Government Policies Aimed at Social Racism
We began our research with the stark statistic that African Americans consistently score fifteen points lower, on average, than white Americans on standardized IQ tests (Kaplan 1997, 536). Discrepancy in test scores fall along race lines not only in IQ, but in many other forms of standardized testing as well. The key question is not whether or not the discrepancy exists, since that is an indisputable statistic; rather, experts have been frantically trying to discover why. Some believe that there are biases within the test (see Issues and Options) while others have argued that there are innate, genetic differences which are reliably measured by and reflected in test scores (see The Nature vs. Nurture Debate).

However we view these questions, there is an unavoidable emphasis placed on these test scores in terms of job opportunity, tracking and placement within school programs, and in college entrance criteria. If African Americans score consistently lower on tests that may not be valid, are they not being denied equal opportunity in all of these areas? Some argue that one probably cannot ever produce a completely unbiased test. It is from this starting point that legislation, policy, and court cases seek to help remedy the problem. Perhaps the only means toward evening out the playing ground exists outside of the test, and the responsibility now rests on the shoulders of the government. This part of the site has two main areas of examination - equal opportunity in employment and equal opportunity in education.

Equal Opportunity in Employment

Summaries and/or Implications of:

The 14th Amendment of the Constitution of the United States of America guarantees equal protection. Title VII of the Civil Rights Act of 1964, implements the 14th Amendment as a vehicles to procure equal opportunity. This law has been interpreted numerous times in the Supreme Court . In the following cases, the courts have been faced with cases involving disparate impact. The Supreme Court has ruled that any procedure, by which a significantly disproportionate number of jobs is awarded to one racial group over another, may violate the 14th Amendment. Because there has been so much debate over the possibility of biases in standardized tests, which serve in employment selection procedures, the possibility of a violation of the 14th amendment exists.

The second area of examination is in Equal Opportunity in Education. Here we track the movement toward guaranteeing equal opportunity within the classroom. With the psychological studies about the effects of teacher expectancies as a backdrop, we explore court cases that have made rulings on the legality of using standardized tests as placement agents within the school. We also briefly look at admission policies into colleges and universities. Here we compare quotas with affirmative action programs, and examine the legality of these policies as ruled by the courts.

Amendment XIV of the Constitution of the United States of America (1868)

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.

The Civil Rights Act of 1964 and the EEOC Guidelines

A significant piece of legislation that sets out to help identify the conditions under which one can claim equal protection and due process as guaranteed in the 14th Amendment is the Civil Rights Act of 1964. Title VII of this Act lead to the establishment of the Equal Employment Opportunity Commission (EEOC) who created a set of guidelines for employment selection procedures. In 1978 they were revised and published as The Uniform Guidelines on Employee Selection Procedures. The purpose of the guidelines is to help employers comply with the federal law which prohibits discriminatory employment practices. This essentially means that an employer cannot discriminate on the basis of race color, gender, national origin, or religion.

Defining exactly what constitutes a discriminatory practice can be difficult. Although it may seem like a reverse line of reasoning, one way is by looking at the resulting distributions. In other words, a selection procedure (including standardized testing) that yields a disproportionate number of white employees compared to black, may be open to question of the possibility of discriminatory selection procedures. In legal terms, this is called "disparate impact." Many court cases, most notably Washington v Davis, grapple with defining what constitutes adverse impact. Adverse impact means that a selection procedure has a negative effect on a racial group. Often, disparate impact, meaning disproportionate hiring results, is used as a means to prove adverse impact, meaning bad effects on a group. Questions arise not only concerning a definition, but also about where the burden of proof lies in proving adverse impact, and in considering the role of intent or lack thereof in discrimination. A crucial underlying question seems to be whether or not we can reasonably question the validity of a procedure based on result. Is it really possible to be able to detect a discriminatory practice based on a resulting distribution? In other words, if an employer hires thirty employees and only two of them are African American, does that suggest that the hiring practice must be discriminatory? The Supreme Court, in Washington v Davis, said that the disproportionate impact has to be significant in order to be considered discriminatory. More importantly, the existence of disparate impact does not necessarily prove discrimination; it is only the first step.

One of the reasons a disparate impact may occur in a job selection procedure is the use of an unfair test. Perhaps the most important aspect of the Civil Rights Act of 1964 in relation to testing is the guidelines structured around the use of tests as a selection procedure. EEOC says that the tests must be measuring skills and knowledge that are representative of job specific tasks and performance. The guidelines state:

Evidence of the validity of a test of others selection procedure by a criterion-related validity study should consist of empirical data demonstrating the selection of procedure is predicative of or significantly correlated with the important elements of job performance. (Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. pt. 1607.7 (1996))

That the government may regulate these tests and set forth these guidelines is testimony to the discrepancy in the scores along race lines.

Defining Adverse Impact

One way of determining adverse impact is through a component of the guidelines called the four-fifths rule. The guidelines state:

A selection rate for any race, sex or ethnic group which is less than four-fifths (or eighty percent) of the rate of the group with the highest rate will generally be regarded by federal enforcement agencies as evidence of adverse impact. (Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. pt. 1607.3 (1996))

In other words, if whites possess four-fifths or more of the available jobs in a work force, the selection procedure can be considered to be having an adverse impact. (See Washington v Davis for more on adverse impact as defined in the court).

Burden of Proof

Among other things, the Guidelines suggest that it is initially the responsibility of the employee to accuse the employer of a practice that has resulted in disparate impact. The burden then shifts to the employer to defend the practice in question. It states,

An unlawful employment practice based on disparate impact is established under this subchapter only if:

a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity. (Uniform Guidelines on Employment Selection Procedures, 29 C.F.R. pt. 1607 1996))

The question of whose burden it should be to prove a discriminatory procedure is one that has found its way into the courts in both Griggs v Duke Power and Wards Cove Packing v Antonio. It has been argued that the burden should not rest on the employee because he/she may not know enough about employment procedures to have a fair chance at successfully challenging them. This issue has not yet been resolved.

The following cases are all disparate impact cases. Washington v Davis and Griggs v Duke Power both examine the possibility of disparate impact as a result of testing. The plaintiffs argue that they are being denied equal opportunity because of unfair or invalid tests and hiring procedures. Wards Cove Packing v Antonio is also essentially a disparate impact case, but there is no specific reference to the use of testing as cause of the disparate impact. The most important part of this case, however, is that the Supreme Court shifts the burden of proof from the employer to the employee, reversing the decision from Griggs.

Court Cases

Washington v Davis (1976)

This case involves the question of the validity of a test administered to those applying for positions on the police force in the District of Columbia. The test, "Test 21," is one that is used throughout the federal service and designed to measure verbal skills, vocabulary, reading and comprehension.

The Supreme Court found that there was not sufficient evidence to prove that the tests were not related to the job. In addition, because the test is administered throughout the federal service, the results of the District of Columbia are too small to make a ruling. Most importantly, the court set a loose standard regarding the assessment of disparate impact and regarding impact of intent. Judge Stevens says,

My point is to suggest that the line between discriminatory purpose and discriminatory impact is not nearