 F.3d 528 (7th Cir. 1997). On appeal, the Seventh Circuit Court of Appeals stated that the appropriate

remedy based on the facts in the case was to require the district to use objective, non-racial criteria to assign students

to classes, rather than abolishing the district’s tracking system. People Who Care, 111 F.3d at 536.

178 Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526, 538 (1979) (quoting Green v. County School Bd., 391 U.S.

430, 439 (1968)).

179 See Debra P. v. Turlington, 644 F.2d 397, 407 (5th Cir. 1981) (“[Defendants] failed to demonstrate either that the

disproportionate failure [rate] of blacks was not due to the present effects of past intentional segregation or, that as

presently used, the diploma section was necessary [in order] to remedy those effects.”); McNeal v. Tate County Sch.

Dist., 508 F.2d 1017, 1020 (5th Cir. 1975) (ability grouping method that causes segregation may nonetheless be

used “if the school district can demonstrate that its assignment method is not based on the present results of past

segregation or that the method of assignment will remedy such effects through better educational opportunities”);

see also United States v. Fordice, 505 U.S. 717, 731 (1992) (“If the State [university system] perpetuates policies

and practices traceable to its prior system that continue to have segregative effects . . . and such policies are without

sound educational justification and can be practically eliminated, the State has not satisfied its burden of proving

that it has dismantled its prior system.”); Cf. GI Forum v. Texas Educ. Agency, 87 F. Supp. 2d 667, 673, 684 (W.D.

Tex. 2000) (the court concluded, based on the facts presented, that the test seeks to identify inequities and address

them; the state had ensured that the exam is strongly correlated to material actually taught in the classroom; remedial

efforts, on balance, are largely successful; and minority students have continued to narrow the passing gap).

A. Different Treatment

Under federal law, policies and practices generally must be applied consistently to similarly

situated individuals or groups, regardless of their race, national origin, sex, or disability.176

For example, a federal court concluded that a school district had intentionally treated

students differently on the basis of race where minority students whose test scores qualified

them for two or more ability levels were more likely to be assigned to the lower-level class

than similarly situated white students, and no explanatory reason was evident.177

In addition, educational systems that previously discriminated by race in violation of the

Fourteenth Amendment and have not achieved unitary status have an obligation to

dismantle their prior de jure segregation. In such instances, school districts are under “a

‘heavy burden’ of showing that actions that [have] increased or continued the effects of

the dual system serve important and legitimate ends.”178 When such a school district or

other educational system uses a test or assessment procedure for a high-stakes purpose

that has significant racially disparate effects, to justify the test use, the school district must

show that the test results are not due to the present effects of prior segregation or that the

practice or procedure remedies the present effects of such segregation by offering better

educational opportunities.179
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 53

180 34 C.F.R. § 100.3(b)(2) (Title VI); 34 C.F.R. § 104.4(b)(4)(i) (Section 504); 28 C.F.R. § 35.130(b)(3)(i) (Title II);

see also 34 C.F.R. § 106.31 (Title IX). In Guardians Association, the U.S. Supreme Court upheld the use of the

effects test, stating that the Title VI regulation forbids the use of federal funds, “not only in programs that intentionally

discriminate on racial grounds but also in those endeavors that have a[n] [unjustified racially disproportionate]

impact on racial minorities.” 463 U.S. at 589-90.

181 Georgia State Conf. of Branches of NAACP v. Georgia, 775 F.2d 1403, 1417 (11th Cir. 1985); see also Elston,

997 F.2d at 1407 n.14; Larry P., 793 F.2d at 982 n.9; Groves, 776 F. Supp. at 1523-24, 1529-32; Sharif, 709 F.

Supp. at 361. Many courts use the term “equally effective” when discussing whether the alternative offered by the

party challenging the test is feasible and would effectively meet the institution’s goals. See, e.g., Georgia State Conf.,

775 F.2d at 1417; Sharif, 709 F. Supp. at 361. Other courts use the term “comparably effective” in evaluating

proposed alternatives. See, e.g., Elston, 997 F.2d at 1407; Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1118 (11th

Cir. 1993). Review of the decisions in these cases indicates that the courts appear to be using the terms synonymously.

182 Disparate impact disability discrimination may take forms that are not always amenable to analysis through the

three-part approach usually applied in race or sex discrimination cases. For example, statistical evidence showing

the effect of architectural barriers on persons of various types of disabilities may not be necessary. See Choate, 469

U.S. at 297-300. For this reason, disability discrimination is discussed separately. See discussion infra Chapter 2

(Legal Principles) Part III (Testing of Students with Disabilities).

183 Elston, 997 F.2d at 1412.

B. Disparate Impact

The federal nondiscrimination regulations also provide that a recipient of federal funds

may not “utilize criteria or methods of administration which have the effect of subjecting

individuals to discrimination.”180 Thus, discrimination under federal law may occur where

the application of neutral criteria is shown by the party challenging those criteria to have

discriminatory effects and those criteria are not shown by the recipient to be educationally

justified. Even if the criteria are educationally justified, discrimination may be found if it is

shown by the challenging party that there are alternative practices available that are equally

effective in serving the educational institution’s goals and have less disparate impact. It is

important to understand that disparities in student performance based on race, national

origin, sex, or disability, do not alone constitute disparate impact discrimination under

federal law; nothing in federal law guarantees equal results. Rather, significant disparities

trigger further inquiry to ensure that the given policy is in fact nondiscriminatory.

Courts applying the disparate impact test have examined three questions to determine if

the practice at issue is discriminatory: (1) Does the practice or procedure in question result

in significant differences in the award of benefits or services based on race, national origin,

or sex? (2) Is the practice or procedure educationally justified? and (3) Is there an equally

effective alternative that can accomplish the institution’s educational goal with less

disparity?181 (For a discussion of disability discrimination, including disparate impact

discrimination, see discussion infra Chapter 2 (Legal Principles) Part III (Testing of Students

with Disabilities).182)

The party challenging the test has the burden of establishing disparate impact. If disparate

impact is established, the educational institution must demonstrate the educational

justification (also referred to as “educational necessity”) of the practice in question.183 If a

sufficient educational justification is established, then the party challenging the test must
The Use of Tests as Part of High-Stakes Decision-Making for Students:

54 A Resource Guide For Educators and Policy-Makers

184 Georgia State Conf., 775 F.2d at 1417; see also Department of Justice, Title VI Legal Manual, p. 2.

185 Different courts have used different methods for determining disparate impact. Some courts have used an 80

percent rule whereby disparate impact is shown when the rate of selection for the less successful group is less than

80 percent of the rate of selection for the most successful group. Another type of statistical analysis considers the

difference between the expected and observed rates in terms of standard deviations, with the difference generally

expected to be more than two or three standard deviations. Another test is known as the “Shoben formula” in

which the difference or Z-value in the groups’ success rates must be statistically significant. Groves, 776 F. Supp. at

1526-28 (discussing these methods and the cases in which they were used).

188 Watson, 487 U.S. at 994-95; Groves, 776 F. Supp. at 1526-27.

189 When determining disparate impact in the context of a selection system, the comparison pool generally consists

of all minimally qualified test takers or applicants.When tests are used to determine placement or some other type

of educational treatment, the comparison is between those identified by the test for the placement or educational

treatment and the relevant pool of test takers. The precise composition of the comparison pool is determined on a

case-by-case basis. See Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 650-51 (1989); Watson, 487 U.S. at 995-

97; Groves, 776 F. Supp. at 1525-26.

Generally, if a statistical analysis shows

that the success rate for a particular group

of students is significantly lower (or the

failure rate is significantly higher) than

what would be expected from a random

distribution, then the test has

disproportionate adverse impact.

National Research Council, High Stakes:

Testing for Tracking, Promotion, and

Graduation, p. 59 (Jay P. Heubert & Robert

M. Hauser 1999).

establish that an alternative with less disparate impact is equally effective in meeting the

institution’s educational goals in order to prevail.184

1. Determining Disparate Impact

The first question in the disparate impact

analysis is whether there is information

indicating a significant disparity in the

provision of benefits or services to

students based on race, national origin,

or sex. Courts have used a variety of

methods to distinguish differences

between outcomes that are statistically

and practically significant from those that

are random.185 To determine if a sufficient

disparate impact exists, courts have

focused on evidence of statistical

disparities. 186 Generally, a test has a

disproportionate adverse impact if a statistical analysis shows a significant difference from the

expected random distribution.

187

There is no rigid mathematical threshold regarding the degree of disproportionality required;

however, the statistical evidence must identify disparities that are sufficiently substantial to raise

an inference that the challenged practice caused the disparate results.188 To establish disparate

impact in the context of a selection system, the comparison must be made between those

selected for the educational benefit or service and a relevant pool of applicants or test takers.189
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 55

190 As noted by Justice O’Connor in Watson, courts have found it “relatively easy,” when appropriate statistical proof

is presented, to identify a standardized test as causing the racial, national origin, or sex related disparity at issue. 487

U.S. at 994;see also GI Forum, 87 F. Supp. 2d at 677-79 (given legally meaningful differences in the pass rates of

minority and majority students, plaintiffs made a prima facie showing of disparate impact resulting from a graduation

test).

191 Elements of a decision-making process that cannot be separated for purposes of analysis may be analyzed as one

selection practice. See Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(k)(1)(B)(i). This is necessary

because limiting the disparate impact analysis to a discrete component of a selection process would not allow for

situations “where the adverse impact is caused by the interaction of two or more components of the process.” Graffam

v. Scott Paper Co., 870 F. Supp. 389, 395 (D. Me. 1994), aff’d, 60 F.3d 809 (1995).

192 See Wards Cove, 490 U.S. at 659.

193 See Board of Educ. v. Harris, 444 U.S. 130, 151 (1979); Elston, 997 F.2d at 1412.

194 See Groves, 776 F. Supp. at 1529 (citing Wards Cove, 490 U.S. at 659).

195 See, e.g., Debra P., 644 F.2d at 402 (indicating that the court is not in a position to determine education policy,

and the state’s efforts to establish minimum standards and improve educational quality are praiseworthy).

196 Wards Cove, 490 U.S. at 659; Elston, 997 F.2d at 1412 (citing Georgia State Conf., 775 F.2d at 1417-18).

197 See Georgia State Conf., 775 F.2d at 1418 (showing required that “achievement grouping practices bear a

manifest demonstrable relationship to classroom education”); Sharif, 709 F. Supp. at 362 (defendants must show

a manifest relationship between use of the SAT and recognition of academic achievement in high school). As

explained in Elston, “from consulting the way in which . . . [courts] analyze the ‘educational necessity’ issue, it

becomes clear that . . . [they] are essentially requiring . . . [the educational institution to] show that the challenged

course of action is demonstrably necessary to meeting an important educational goal.” Elston, 997 F.2d at 1412.

In other words, the institution can defend the challenged practice on the grounds that it is “supported by a

‘substantial legitimate justification.’” Id. (quoting Georgia State Conf., 775 F.2d at 1417); see, e.g., Georgia State

Conf., 775 F.2d at 1417-18; Groves, 776 F. Supp. at 1529-32.

In general, a specific policy, practice, or procedure must be identified as causing the

disproportionate adverse effect on the basis of race, national origin, or sex.190 For example,

when a particular use of a test is being challenged, the evidence should show that the test

use, rather than other selection factors, accounts for the disparity.191

2. Determining Educational Necessity

Where the use of a test results in decisions that have a disparate impact on the basis of

race, national origin, or sex, the test use causing the disparity must significantly serve the

legitimate educational goals of the institution.192 This inquiry is usually referred to as

determining the “educational necessity” of the test use or determining whether the test is

“educationally justified.”193

In evaluating educational necessity, both the legitimacy of the educational goal asserted

by the institution and the use of the test as a valid means to advance that goal may be at

issue. Courts generally give deference to educational institutions to define their own

legitimate educational goals194 and focus more directly on whether the challenged test

supports those goals.195 While the test need not be “essential” or “indispensable” to

achieving the institution’s educational goal,196 the educational institution must show a

manifest relationship between use of the test and an important educational purpose.197
The Use of Tests as Part of High-Stakes Decision-Making for Students:

56 A Resource Guide For Educators and Policy-Makers

198 In general, courts have said that validity refers to the accuracy of conclusions drawn from test results. See Allen

v. Alabama State Bd. of Educ., 976 F. Supp. 1410, 1420-21 (M.D. Ala. 1997) (“Generally, validity is defined as the

degree to which a certain inference from a test is appropriate and meaningful,” quoting Richardson v. Lamar County

Bd. of Educ., 729 F. Supp. 809, 820 (M.D. Ala. 1989), aff’d, 164 F.3d 1347 (11th Cir. 1999), injunction granted,

2000 U.S. Dist. LEXIS 123 (M.D. Ala.)); s ee also Richardson, 729 F. Supp. at 820-21 (“[A] test will be valid so long

as it is built to yield its intended inference and the design and execution of the test are within the bounds of

professional standards accepted by the testing industry.”); Anderson v. Banks, 520 F. Supp. 472, 489 (S.D. Ga.

1981) (“Validity in the testing field indicates whether a test measures what it is supposed to measure.”).

199 See, e.g., United States v. LULAC, 793 F.2d 636, 640, 649 (5th Cir. 1986) (pointing to substantial expert

evidence in the record, including validity studies, indicating that the tests involved were valid measures of the basic

skills that teachers should have). The sponsors of the newly revised Joint Standards advise that the Joint Standards

is intended to provide guidance to testing professionals in making such judgments. Joint Standards, supra note 3,

at p.4. The Joint Standards is discussed more fully in Chapter One of this guide.

Where the evidence indicates that the educational institution is using a test in a manner that does not lead to valid

inferences, educational justification may be found lacking. Groves, 776 F. Supp. at 1530 (requiring minimum ACT

score for admission to undergraduate teacher education programs violated the Title VI regulations since ACT scores

had not been validated for this purpose); Sharif, 709 F. Supp. at 361-63 (in ruling on a motion for preliminary

injunction, court found that the state’s use of SAT scores as the sole basis for decisions awarding college scholarships

intended to reward high school achievement was not educationally justified for this purpose in that the SAT had

been designed as an aptitude test to predict college success and was not designed or validated to measure past high

school achievement); See Fordice, 505 U.S. at 736-37 (ruling that Mississippi’s exclusive use of ACT scores in

making college admissions decisions was not educationally justified, since, among other factors, the ACT’s

administering organization discouraged this practice).

Numeric evidence is not the only way that validity can be demonstrated, however. Courts can draw inferences of

validity from a wide range of data points. Watson, 487 U.S. at 998 (referring to procedures used to evaluate

personal qualities of candidates for managerial jobs).

200 See, e.g., Larry P., 793 F.2d at 980; Georgia State Conf., 775 F.2d at 1417-20; Groves, 776 F. Supp. at 1530-31.

In the educational context, tests play a complex role that bears on evaluation of educational justification. As noted

by the court in Larry P.,

[I]f tests can predict that a person is going to be a poor employee, the employer can legitimately

deny that person a job, but if tests suggest that a young child is probably going to be a poor

student, the school cannot on that basis alone deny that child the opportunity to improve and

develop the academic skills necessary to success in our society.

793 F.2d at 980 (quoting Larry P., v. Riles, 495 F. Supp. 926, 969 (1979)). Because determining whether a test is

a valid basis for classifying students and placing them in different educational programs may be even more complex

and difficult than determining if a test validly predicts job performance, particular sensitivity is needed to all of the

interests involved. The question may be not only whether a test provides valid information about a student’s ability

and achievement, but whether the educational services provided to the student as a consequence of the test serve

the student’s needs. Inequality in the services provided to students prior to the test, as well as in the services

provided as a consequence of the test, may also be a factor considered as part of the educational justification for

In conducting this analysis, courts have generally considered relevant evidence of validity,

reliability, and fairness198 provided by the test developer and test user to determine the

acceptability of the test for the purpose used, giving deference, as appropriate, to the

educational institution’s testing practices that are within professionally accepted standards.199

The educational justification inquiry thus generally looks at technical questions regarding

the test’s accuracy in relation to the nature and importance of the educational institution’s

goals, the educational consequences to students, the relationship of the educational

institution to the student, and other factors bearing on test use, such as whether and how

additional information beyond the test score enters into the educational decision at stake.200
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 57

using a test in a particular way. See Debra P., 644 F.2d at 407-08 (agreeing with the statement that Title VI would not

be violated if the test were a fair test of what students were taught); Debra P. v. Turlington, 730 F.2d 1405, 1407,

1410-11, 1416 (11th Cir. 1984) (affirming that the extent of remedial efforts to address test failure is relevant to

evaluation of test use).

201 See Debra P., 644 F.2d at 408.

202 New York Urban League v. New York, 71 F.3d 1031, 1036 (2d Cir. 1995) (stating “the plaintiff may still prove his

case by demonstrating that other less discriminatory means would serve the same objective”); see also Albemarle

Paper Co. v. Moody, 422 U.S. 405, 425 (1975); Richardson, 729 F. Supp. at 815. Alternative practices that have

been offered for examination include procedures that consider additional types of performance information along

with test results consistent with the institution’s goals. See, e.g., Sharif, 709 F. Supp. at 362063 (consideration of

SAT score plus grade point average would be a better measure of high school achievement for purpose of scholarship

eligibility than SAT score alone); GI Forum, 87 F. Supp. 2d at 681 (consideration of grades along with graduation

test scores would not further state’s legitimate purpose in using test).

203 See Wards Cove, 490 U.S. at 661 (indicating that factors such as costs or other burdens are relevant in determining

whether the alternative is equally effective in serving employer’s legitimate goals); MacPherson v. University of

Montevallo, 922 F.2d 766, 773 (11th Cir. 1991) (holding that plaintiff must show that the alternative is economically

feasible); Sharif, 709 F. Supp. at 363-64 (finding defendant’s claim that proposed alternative was not feasible and

excessively burdensome not persuasive since most other states used proposed alternative).

Where a test is used for promotion or graduation purposes, a major consideration is the

extent to which the educational institution has provided the student with the opportunity

to learn the content and skills being tested.201

3. Determining Whether There Are Equally Effective Alternatives that Serve

the Institution’s Educational Goal with Less Disparity

If the educational institution provides sufficient evidence that the test use in question is justified

educationally, the party challenging the test has the opportunity to show that there exists an

equally effective alternative practice that meets the institution’s goals with less disparity.202

The feasibility of an alternative, including costs and administrative burdens, is a relevant

consideration.203

II. Testing Of Students With Limited English

Proficiency

Testing of students with limited English proficiency in the elementary and secondary

education context raises a set of unique issues. To understand the obligations of states

and school districts with regard to high-stakes testing of such students, it is important to

understand the basic obligations of school districts and states under Title VI and federal

law that relate to language minority students who are learning English.

Title VI prohibits discrimination based on race, color, or national origin. On May 25,

1970, the United States Department of Health, Education, and Welfare’s Office for Civil

Rights issued a policy memorandum entitled “Identification of Discrimination and Denial

of Services on the Basis of National Origin.” The May 25th memorandum clarified the
The Use of Tests as Part of High-Stakes Decision-Making for Students:

58 A Resource Guide For Educators and Policy-Makers

204 Identification of Discrimination and Denial of Services on the Basis of National Origin, 35 Fed. Reg. 11595

(1970). The Department of Health, Education and Welfare was the predecessor of the U.S. Department of Education.

205 Lau, 414 U.S. at 566-68.

206 Lau, 414 U.S. at 568 (citing, among other legal authority, the predecessor of 34 C.F.R. § 100.3 (b)(2)).

207 Castanada v. Pickard, 648 F.2d 989, 1005-06, 1009-12 (5th Cir. 1981). The analytical framework in Castaneda

which was decided under the Equal Educational Opportunities Act (EEOA), 20 U.S.C. §§ 1701 et seq., has been

applied to OCR’s Title VI analysis. See Williams Memorandum, supra note 50. The EEOA contains standards

related to limited English proficient students similar to the Title VI regulations.

208 Castaneda, 648 F.2d at 1011.

209 See discussion supra Chapter 1 (Test Measurement Principles) Part (II)(B) (Testing of Limited English Proficient

Students) for a discussion of the relevant principles involved in determining the reliability and validity of tests used

with limited English proficient students.

responsibility of school districts, under Title VI, to provide equal educational opportunity

to national origin minority group students whose inability to speak and understand the

English language excludes them from effective participation in any education program

offered by a school district.204 This memorandum was cited with approval by the Supreme

Court in its decision in Lau v. Nichols, which held that the district’s policy of teaching

national origin minority group children only in English, without any special assistance,

deprived them of the opportunity to benefit from the district’s education program, including

meeting the English language proficiency standards required by the state for a high school

diploma.205 The Lau case held that such policies are barred when they have the effect of

denying such benefits, even though no purposeful design is present.206

Subsequently, Castaneda v. Pickard,

207 relying on the language of the Equal Educational

Opportunities Act (EEOA), explained the steps school districts must take to help students

with limited English proficiency overcome language barriers to ensure that they can

participate meaningfully in the districts’ educational programs.208 The court stated that

school districts have an obligation to provide services that enable students to acquire

English language proficiency. A school system that chooses to temporarily emphasize

English over other subjects retains an obligation to provide assistance necessary to remedy

academic deficits that may have occurred in other subjects while the student was focusing

on learning English.

Under the Castaneda standards, school districts have broad discretion in choosing a program

of instruction for limited English proficient students. However, the program must be based

on sound educational theory, must be adequately supported so that the program has a

realistic chance of success, and must be periodically evaluated and revised, if necessary,

to achieve its goals.

The disparate impact framework discussed earlier in the guide in Chapter 2 Part (I)(B)

may also be used to examine whether tests used for high-stakes purposes result in a

discriminatory impact upon students with limited English proficiency. As part of this analysis,

questions may arise regarding the validity and reliability of the test for these students.209
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 59

210 Williams Memorandum, supra, note 50.

211 Careful attention to the alignment between instructional content and testing standards is especially important for

students who receive instruction that deviates from the regular curriculum. See Brookhart v. Illinois State Bd. of

Educ., 697 F.2d 179, 186-87 (7th Cir. 1982) (finding that students with disabilities in special education programs

were denied exposure to most of the material covered in a newly instituted graduation test).

212 Indeed, Title I of the Elementary and Secondary Education Act explicitly requires states to include limited English

proficient students in the statewide assessments used to hold schools and school districts accountable for student

performance. Title I of the Elementary and Secondary Education Act, 20 U.S.C. § 6311(b)(3)(F)(iii). If a school

district uses the results of a test given for program accountability purposes to make educational decisions about

individual students, the high-stakes use of the test must also be valid and reliable for this purpose.

Depending upon the purpose of the test and the characteristics of the populations being

tested, in some situations, accommodations or other forms of assessment of the same

construct may be necessary. In short, the obligation is to ensure that the same constructs

are being measured for all students.

There are three particularly important areas involving high-stakes testing of students with

limited English proficiency: (1) tests used to determine a student’s proficiency in the areas

of speaking, listening, reading, or writing English for the purpose of determining whether

the student should be provided with a program or services to enable the student to acquire

English language skills (and, later, for the purpose of determining whether the student is

ready to exit the program or services); (2) tests used to determine if the student meets the

criteria for other specialized instructional programs, such as gifted and talented or vocational

education programs; and (3) systemwide tests, including graduation tests, administered to

determine if students have met performance standards.

Tests used to determine a student’s initial and continuing need for special language programs

should be appropriate in light of a district’s own performance expectations and otherwise

valid and reliable for the purpose used. Tests used by schools to help select students for

specialized instructional programs, including programs for gifted and talented students,

should not screen out limited English proficient students unless the program itself requires

proficiency in English for meaningful participation.210 When a state or school district adopts

content and performance standards and uses tests for high-stakes purposes, such as

graduation tests, to measure whether students have mastered those standards, a critical

factor under Title VI is whether the overall educational program provided to students with

limited English proficiency is reasonably calculated to enable the students to master the

knowledge and skills that are required to pass the test. When education agencies institute

standards-based testing, it is important for them to examine their programs for students

with limited English proficiency to determine when and how these students will be provided

with the instruction needed to prepare them to pass the test in question. 211

In addition, students with limited English proficiency may not be categorically excluded

from standardized testing designed to increase accountability of educational programs for

effective instruction and student performance. If these students are not included, the test

data will not fairly reflect the performance of all students for whom the education agency

is responsible.212 Such test data can also help a district assess the effectiveness of its content

and English language acquisition programs.
The Use of Tests as Part of High-Stakes Decision-Making for Students:

60 A Resource Guide For Educators and Policy-Makers

213 For more information on appropriate practices for testing students who are learning English, see Kopriva,

Ensuring Accuracy in Testing, supra note 131.

214 Although this part of the chapter deals only with students with disabilities attending public elementary and

secondary schools, private schools that are not religious schools operated by religious organizations are covered by

Title III of the ADA. Title III of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12181 et seq. In addition,

Title I of the Elementary and Secondary Education Act of 1965, as amended, contains important provisions

regarding students with disabilities in the Title I program and their participation in assessments of Title I programs.

See 20 U.S.C. § 6311(b)(3)(F).

215 Individuals with Disabilities Education Act, 20 U.S.C. § 1400(d)(1)(c).

216 The Section 504 regulation is found at 34 C.F.R. Part 104. The Title II regulation is found at 28 C.F.R. Part 35. The

IDEA regulation is found at 34 C.F.R. Part 300.

217 28 C.F.R. § 35.130(b)(3); 34 C.F.R. § 104.4(b)(4). In Guardians Association, the United States Supreme Court

upheld the use of the effects test in the context of Title VI, stating that the Title VI regulation forbids the use of federal

funds, “not only in programs that intentionally discriminate on racial grounds but also in those endeavors that have

a [racially disproportionate] impact on racial minorities.” 463 U.S. at 589.

For information on the factors that help ensure accuracy of tests for limited English proficient

students, see discussion infra Chapter 1 (Test Measurement Principles) Part II (B) (Testing

of Limited English Proficient Students). In making decisions about testing limited English

proficient students, factors such as the student’s level of English proficiency, the primary

language of instruction, the level of literacy in the native language, and the number of

years of instruction in English may all be pertinent.213 When students participate in

assessments designed to meet the requirements of Title I of the Elementary and Secondary

Education Act, as amended, those assessments must be implemented in a manner that is

consistent with both the requirements of Title VI and Title I.

III. Testing Of Students With Disabilities

Three federal statutes provide basic protections for elementary and secondary students

with disabilities. Section 504 of the Rehabilitation Act of 1973 (Section 504) and Title II

of the Americans with Disabilities Act of 1990 (Title II) prohibit discrimination against

persons with disabilities by public schools.214 The Individuals with Disabilities Education

Act (IDEA) establishes rights and protections for students with disabilities and their families.

It also provides federal funds to state education agencies and school districts to assist in

educating students with disabilities.215 Under Section 504, Title II, and the IDEA,216 school

districts have a responsibility to provide students with disabilities, as defined by applicable

law, with a free appropriate public education. Providing effective instruction in the general

curriculum for students with disabilities is an important aspect of providing a free appropriate

public education.

The regulations implementing Section 504 and Title II specifically prohibit the use of

“criteria or methods of administration . . . that have the effect of subjecting qualified persons

with disabilities to discrimination on the basis of disability.”217 Under Section 504, Title II,

and the IDEA, tests given to students with disabilities must be selected and administered
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 61

218 See 34 C.F.R. § 104.35(b) (specific provisions covering the use of tests for evaluation purposes).

219 See 34 C.F.R. § 104.35(c) (requiring placement decisions to consider information from a variety of sources).

220 34 C.F.R. §§ 104.35(b)(3), 300.532.

so that the test accurately reflects what a student knows or is able to do, rather than a

student’s disability (except when the test is designed to measure disability-related skills).

This means that students with disabilities covered by these statutes must be given

appropriate accommodations and modifications in the administration of the tests that allow

the same constructs to be measured. Examples include oral testing, tests in large print,

Braille versions of tests, individual testing, and separate group testing.

Generally, there are three critical areas in which high-stakes testing issues arise for students

with disabilities: (1) tests used to determine whether a student has a disability and, if so,

the nature of the disability; (2) tests used to determine if a student meets the criteria for

other specialized instructional programs, such as gifted and talented or vocational education

programs; and (3) systemwide tests administered to determine if a student has met

performance standards.

Under Section 504, Title II, and the IDEA, before an elementary and secondary school

student can be classified as having a disability, the responsible education agency must

individually evaluate the student in accordance with specific statutory and regulatory

requirements, including requirements regarding the validity of tests and the provision of

appropriate accommodations.218 These requirements prohibit the use of a single test score

as the sole criterion for determining whether a student has a disability and for determining

an appropriate educational placement for the student.219

When tests are used for other purposes, such as in making decisions about placement in

gifted and talented programs, it is important that tests measure the skills and abilities needed

in the program, rather than the disability, unless the test purports to measure skills or

functions that are impaired by the disability and such functions are necessary for

participation in the program.220 For this reason, appropriate accommodations may need

to be provided to students with disabilities in order to measure accurately their performance

in the skills and abilities required in the program.

Furthermore, federal laws generally require the inclusion of students with disabilities in

state- and districtwide assessment programs, except as participation in particular tests is

individually determined to be inappropriate for a particular student. Assessment programs

should provide valuable information that benefits students, either directly, such as in the

measurement of individual progress against standards, or indirectly, such as in evaluating

programs. Given these benefits, exclusion from assessment programs, unless such

participation is individually determined inappropriate because of the student’s disability,

would generally violate Section 504 and Title II. If a student with a disability will take the

systemwide assessment test the student must be provided appropriate instruction and
The Use of Tests as Part of High-Stakes Decision-Making for Students:

62 A Resource Guide For Educators and Policy-Makers

221 Brookhart, 697 F.2d at 183-84. Some courts have held that a student with a disability may be denied a diploma

if, despite receiving appropriate services and testing accommodations, the student, because of the disability, is

unable to pass the required test or meet other graduation requirements. Id., at 183; Anderson, 520 F. Supp. at 509-

11; Board of Educ. v. Ambach, 458 N.Y.S.2d 680, 684-85, 689 (N.Y. App. Div. 1982), aff’d, 469 N.Y.S.2d 669

(1983).

222 20 U.S.C. § 1412(a)(17); 34 C.F.R. § 300.138(a).

223 34 C.F.R. § 300.138(b). The IDEA Final Regulations, Attachment I—Analysis of Comments and Changes, 64

Fed. Reg. 12406, 12564 (1999), projects that there will be a relatively small number of students who will not be

able to participate in the district or state assessment program with accommodations and modifications, and will

therefore need to be assessed through alternate means. These alternate assessments must be developed and

conducted beginning not later than July 1, 2000.

224 See 34 C.F.R. § 300.347(a)(5) (IEP requirements applicable to assessment of students with disabilities under

IDEA); 34 C.F.R. § 104.33 (more general evaluation requirements under Section 504).

225 34 C.F.R. § 300.347(a)(5).

226 34 C.F.R. §§ 300.507, 104.36.

227 Under the Section 504 regulation, a qualified person with a disability for purposes of post-secondary education

is an individual with a disability within the meaning of the regulation who meets the academic and technical

standards for admission. 34 C.F.R. §§ 104.3(j), 104.3(k).

appropriate test accommodations.221 The Individuals with Disabilities Education

Amendments of 1997 specifically require states, as a condition of receiving IDEA funds,

to include students with disabilities in the regular state- and districtwide assessment

programs, with appropriate accommodations, where necessary.222 The IDEA also requires

state or local education agencies to develop guidelines for the relatively small number of

students with disabilities who cannot take part in state- and districtwide tests to participate

in alternate assessments.223

For children with disabilities, school personnel knowledgeable about the student, the nature

of the disability, and the testing program, in conjunction with the student’s parent or

guardian, determine whether the student will participate in all or part of the state- or

districtwide assessment of student achievement.224 The decision must be documented in

the student’s individualized education program (IEP), or a similar record, such as a Section

504 plan. These records must also state any individual accommodations in the

administration of the state- or districtwide assessments of student achievement that are

needed to enable the student to participate in such assessment. An IEP, developed under

the IDEA, must also explain how the student will be assessed if it is inappropriate for the

student to participate in the testing program even with accommodations.225 The individual

decisions made regarding testing of the student in the IEP or Section 504 plan are subject

to appeal by the parent or guardian through the due process procedures required by

applicable law.226

Section 504 and Title II also prohibit discrimination against qualified persons with disabilities

in virtually all public and private post-secondary institutions. 227 The regulatory

requirements related to disability discrimination are different in post-secondary education

than in elementary and secondary education. Post-secondary institutions are not required

to evaluate students or to provide them with a free appropriate education.
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 63

228 Test providers that are not higher education institutions may be covered by Section 504 if they receive federal

funds; by Title II if they are parts of governmental units; or by Title III if they are private entities. Each of these laws

has its own requirements. For more information regarding testing under Title III of the ADA, consult the U.S.

Department of Justice.

229 34 C.F.R. § 104.42(b)(2). Appendix A to the Section 504 regulation, Subpart E-Post-secondary Education, No.

29, notes that the party challenging the test would have the burden of showing that alternate tests with less disparate

impact are available.

230 34 C.F.R. § 104.42(b)(3).

231 Some undergraduate college programs require students to pass a rising junior examination to determine whether

students have met the college’s standards in writing or other academic skills as a prerequisite for advancement to

junior year status.

232 34 C.F.R. §§ 104.44(a), 104.44(d).

233 See, e.g., Kaltenberger v. Ohio College of Podiatric Medicine, 162 F.3d 432, 437 (6th Cir. 1998).

High-stakes testing issues at the post-secondary level generally relate to tests considered

by post-secondary institutions for admissions, including tests given by an educational

institution or other covered entities as prerequisites for entering a career or career path,

and tests of academic competency required by the institution to complete a program.

This guide is not intended to offer a complete or detailed explanation of each of these

testing situations, but only a brief synopsis.228

The Section 504 regulation specifically provides that higher education institutions’

admissions procedures may not make use of any test or criterion for admission that has a

disproportionate, adverse impact on individuals with disabilities unless (1) the test or

criterion, as used by the institution, has been validated as a predictor of success in the

education program or activity and (2) alternative tests or criteria that have a less

disproportionate, adverse impact are not shown to be available.229 In administering tests,

appropriate accommodations must be provided so that the person can demonstrate his or

her aptitude and achievement, not the effect of the disability (except where the functions

impaired by the disability are the factors the test purports to measure).230

For other high-stakes tests that an institution might administer, such as rising junior tests,

similar requirements apply. 231 The institution must provide adjustments or

accommodations and auxiliary aids and services that enable the student to demonstrate

the knowledge and skills being tested.232

Students are required to notify the educational institution when accommodations are

needed and initially supply adequate documentation of a current disability and the need

for accommodation.233 The student’s preferred accommodation does not have to be

provided as long as an effective accommodation is provided.

Test accommodations are intended to provide the person with disabilities the means by

which to demonstrate the skills and knowledge being tested. Although Section 504 and

Title II require a college or university to make reasonable modifications, neither Section 504
The Use of Tests as Part of High-Stakes Decision-Making for Students:

64 A Resource Guide For Educators and Policy-Makers

234 See 34 C.F.R. § 104.44(a).

235 Southeastern Community College v. Davis, 442 U.S. 397, 413 (1979); Wynne v. Tufts Univ. Sch. of Medicine,

976 F.2d 791, 794-96 (1st Cir. 1992), cert. denied, 507 U.S. 1030 (1993).

236 The U.S. Department of Education, Office for Civil Rights, does not have jurisdiction to resolve constitutional

cases. However, some cases involve constitutional issues that overlap with discrimination issues arising under

federal civil rights laws.

237 Federal cases may also involve equal protection challenges to a jurisdiction’s use of tests in which the claim is not

based on race or sex discrimination, but instead on the alleged impropriety of the jurisdiction’s use of the test in

making educational decisions. As a general matter, courts express reluctance to second guess a state’s educational

policy choices when faced with such challenges, although recognize that a state cannot “exercise that [plenary]

power without reason and without regard to the United States Constitution.” Debra P., 644 F.2d at 403. When there

is no claim of discrimination based on membership in a suspect class, the equal protection claim is reviewed under

the rational basis standard. In these cases, the jurisdiction need show only that the use of the tests has a rational

relationship to a valid state interest. Id., at 406; see also Erik V. v. Causby, 977 F. Supp. 384, 389 (E.D.N.C. 1997).

nor Title II requires a college or university to change, lower, waive, or eliminate academic

requirements or technical standards that can be demonstrated by the college or university

to be essential to its program of instruction or to any directly related licensing requirement.234

Accommodations requested by students need not be provided if they would result in a

fundamental alteration to the institution’s program.235

IV. Constitutional Protections

In addition to applying federal nondiscrimination statutes, courts have also considered

constitutional issues that may arise when public school districts orstate education agencies

utilize tests for high-stakes purposes in their educational programs, particularly tests required

for promotion or graduation.236 Constitutional challenges to testing programs under the

Fourteenth Amendment have raised both equal protection and due process claims. The

equal protection principles involved in discrimination cases are, generally speaking, the

same as the standards applied to intentional discrimination claims under the applicable

federal nondiscrimination statutes.237
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 65

238 A review of relevant cases reveals the highly fact- and context-specific nature of the conclusions reached by

federal courts considering alleged violations of the due process clause. In Debra P., the Fifth Circuit held that

students’ due process rights were violated when a newly imposed minimum competency test required for high

school graduation was instituted without adequate notice and an opportunity for students to learn the material

covered by the test. 644 F.2d at 404. Three years later, in Debra P. v. Turlington, the court held that students who

now had six years notice of the exam were afforded the opportunity to learn the relevant material, given the state’s

remedial programs. 730 F.2d at 1416-17. For additional courts identifying due process violations in the way in

which a competency test was instituted, see Brookhart, 697 F.2d at 186-87 (holding that district-required minimum

competency test for graduation denied due process to students with disabilities where notice was inadequate and

students had not been exposed to 90 percent of the material covered by the test); Crump v. Gilmer Indep. Sch. Dist.,

797 F. Supp. 552, 556-57 (E.D. Tex. 1992) (granting temporary restraining order where district had not demonstrated

validity of graduation examination in light of actual instructional content); Anderson, 520 F. Supp. at 508-09

(finding that school district failed to show that minimum competency test required for high school graduation

covered material actually taught at school). Other cases have concluded that adequate notice was provided, the test

or criterion at issue was closely related to the instructional program, or the promotion decision was not shown to be

outside the discretion of school authorities. See Erik V., 977 F. Supp. at 389-90 (finding that promotion decision

was within proper purview of school authorities); Williams v. Austin Indep. Sch. Dist., 796 F. Supp. 251, 253-54

(W.D. Tex. 1992) (considering students to have had seven years advance notice of high school competency exam

although standards of performance were recently raised). Also relevant are promotion cases in which students were

required to demonstrate adequate reading skills, although a separate test was not apparently involved. See Bester

v. Tuscaloosa City Bd. of Educ., 722 F.2d 1514, 1516 (11th Cir. 1984) (finding reading standards required for

promotion to merely reinforce district policy of retention for substandard work); Sandlin v. Johnson, 643 F.2d

1027, 1029 (4th Cir. 1981) (finding denial of second-grade promotion for failing to attain required level in reading

series within discretion of school district). For a testing case raising similar due process issues at the post-secondary

level, see Mahavongsanan v. Hall, 529 F.2d 448, 450 (5th Cir. 1976) (finding no violation of due process where the

university’s decision to require a comprehensive examination for receipt of a graduate degree was a reasonable

academic regulation, plaintiff received timely notice that she would be required to take the examination, she was

allowed to retake the test, and the university afforded her an opportunity to complete additional course work in lieu

of the examination).

239 See Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 226-27 (1985); Debra P., 644 F.2d at 406; Anderson,

520 F. Supp. at 506.

240 See Ewing, 474 U.S. at 222, 226-27. (acknowledging that courts will not review academic decisions of colleges

and universities unless the decision is such a substantial departure from accepted academic norms as to demonstrate

that professional judgment was not actually exercised or where discrimination is claimed); Debra P., 644 F.2d at 402

(finding praiseworthy a state’s effort to set standards to improve public education).

The due process clause of the Fourteenth Amendment is particularly associated with cases

challenging the adequacy of the notice provided to students prior to this type of test and

the students’ opportunity to learn the required content.238 In analyzing such due process

claims, courts have generally considered three issues:

(1) Is the testing program reasonably related to a legitimate

educational purpose?

Federal courts typically defer to educators’ policy judgments regarding the value of

legitimate educational benefits sought from the testing programs.239 For example,

improving the quality of elementary and secondary education through the establishment

of academic standards has been seen as a legitimate goal of a testing program, and colleges

and universities generally have been given wide latitude in framing degree requirements.240

The constitutional inquiry then focuses on whether the challenged testing program is
The Use of Tests as Part of High-Stakes Decision-Making for Students:

66 A Resource Guide For Educators and Policy-Makers

241 The determination as to whether a testing program is rationally related to a legitimate educational goal has been

considered under the Fourteenth Amendment as an issue of substantive due process. See Debra P., 644 F.2d at

404-06; Anderson, 520 F. Supp. at 506. Insofar as due process cases may involve other technical questions of the

validity of the test used to address the institution’s goals, these issues are discussed in the portions of the guide

addressing discrimination under federal civil rights laws.

242 Although there are important exceptions, (United States v. LULAC, 793 F.2d 636, 648 (5th Cir. 1986), and

Anderson, 520 F. Supp. at 505), courts have often considered the issue of adequate notice to be one of procedural

due process. For procedural due process to apply, a protected property or liberty interest must be identified. See

Brookhart, 697 F.2d at 185 (identifying a liberty interest, based on stigma of diploma denial, that disastrously

affected plaintiffs’ future employment and educational opportunities); Debra P., 644 F.2d at 404 (finding sufficient

to trigger due process protection a state-created mutual expectation that students who successfully complete required

courses would receive diploma); Erik V., 977 F. Supp. at 389-90 (finding no property interest in grade-level

promotion warranting preliminary injunction).

243 See Brookhart, 697 F.2d at 186-88; Debra P., 644 F.2d at 404.

244 See Debra P. , 730 F.2d at 1407, 1410-12, 1415-16; Anderson, 520 F. Supp. at 505.

245 Re-testing was available in Erik V., 977 F. Supp. at 388-89, and in Anderson, 520 F. Supp. at 505.

246 See Erik V., 977 F. Supp. at 387 (reading performance of students with grades of A, B, or C on grade-level work

was further reviewed by teacher and principal to determine if student should be promoted notwithstanding the

failing test score).

reasonably related to the educators’ legitimate goals or whether the program produces

results that are arbitrary and capricious or fundamentally unfair.241

(2) Have students received adequate notice of the test and its

consequences?

In the elementary and secondary school context, courts have required sufficient advance

notice of tests required for graduation to give students a reasonable chance to learn the

material presented on the test.242 A particularly important concern in some of these decisions

is the adequacy of notice provided to students. This issue has arisen in cases where racial

minority students and students with disabilities received inadequate notice and did not

receive a program of instruction that prepared them to pass the test.243 In looking at the

length of the transition period needed between the announcement of a new requirement

and its full implementation, the kind of test and the context in which it is administered are

central factors to be considered. Specific circumstances taken into account include the

nature of instructional supports, including remediation, that accompany the test,244 whether

re-testing is permitted,245 and whether the decision to promote or graduate the student

considers other information about the student’s performance.246
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 67

247 The question of opportunity to learn (sometimes called instructional or curricular validity) may be posed as one

of substantive due process. See Debra P., 644 F.2d at 406; Anderson, 520 F. Supp. at 509.

248 See Debra P. , 644 F.2d at 407 (where black students disproportionately failed a statewide test necessary to obtain

a high school diploma, and, due to the prior dual school system, black students received a portion of their education

in unequal, inferior segregated schools, and where the state was unable to show that the diploma sanction did not

perpetuate the effects of that past intentional discrimination, the court found that immediate use of the diploma

sanction punished the black students for deficiencies created by the dual school system in violation of their

constitutional right to equal protection); Debra P., 474 F. Supp. 244, 257 (M.D. Fla. 1979) (“punishing the victims

of past discrimination for deficits created by an inferior educational environment neither constitutes a remedy nor

created better educational opportunities”).

249 See Anderson v. Banks, 540 F. Supp. 761, 765 (S.D. Ga. 1982).

(3) Are students actually taught the knowledge andskills measured

by the test?

Several courts have found that “fundamental fairness” requires that students be taught the

material covered by the test where passing the test is a condition for receipt of a high

school diploma.247 For example, in analyzing this issue in a case involving a state where

there had been past intentional segregation in elementary and secondary schools before

a statewide diploma test was required, and where racial minority students had a

disproportionate failure rate on the test, the court took the state’s past intentional segregation

into account in determining whether racial minority students had been given opportunities

to learn the material covered by the test.248 For the test to meaningfully measure student

achievement, the test, the curriculum, and classroom instruction should be aligned. In

cases examining systemwide administration of a test, courts require evidence that the

content covered by the test is actually taught, but may not expect proof that every student

has received the relevant instruction.249
The Use of Tests as Part of High-Stakes Decision-Making for Students:

68 A Resource Guide For Educators and Policy-Makers
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 69

APPENDIX A: Glossary of Legal Terms

This glossary is provided as a plain language reference to assist non-lawyers in

understanding commonly used legal terms that are either used in this guide or are important

to know in understanding the terms in the guide. Legal terms are often “terms of art.” In

other words, they mean something slightly different or more specific in the legal context

than they do in ordinary conversation.

Burden of proof—the duty of a party to substantiate its claim or defense against the

other party. In civil actions, the weight of this proof is usually described as a preponderance

of the evidence. BLACK’S LAW DICTIONARY 196-97 (6th ed. 1990); see also Disparate impact.

Constitutional rights—the rights of each American citizen that are guaranteed by the

United States Constitution. See Brown v. Board of Educ., 347 U.S. 483 (1954); Bolling v.

Sharpe, 347 U.S. 497 (1954); BLACK’S LAW DICTIONARY 312 (6th ed. 1990).

De jure segregation or discrimination— term applied to systemic school segregation

that was mandated by statute or that was accomplished through the intentionally segregative

actions of local school boards or state education agencies.

Different treatment—a claim that similarly situated persons are treated differently

because of their race, color, national origin, sex or disability. Under federal

nondiscrimination laws, policies and practices must be applied consistently to an individual

or group of students regardless of their race, national origin, sex, or disability, unless there

is a legally permissible reason for not doing so. Title VI, Title IX, Section 504, and the

ADA prohibit intentional discrimination on the basis of race, national origin, color, sex, or

disability. Elston v. Talladega County Bd. of Educ., 997 F.2d 1394, 1406 (11th Cir. 1993).

This requires a showing that the decision-maker was not only aware of the person’s race,

national origin, sex, or disability, but that the recipient acted, at least in part, because of the

person’s race, national origin, sex, or disability. However, the record need not contain

“direct evidence of bad faith, ill will or any evil motive,” on the part of the recipient. Id.,

at 1406 (quoting Williams v. City of Dotham, 745 F.2d 1406, 1414 (11th Cir. 1984)).

Evidence of discriminatory intent may be direct or circumstantial such as evidence of

different treatment. Different treatment may be justified by a lawful reason, for example, to

remedy prior discrimination. See generally United States v. Fordice, 505 U.S. 717, 728-

30 (1992); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 290-91 (1986); Regents of the

Univ. of Cal. v. Bakke, 438 U.S. 265, 305-20 (1978); Hopwood v. Texas, 78 F.3d 932,

948-50 (5th Cir. 1996), cert. denied, 518 U.S. 1033 (1996); BLACK’S LAW DICTIONARY 470

(6th ed. 1990).
The Use of Tests as Part of High-Stakes Decision-Making for Students:

70 A Resource Guide For Educators and Policy-Makers

Disparate impact—disparate impact analysis applies when the application of a neutral

criterion or a facially neutral practice has discriminatory effects and the criterion or practice

is not determined to be “educationally justified” or “educationally necessary.” In contrast

to intentional discrimination, the disparate impact analysis does not require proof of

discriminatory motive. Under the disparate impact analysis, the party challenging the

criterion or practice has the burden of establishing disparate impact. If disparate impact is

established, the party defending the practice must establish an “educational justification.”

If the educational institution provides sufficient evidence that the test use in question is justified

educationally, the party challenging the test has the opportunity to show that there exists an

alternative practice that meets the institution’s goals as well as the challenged test use and

that would eliminate or reduce the adverse impact. See Board of Educ. v. Harris, 444 U.S.

130, 143 (1979); Georgia State Conf. of Branches of NAACP v. Georgia, 775 F.2d 1403,

1412 (11th Cir. 1985); Groves v. Alabama State Bd. of Educ., 776 F. Supp. 1518 (M.D.

Ala. 1991),

Dual system—a previously segregated educational system in which black and white

schools, ostensibly similar, existed side-by-side. See Brown v. Board of Educ., 347 U.S.

483 (1954); Anderson v. Banks, 520 F. Supp. 472, 499-501 (S.D. Ga. 1981).

Due process—a constitutionally guaranteed right. The Fifth Amendment states that no

citizen shall “be deprived of life, liberty, or property, without due process of law.” The

Fourteenth Amendment applied this passage to the states as well. Today it is used by the

judiciary to define the scope of fundamental fairness due to each citizen in his or her

interactions with the government and its agencies. Some courts have held that a student’s

expectation in receiving a high school diploma in return for meeting certain attendance

and academic criteria is a form of a property right or liberty interest. See Debra P. v.

Turlington, 644 F.2d 397 (5th Cir. 1981); Crump v. Gilmer Indep. Sch. Dist., 797 F. Supp.

552, 555-56 (E.D. Tex. 1992); BLACK’S LAW DICTIONARY 500-01 (6th ed. 1990); see also

Procedural due process, Substantive due process. But see Board of Educ. v. Ambach,

458 N.Y.S.2d 680, (N.Y. App. Div. 1982), aff’d, 457 N.E.2d 775 (1983).

Educational necessity—once the party challenging the practice has shown a significant

disparate impact, the educational institution using the challenged practice must present

sufficient evidence that it is justified by educational necessity. Educational necessity

generally refers to a showing that practices or procedures are necessary to meeting an

important educational goal. Elston v. Talladega County Bd. of Educ., 997 F.2d 1394, 1412

(11th Cir. 1993) (citing Georgia State Conf. of Branches of NAACP v. Georgia, 775 F.2d

1403, 1412, 1417 (11th Cir. 1985)). In the context of testing this means the test or assessment

procedure must serve a legitimate educational goal and be valid and reliable for the purpose

used.
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 71

Equal protection—classifications based on race, sex or other grounds may be challenged

under the equal protection clause of the Fourteenth Amendment to the U.S. Constitution

when imposed by state or local government agencies. Distinctions explicitly based on

race or ethnicity, neutral criteria having a discriminatory purpose, or other intentionally

discriminatory conduct based on race or ethnicity will violate the Fourteenth Amendment,

unless the action is narrowly tailored to serve a compelling purpose. Intentional sex

discrimination will violate the Fourteenth Amendment unless there is an exceedingly

persuasive justification. United States v. Virginia, 518 U.S. 515 (1996). Distinctions based

on other grounds will not violate the equal protection clause unless they are not rationally

related to a legitimate governmental objective.

Facially neutral—a regulation, rule, practice or other activity that does not appear to be

discriminatory. A facially neutral practice may be found in violation of federal law if the

practice results in significant differences in the distribution of benefits or services to persons

based on race, national origin, sex or disability without a substantial legitimate educational

justification or there are equally or comparably effective alternative practices available

that meet the institution’s goals with less disparate impact. See, e.g., Lau v. Nichols, 414

U.S. 563 (1974); Larry P. v. Riles, 793 F.2d 969 (9th Cir. 1984).

High-stakes educational decisions for students—decisions that have significant

impact or consequences for individual students. These decisions may involve student

placement in gifted and talented programs; decisions concerning whether a student has a

disability; the appropriate educational program for a student with a disability; promotion

or graduation decisions; and higher education admissions decisions and scholarship

awards. National Research Council, High Stakes: Testing for Tracking, Promotion, and

Graduation, pp. 1-2 (Jay P. Heubert & Robert Hauser eds., 1999); Larry P. v. Riles, 793

F.2d 969 (9th Cir. 1984); Sharif v. New York State Educ. Dep’t, 709 F. Supp. 345 (S.D.N.Y

1989).

Less discriminatory alternative—if the education institution presents sufficient evidence

that the test use or educational practice in question is justified educationally, the party

challenging the test has the opportunity to show that there exists an equally or comparably

effective alternative practice that meets the institution’s goals and that would eliminate or

reduce the adverse impact. Elston v. Talladega County Bd. of Educ., 997 F.2d 1394, 1407

(11th Cir. 1993); Georgia State Conf. of Branches of NAACP v. Georgia, 775 F.2d 1403

(11th Cir. 1985). Costs and administrative burdens are among the factors considered in

assessing whether the alternative practice is equally effective in fulfilling the institution’s goals.

Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 661 (1989); Sharif v. New York State

Educ. Dep’t, 709 F. Supp. 345, 363-64 (S.D.N.Y. 1989) (defendant’s claim that proposed

alternative was not feasible and was excessively burdensome not persuasive since most

other states used proposed alternative).
The Use of Tests as Part of High-Stakes Decision-Making for Students:

72 A Resource Guide For Educators and Policy-Makers

Procedural due process—the right each American citizen has under the Constitution

to a fair process in actions that affect an individual’s life, liberty or property. Procedural

due process includes notice and the right to be heard. Some courts have found that

procedural due process applies to the implementation of minimum competency

examinations required for high school graduation. Debra P. v. Turlington, 474 F. Supp.

244, 263-64 (M.D. Fla. 1979), aff’d in part and vacated in part, 644 F.2d 397 (5th Cir.

1981); Erik V. v. Causby, 977 F. Supp. 384, 389-90 (E.D.N.C. 1997); Crump v. Gilmer

Indep. Sch. Dist., 797 F. Supp. 552, 555-56 (E.D. Tex. 1992); BLACK’S LAW DICTIONARY

1203 (6th ed. 1990).

Significantly disproportionate—when statistical analysis shows that the success rate

of members of an identified group is significantly lower than would be expected from

random distribution within the appropriate qualified pool, the test in question is said to

have a disproportionate adverse impact. There is no set formula to determine when a

sufficient level of adverse impact has been reached; the Supreme Court has stated that

statistical disparities must be sufficiently substantial that they raise an inference of causation.

Courts have advanced percentage disparities, standard deviations or other statistical

formulae to address this component. Disparate impact itself does not necessarily mean

that discrimination has taken place, but it does trigger an inquiry regarding the educational

justification of the challenged practice. See Watson v. Fort Worth Bank & Trust, 487 U.S.

977, 994-95 (1988); Groves v. Alabama State Bd. of Educ., 776 F. Supp. 1518, 1529-32

(M.D. Ala. 1991); Richardson v. Lamar County Bd. of Educ., 729 F. Supp. 806, 815-16

(M.D. Ala. 1989), aff’d, 935 F.2d 1240 (11th Cir. 1991).

Statutory rights—rights protected by statute, as opposed to constitutional rights, which

are protected by the Constitution.

Substantive due process—often stated as “fundamental fairness.” In an education

context, proof that students had not been taught the material on which they were tested

might be a substantive due process violation. Some courts have held that students have

the equivalent of a property or liberty interest in graduating or being promoted according

to the expectations given them. See Debra P. v. Turlington, 644 F.2d 397 (5th Cir. 1981);

Crump v. Gilmer Indep. Sch. Dist., 797 F. Supp. 552, 555-56 (E.D. Tex. 1992); BLACK’S

LAW DICTIONARY 1429 (6th ed. 1990).

Unitary system—a desegregated school system. The Supreme Court has held that all

previously intentionally segregated school systems are required to become unitary systems.

Although the term has been interpreted in different ways by different courts, a “unitary

system” is typically one in which all vestiges of past discrimination and segregated practices

have been eliminated. See Freeman v. Pitts, 506 U.S. 467, 486-89 (1992); Board of

Educ. v. Dowell, 498 U.S. 237, 243-46, 249-51 (1991); Keyes v. School Dist. No. 1, 413

U.S. 189, 208, 257-58 (1973); Georgia State Conf. of Branches of NAACP v. Georgia,

775 F.2d 1403, 1413-16 (11th Cir. 1985); Bester v. Tuscaloosa City Bd. of Educ., 722

F.2d 1514, 1517 (11th Cir. 1984); Debra P. v. Turlington, 474 F. Supp. 244, 249-57

(M.D. Fla. 1979) aff’d in part and vacated in part, 644 F.2d 397 (5th Cir. 1981).
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 73

APPENDIX B: Glossary of Test

Measurement Terms

This glossary is provided as a plain language reference to assist readers in understanding

commonly used test measurement terms used in this guide or terms relevant to issues

discussed in the guide. For additional relevant information, readers are encouraged to

review the Glossary in the Joint Standards, as well as the appropriate chapters in the Joint

Standards.

Accommodation—A change in how a test is presented, in how a test is administered, or

in how the test taker is allowed to respond. This term generally refers to changes that do

not substantially alter what the test measures. The proper use of accommodations does

not substantially change academic level or performance criteria. Appropriate

accommodations are made in order to level the playing field, i.e., to provide equal

opportunity to demonstrate knowledge.

Achievement level/ proficiency levels—Descriptions of a test taker’s competency in

a particular area of knowledge or skill, usually defined as ordered categories on a

continuum, often labeled from “basic” to “advanced,” that constitute broad ranges for

classifying performance.

Alternate assessment—An assessment designed for those students with disabilities

who are unable to participate in general large-scale assessments used by a school district

or state, even when accommodations or modifications are provided. The alternate

assessment provides a mechanism for students with even the most significant disabilities

to be included in the assessment system.

Assessment—Any systematic method of obtaining information from tests or other

sources, used to draw inferences about characteristics of people, objects, or programs.

Bias—In a statistical context, a systematic error in a test score. In discussing test fairness,

bias may refer to construct underrepresentation or construct irrelevant components of test

scores. Bias usually favors one group of test takers over another.

Bilingual—The characteristic of being relatively proficient in two languages.

Classification accuracy—The degree to which neither false positive nor false negative

categorizations and diagnoses occurs when a test is used to classify an individual or event.

Composite score—A score that combines several scores according to a specified

formula.
The Use of Tests as Part of High-Stakes Decision-Making for Students:

74 A Resource Guide For Educators and Policy-Makers

Content areas—Specified subjects in education, such as language arts, science,

mathematics, or history.

Content domain—The set of behaviors, knowledge, skills, abilities, attitudes or other

characteristics to be measured by a test, represented in a detailed specification, and often

organized into categories by which items are classified.

Content standard—Statements which describe expectations for students in a subject

matter at a particular grade or at the completion of a level of schooling.

Content validity—Validity evidence which analyzes the relationship between a test’s

content and the construct it is intended to measure. Evidence based on test content includes

logical and empirical analyses of the relevance and representativeness of the test content

to the defined domain of the test and the proposed interpretations of test scores.

Construct—The concept or the characteristic that a test is designed to measure.

Construct equivalence—1. The extent to which the construct measured by one test is

essentially the same as the construct measured by another test. 2. The degree to which a

construct measured by a test in one cultural or linguistic group is comparable to the construct

measured by the same test in a different cultural or linguistic group.

Construct irrelevance—The extent to which test scores are influenced by factors that

are irrelevant to the construct that the test is intended to measure. Such extraneous factors

distort the meaning of test scores from what is implied in the proposed interpretation.

Constructed response item—An exercise for which examinees must create their own

responses or products rather than choose a response from an enumerated set. Shortanswer items require a few words or a number as an answer, whereas extended-response

items require at least a few sentences.

Construct underrepresentation—The extent to which a test fails to capture important

aspects of the construct that the test is intended to measure. In this situation, the meaning

of test scores is narrower than the proposed interpretation implies.

Criterion validity—Validity evidence which analyzes the relationship of test scores to

variables external to the test. External variables may include criteria that the test is expected

to be associated with, as well as relationships to other tests hypothesized to measure the

same constructs and tests measuring related constructs. Evidence based on relationships

with other variables addresses questions about the degree to which these relationships are

consistent with the construct underlying the proposed test interpretations. See Predictive

validity.
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 75

Criterion-referenced—Scores of students referenced to a criterion. For instance, a

criterion may be specific, identified knowledge and skills that students are expected to

master. Academic content standards in various subject areas are examples of this type of

criterion.

Criterion-referenced test—A test that allows its users to make score interpretations in

relation to a functional performance level, as distinguished from those interpretations that

are made in relation to the performance of others. Examples of criterion-referenced

interpretations include comparison to cut scores, interpretations based on expectancy tables,

and domain-referenced score interpretations.

Cut score—A specified point on a score scale, such that scores at or above that point are

interpreted or acted upon differently from scores below that point. See Performance

standard.

Discriminant validity—Validity evidence based on the relationship between test scores

and measures of different constructs.

Error of measurement—The difference between an observed score and the

corresponding true score or proficiency. This unintended variation in scores is assumed

to be random and unpredictable and impacts the estimate of reliability of a test.

False negative—In classification, diagnosis, or selection, an error in which an individual

is assessed or predicted not to meet the criteria for inclusion in a particular group but in

truth does (or would) meet these criteria.

False positive—In classification, diagnosis, or selection, an error in which an individual

is assessed or predicted to meet the criteria for inclusion in a particular group but in truth

does not (or would not) meet these criteria.

Field test—A test administration used to check the adequacy of testing procedures,

generally including test administration, test responding, test scoring, and test reporting.

A field test is generally more extensive than a pilot test. See Pilot test.

High-stakes decision for students—A decision whose result has important

consequences for students.

Internal consistency estimate of reliability—An index of the reliability of test

scores derived from the statistical interrelationships of responses among item responses

or scores on separate parts of a test.

Inter-rater agreement—The consistency with which two or more judges rate the

work or performance of test takers; sometimes referred to as inter-rater reliability.
The Use of Tests as Part of High-Stakes Decision-Making for Students:

76 A Resource Guide For Educators and Policy-Makers

Local evidence—Evidence (usually related to reliability or validity) collected for a specific

and particular set of test takers in a single institution, district, or state, or at a specific location.

Local norms—Norms by which test scores are referred to a specific, limited reference

population of particular interest to the test user (such as institution, district, or state); local

norms are not intended as representative of populations beyond that setting.

Norm-referenced—Scores of students compared to a specified reference population.

Norm-referenced test—A test that allows its users to make score interpretations of a test

taker’s performance in relation to the performance of other people in a specified reference

population.

Norms—Statistics or tabular data that summarize the distribution of test performance for

one or more specified groups, such as test takers of various ages or grades. The group of

examinees represented by the norms is referred to as the reference population. Norm

reference populations can be a local population of test takers, e.g. from a school, district or

state, or it can represent a larger population, such as test takers from several states or

throughout the country.

Percentile rank—Most commonly, the percentage of scores in a specified distribution

that fall below the point at which a given score lies. Sometimes the percentage is defined

to include scores that fall at the point; sometimes the percentage is defined to include half

of the scores at the point.

Performance assessments—Product- and behavior-based measurements based on

settings designed to emulate real-life contexts or conditions in which specific knowledge

or skills are actually applied.

Performance standard—1. An objective definition of a certain level of performance in

some domain in terms of a cut score or a range of scores on the score scale of a test

measuring proficiency in that domain. 2. A statement or description of a set of operational

tasks exemplifying a level of performance associated with a more general content standard;

the statement may be used to guide judgements about the location of a cut score on a

score scale. The term often implies a desired level of performance. See Cut scores.

Pilot test—A test administered to a representative sample of test takers to try out some

aspects of the test or test items, such as instructions, time limits, item response formats, or

item response options. See Field test.

Portfolio assessments—A systematic collection of educational or work products that

have been compiled or accumulated over time, according to a specific set of principles.

Precision of measurement—A general term that refers to a measure’s sensitivity to

error of measurement.
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 77

Predictive validity—Validity evidence that analyzes the relationship of test scores to

variables external to the test that the test is expected to predict. Predictive evidence indicates

how accurately test data can predict criterion scores that are obtained or outcomes that

occur at a later time. See Criterion evidence of validity; False positive error; False negative

error.

Random error—An unsystematic error; a quantity (often observed indirectly) that appears

to have no relationship to any other variable.

Reference population—The population of test takers represented by test norms. The

sample on which the test norms are based must permit accurate estimation of the test score

distribution for the reference population. The reference population may be defined in

terms of size of the population (local or larger), examinee age, grade, or clinical status at

time of testing, or other characteristics.

Reliability—The degree to which test scores for a group of test takers are consistent over

repeated applications of a measurement procedure and hence are inferred to be

dependable and repeatable for an individual test taker; the degree to which scores are

free of errors of measurement for a given group.

Sample—A selection of a specified number of entities called sampling units (test takers,

items, schools, etc.) from a large specified set of possible entities, called the population. A

random sample is a selection according to a random process, with the selection of each

entity in no way dependent on the selection of other entities. A stratified random sample

is a set of random samples, each of a specified size, from several different sets, which are

viewed as strata of the population.

Sampling from a domain—The process of selecting test items to represent a specified

universe of performance.

Score—Any specific number resulting from the assessment of an individual; a generic

term applied for convenience to such diverse measures as test scores, absence records,

course grades, ratings, and so forth.

Scoring rubric—The established criteria, including rules, principles, and illustrations,

used in scoring responses to individual items and clusters of items. The term usually refers

to the scoring procedures for assessment tasks that do not provide enumerated responses

from which test takers make a choice. Scoring rubrics vary in the degree of judgement

entailed, in the number of distinct score levels defined, in the latitude given scorers for

assigning intermediate or fractional score values, and in other ways.

Selection—A purpose for testing that results in the acceptance or rejection of applicants

for a particular educational opportunity.
The Use of Tests as Part of High-Stakes Decision-Making for Students:

78 A Resource Guide For Educators and Policy-Makers

Sole criterion—When only one standard (such as a test score) is used to make a

judgement or a decision. This can include a step-wise decision-making procedure where

students must reach or exceed one criterion (such as a cut score of a test) independent of

or before other criteria can be considered.

Speed test—A test in which performance is measured primarily or exclusively by the

time to perform a specified task, or the number of tasks performed in a given time, such as

tests of typing speed and reading speed.

Standards-based assessment—Assessments intended to represent systematically

described content and performance standards.

Systematic error—A score component (often observed indirectly), not related to the

test performance, that appears to be related to some salient variable or sub-grouping of

cases in empirical analyses. This type of error tends to increase or decrease observed

scores consistently in members of the subgroup or levels of the salient variable. See Bias.

Technical manual—A publication prepared by test authors and publishers to provide

technical and psychometric information on a test.

Test—An evaluative device or procedure in which a sample of an examinee’s behavior

in a specified domain is obtained and subsequently evaluated and scored using a

standardized process.

Test developer—The person(s) or agency responsible for the construction of a test and

for the documentation regarding its technical quality for an intended purpose.

Test development—The process through which a test is planned, constructed, evaluated

and modified, including consideration of content, format, administration, scoring, item

properties, scaling, and technical quality for its intended purpose.

Test documents—Publications such as test manuals, technical manuals, user’s guides,

specimen sets, and directions for test administrators and scorers that provide information

for evaluating the appropriateness and technical adequacy of a test for its intended purpose.

Test manual—A publication prepared by test developers and publishers to provide

information on test administration, scoring, and interpretation and to provide technical

data on test characteristics.

Validation—The process through which the validity of the proposed interpretation of

test scores is evaluated.

Validity—The degree to which accumulated evidence and theory support specific

interpretations of test scores entailed by proposed uses of a test.
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 79

Validity argument—An explicit scientific justification of the degree to which accumulated

evidence and theory supports the proposed interpretation(s) of test scores.

Validity evidence—Systematic documentation that empirically or theoretically

demonstrates, under the specific conditions of the individual analysis, to which extent, for

whom, and in which situations test score inferences are valid. No single piece of evidence

is sufficient to document validity of test scores; rather, aspects of validity evidence must be

accumulated to support specific interpretations of scores.

Validity evidence for relevant subgroups—Validity results disaggregated by

subgroups, such as by race/ethnicity, or by disability or limited English proficiency status.

This type of evidence is appropriate generally when credible research suggests that

interpretations of the test scores may differ by subgroup. For instance, if a test will be used

to predict future performance, validity evidence should document that the scores are as

valid a predictor of the intended performance for one subgroup as for another.
The Use of Tests as Part of High-Stakes Decision-Making for Students:

80 A Resource Guide For Educators and Policy-Makers
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 81

APPENDIX C: Accommodations Used

by States

This Appendix lists many of the accommodations used in large-scale testing for limited

English proficient students and students with disabilities. The list is not meant to be

exhaustive, and its use in this document should not be seen as an endorsement of any

specific accommodations. Rather, the Appendix is meant to provide examples of the

types of accommodations that are being used with limited English proficient students and

students with disabilities.

Table 1

Accommodations for Limited English Proficient Students

PRESENTATION FORMAT

Translation of directions into native language

Translation of test into native language

Bilingual version of test (English and native language)

Further explanation of directions

Plain language editing

Use of word lists/ dictionaries

Bilingual dictionary

Large print

ADMINISTRATION FORMAT

Oral reading in English

Oral reading in native language

Person familiar to students administers test

Clarification of directions

Use of technology

Alone, in study carrel

Separate room

With small group

Extended testing time

More breaks

Extending sessions over multiple days
The Use of Tests as Part of High-Stakes Decision-Making for Students:

82 A Resource Guide For Educators and Policy-Makers

RESPONSE FORMAT

Allow student to respond in writing in native language

Allow student to orally respond in native language

Allow student to orally respond in English

Use of technology

OTHER

Out-of-level testing

Alternate scoring of writing test

Adapted from: Council of Chief State School Officers, Annual Survey: State Student Assessment Programs,

Washington D.C., 1999

Table 2

Accommodations for Students with Disabilities

PRESENTATION FORMAT

Braille edition

Large-print editions

Templates to reduce visual field

Short-segment testing booklets

Key words highlighted in directions

Reordering of items

Use of spell checker

Use of word lists/dictionaries

Translated into sign language

ADMINISTRATION FORMAT

Oral reading of questions

Use of magnifying glass

Explanation of directions

Audiotape directions or test items

Repeating of directions

Interpretation of directions

Videotape in American Sign Language

Interpreter signs test in front of classroom/student

Signing of directions

Amplification equipment

Enhanced lighting

Special acoustics

Alone in study carrel
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 83

Individual administration

In small groups

At home with appropriate supervision

In special education classes separate room

Off campus

Interpreter with teacher facing student; student in front of classroom

Adaptive furniture

Use place marker

Hearing aids

Student wears noise buffers

Administrator faces student

Specialized table

Auditory trainers

Read questions aloud to self

Colored transparency

Assist student in tracking by placing students finger on item

Typewriter device to screen out sounds

Extended testing time

More breaks

Extending sessions over multiple days

Altered time of day that test is administered

RESPONSE FORMAT

Mark responses in booklet

Use template for recording

Point to response

Lined paper

Use sign language

Use typewriter/computer/ word processor

Use Braille writer

Oral response, use of scribe

Alternative response methods, use of scribe

Answers recorded on audiotape

Administrator checks to ensure that student is placing responses in correct area

Lined paper for large script printing

Communication board

OTHER

Out-of-level testing

Adapted from: Council of Chief State School Officers, Annual Survey: State Student Assessment Programs,

Washington D.C., 1999
The Use of Tests as Part of High-Stakes Decision-Making for Students:

84 A Resource Guide For Educators and Policy-Makers
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 85

APPENDIX D: Compendium of Federal

Statutes and Regulations

This compendium provides a description of the federal nondiscrimination statutes and

regulations that are relevant to testing issues and constitute the primary sources of legal

authority in the guide. Specifically, this appendix primarily provides information about

pertinent federal laws, including Title VI, Title IX, Section 504, Title II of the Americans

with Disabilities Act, and the Individuals with Disabilities Education Act.

 A. Title VI

Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, prohibits race and national

origin discrimination by recipients of federal financial assistance. For the regulations

issued by the Department of Education implementing Title VI, see 34 C.F.R. Part 100.

Under the Civil Rights Restoration Act of 1987, OCR has institutionwide jurisdiction over

the recipient of federal funds. 42 U.S.C. § 2000d(4) (1989).

The Title VI statute bars only intentionally discriminatory conduct. However, the regulations

promulgated under Title VI prohibit the use of neutral criteria having disparate effects

unless the criteria are educationally justified and there are no alternative practices available

that are equally effective in serving the institution’s goals and result in less disparate effects.

See Guardians Ass’n v. Civil Service Comm’n, 463 U.S. 582 (1983).

The regulations implementing Title VI do not specifically address the use of tests and

assessment procedures, but bar discrimination based on race, color or national origin in

any service, financial aid or other benefit provided by the recipient. The provision of the

Title VI regulation that prohibits criteria or methods of administration that is often applied

in testing cases have the effect of discriminating based on race, color, or national origin.

34 C.F.R. § 100.3(b)(2).

See also 34 C.F.R. § 100, Appendix B, Part K (Guidelines for Eliminating Discrimination

and Denial of Services on the Basis of Race, Color, National Origin, Sex, and Handicap in

Vocational Education Programs) (“if a recipient can demonstrate that criteria [that

disproportionately exclude persons of a particular race, color, national origin, sex, or

disability] have been validated as essential to participation in a given program and that

alternative equally valid criteria that do not have such a disproportionate adverse effect

are unavailable, the criteria will be judged nondiscriminatory. Examples of admission

criteria that must meet this test or assessment procedure are . . . interest inventories . . . and

standardized test or assessment procedures”).
The Use of Tests as Part of High-Stakes Decision-Making for Students:

86 A Resource Guide For Educators and Policy-Makers

B. Title IX

Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq., prohibits sex

discrimination by recipients of federal financial assistance. For the regulations issued by

the Department of Education implementing Title IX, see 34 C.F.R. Part 106. As under

Title VI, OCR, per the Civil Rights Restoration Act of 1987, has institutionwide jurisdiction

over the recipient of federal funds. 42 U.S.C. § 2000d(4) (1989).

In addition to general prohibitions against discrimination, the regulations implementing

Title IX specifically prohibit the discriminatory use of test or assessment procedures in

admissions, 34 C.F.R. § 106.21, employment, 34 C.F.R. § 106.52, and counseling 34

C.F.R. § 106.36.

See also 34 C.F.R. § 100, Appendix B, part K (Guidelines for Eliminating Discrimination

and Denial of Services on the Basis of Race, Color, National Origin, Sex, and Handicap in

Vocational Education Programs), discussed above in relation to Title VI.

C. Section 504 of the Rehabilitation Act of 1973

Section 504 prohibits discrimination by recipients of federal financial assistance. OCR

enforces Section 504 and its regulations in education programs. The regulations

implementing Section 504 contain certain sections that are particularly relevant to testing

situations:

34 C.F.R. § 104.4(b)(4) prohibits criteria or methods of administration that have the effect

of discriminating against qualified persons with disabilities.

34 C.F.R. § 104.42(b)(2) prohibits admissions procedures by higher educational institutions

that make use of any test or criterion for admission that has a disproportionate, adverse

impact on qualified individuals with disabilities unless (1) the test or criterion, as used by

the institution, has been validated as a predictor of success in the education program or

activity and (2) alternate tests or criteria that have a less disproportionate, adverse impact

are not shown to be available. 34 C.F.R. § 104.42(b)(3) requires admissions tests used

by post-secondary institutions to be selected and administered so as best to ensure that,

when a test is administered to an applicant with a disability, the test results accurately

reflect the applicant’s aptitude or achievement, rather than reflecting the student’s disability

(except where disability-related skills are the factors the test purports to measure). 34

C.F.R. §§ 104.44(a) and 104.44(d) require higher education institutions to provide

adjustments or accommodations and auxiliary aids and services that enable the student to

demonstrate the knowledge and skills being tested.

34 C.F.R. § 104.44(a) states that academic requirements that the institution can demonstrate

are essential to the program of instruction or to any directly related licensing requirement

will not be regarded as discriminatory.
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 87

34 C.F.R. § 104.35(b) requires public elementary and secondary education programs to

individually evaluate a student before classifying the student as having a disability or

placing the student in a special education program; tests used for this purpose must be

selected and administered so as best to ensure that the test results accurately reflect the

student’s aptitude or achievement or other factor being measured rather than reflecting

the student’s disability, except where those are the factors being measured. These provisions

also require that tests and other evaluation materials include those tailored to evaluate the

specific areas of educational need and not merely those designed to provide a single

intelligence quotient.

D. Title II of the Americans with Disabilities Act (ADA)

Title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12134, prohibits

discrimination on the basis of disability by public entities. Regulations implementing Title

II, issued by the U.S. Department of Justice, can be found at 28 C.F.R. Part 35. OCR

enforces Title II as to public schools and colleges. Like the Section 504 regulations, the

regulations implementing Title II prohibit “criteria and methods of administration which

have the effect of discriminating” against qualified persons with disabilities. See 28 C.F.R.

§ 35.130(b)(3). The regulations also require public entities to make reasonable

accommodations to policies, procedures, and practices when the modifications are

necessary to avoid discrimination unless the public entity can demonstrate that the

modification would fundamentally alter the nature of the service, program, or activity. 28

C.F.R. § 35.130(b)(7).

E. Individuals with Disabilities Education Act (IDEA)

The Individuals with Disabilities Education Act (IDEA) contains important provisions related

to testing students with disabilities in elementary and secondary schools. IDEA is enforced

by the Office of Special Education Programs in the U.S. Department of Education. As

amended in 1997, IDEA requires inclusion of students with disabilities in state- and

districtwide assessment programs, with appropriate accommodations, if necessary, unless

the student’s individual education team decides that participation in all or part of the

testing program is not appropriate. The student’s individualized education program (IEP)

should also state any individual modifications in the administration of state- or districtwide

assessments of student achievement that are needed in order for the student to participate

in such assessment. If the IEP team determines that the student will not participate in a

particular state- or districtwide assessment of student achievement (or part of such an

assessment), the student’s IEP must include statements of why that assessment is not

appropriate for the student and how the student will be assessed. IDEA also requires state

or local education agencies to develop guidelines for the alternate assessment of the

relatively small number of students with disabilities who cannot take part in state- and

districtwide tests to participate in alternate assessments. These alternate assessments must

be developed and conducted not later than July 1, 2000. 20 U.S.C. §§ 1412(a)(16) and

(17), 1413(a)(6), 1414(d)(1)(A) and (d)(6)(A)(ii); 34 C.F.R. §§ 300.138, 300.139, 300.240,

300.347.
The Use of Tests as Part of High-Stakes Decision-Making for Students:

88 A Resource Guide For Educators and Policy-Makers
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 89

APPENDIX E: Resources and References

Office for Civil Rights

U.S. Department of Education

Minority Students and Special Education: Legal Approaches for Investigation (1995).

Provides an overview of the legal theories and approaches employed in OCR investigations

examining disproportionate representation of minority students in special education.

Policy Update on Schools’ Obligations Toward National Origin Minority Students With

Limited-English Proficiency (1991).

Used by OCR staff to determine schools’ compliance with their Title VI obligation to provide

any alternative language programs necessary to ensure that national-origin-minority students

with limited English proficiency have meaningful access to programs. Provides additional

guidance for the December 1985 and May 1970 memoranda.

The Office for Civil Rights’ Title VI Language-Minority Compliance Procedures (1985).

Focuses on the treatment of limited English proficient students in programs that received

funds from the Department.

Identification of Discrimination and Denial of Services on the Basis of National Origin

(May 1970) 35 Fed. Reg. 11595.

Clarifies school district responsibilities to limited English proficient students. Memo was

the foundation for the U.S. Supreme Court decision Lau v. Nichols and was affirmed in

that decision.

Office of Elementary and Secondary Education

U.S. Department of Education

Peer Reviewer Guidance for Evaluating Evidence of Final Assessments Under Title 1 of

the Elementary and Secondary Education Act (ESEA) (1999).

Informs the states about types of evidence that would be useful in determining the evaluation

of assessments under Title 1.

Taking Responsibility for Ending Social Promotion (1999).

Provides strategies for preventing academic failure and gives information about how these

strategies can be sustained through ongoing support for improvement.

Handbook for the Development of Performance Standards: Meeting the Requirements

of Title 1 (with Council of Chief State School Officers) (1998).

Describes the best practices and current research on the development of academic

performance standards for K-12.

Standards, Assessments and Accountability (1997).

Overview of the major provisions under Title 1 of the Elementary and Secondary Education

Act.
The Use of Tests as Part of High-Stakes Decision-Making for Students:

90 A Resource Guide For Educators and Policy-Makers

National Research Council

National Academy Press, Washington D.C.

High Stakes: Testing for Tracking, Promotion and Graduation (Jay P. Heubert & Robert

M. Hauser eds., 1999).

Discusses how tests should be planned, designed, implemented, reported and used for a

variety of educational policy goals. Focuses on the uses of tests that make high-stake

decisions about individuals and on how to ensure appropriate test use.

Myths and Tradeoffs: The Role of Tests in Undergraduate Admissions (Alexandra Beatty,

M.R.C. Greenwood & Robert L. Linn eds., 1999).

Four recommendations regarding test use for admission are made to colleges and

universities, including a warning to schools to avoid using scores as more precise and

accurate measures of college readiness than they are. One recommendation is made to

test producers, which is to make clear the limitations of the information that the scores

provide.

Testing, Teaching and Learning: A Guide for States and School Districts ( Richard F. Elmore

& Robert Rothman eds., 1999).

Practical guide to assist states and school districts in developing challenging standards for

student performance and assessment as specified by Title I. Discusses standards-based

reform and specifies components of an education improvement system, which are

standards, assessments, accountability and monitoring the conditions of instruction.

Improving America’s Schooling for Language Minority Children: A Research Agenda

(Diane August & Kenji Hakuta eds., 1997).

Summary of the schooling and assessment of extensive study of limited English proficient

students. Gives state of knowledge review and identifies research agenda for future study.

Includes discussion of student assessment and program evaluation.

Educating One and All: Students with Disabilities and Standards-Based Reform (Lorraine

M. McDonnell, Margaret J. McLaughlin & and Patricia Morison eds., 1997).

Twelve recommendations are given regarding how to integrate students with disabilities

in standards-based reform, including: participation of students with disabilities should be

maximized; that any test alterations must be individualized and have a compelling

educational justification; include these students’ test results in any accountability system;

ensure opportunity for students with disabilities to learn the material tested; and use the

IEP process for decision-making on the participation of individual students.

Recommendations for policy-makers include: revising policies that discourage the inclusion

of students with disabilities in high-stake tests; giving parents enough information to make

informed choices about participation; monitoring possible unanticipated consequences

of participation, both for standardized testing and for students with disabilities; designing

realistic standards; and designing a long-term research agenda.
The Use of Tests as Part of High-Stakes Decision-Making for Students:

A Resource Guide For Educators and Policy-Makers 91

The Use of I.Q. Tests in Special Education Decision-Making and Planning: Summary of

Two Workshops (Patricia Morison, S.H. White & Michael J. Feuer eds., 1996).

Report provides a synthesis of the key themes and ideas discussed at workshops, including:

an overview of legal, policy and measurement issues in use of I.Q. tests in special education;

validity and fairness of I.Q. testing for student classification and placement; alternative

assessment methods used in combination with or as substitutes for I.Q. tests.

Responsible Test Use: Case Studies for Assessing Human Behavior (Lorraine D. Hyde,

Gary J. Robertson & Samuel E. Krug, et al., eds., 1993).

Casebook for professionals using educational and psychological test data, which was

developed to apply principles to proper test interpretation and actual test use. Cases are

organized under eight sections: general training, professional responsibility training, test

selection, test administration, test scoring and norms, test interpretation, reporting to clients

and administrative or organization policy issues.

Test Measurement Standards

American Educational Research Association, American Psychological Association &

National Council on Measurement in Education, Standards of Educational and

Psychological Testing (1999).

Provides criteria for the evaluation of tests, testing practices, and the effects of test use.

Begins with discussion of the test development process, which focuses on test developers,

and moves to specific test uses and applications, which focus on test users. One chapter

centers on test takers.

National Council on Measurement in Education, Code of Professional Responsibilities in

Educational Measurement (1995).

Association for Measurement and Evaluation in Counseling and Development,

Responsibilities of Users of Standardized Tests (1992).

Joint Committee on Testing Practices, Code of Fair Testing Practices in Education (1988).

Measurement Texts

Educational Measurement (Robert L. Linn, ed., 3rd ed. 1989).

Includes 11 chapters, including Messick’s classic chapter on validity, and organizes them

in two parts: theory and general principles; and construction, administration and scoring.

Samuel Messick, Validity of Psychological Assessment: Validation of Inferences from

Persons’ Responses and Performances as Scientific Inquiry into Score Meaning, American

Psychologist 50(9) (September 1995).
The Use of Tests as Part of High-Stakes Decision-Making for Students:

92 A Resource Guide For Educators and Policy-Makers

Gives a new cohesive definition of validity that looks at score meaning and social values.

Six perspectives of construct validity are defined: content, substantive, structural,

generalizability, external and consequential.

Martha Thurlow, Judy Elliott & Jim Ysseldyke, Testing Students With Disabilities (1998).

This document provides guidance about how students with disabilities should be included

in large-scale tests, considerations about how to select the appropriate accommodations

for which students, and discussions about the role of state and local educators in ensuring

proper test use, the use of alternate tests, and appropriate reporting considerations.

Rebecca J. Kopriva, Council of Chief State School Officers, Ensuring Accuracy in Testing

for English Language Learners (2000).

This resource provides guidance to states, districts, and test publishers about developing,

selecting, or adapting large-scale, standardized assessments of educational achievement

that are appropriate and valid for English language learners. The guide’s practical

recommendations identify the “who, what, when, why and how” associated with

developing, selecting, or adapting tests for institution use, including how to select the

appropriate accommodations for which students, how to collect appropriate validity

evidence, and a discussion of salient reporting considerations.

Test Publisher Materials

Most test publishers produce materials that explain the appropriate use of their tests. We

encourage interested readers to obtain these materials from the publishers of the tests they

administer or from publishers of tests in which they are interested. Readers can also contact

the Association of Test Publishers, 655 15th St. NW, Washington, D.C., 20005, telephone

202-857-8444 for more information.

Other Resources

There are many books and other materials that might be helpful to educators and policymakers as they develop policies, and design and implement programs which include the

use of tests in making high-stakes decisions for students. The following web sites will

provide additional information and links to some of these resources.

Council for Chief State School Officers

http://www.CCSSO.org

The National Center on Education Outcomes

http://www.coled.umn.edu/NCEO

Center for Evaluation, Research, Standards and Student Testing

http://cresst96.cse.ucla.edu

National Clearinghouse for Bilingual Education

http://www.ncbe.gwu.edu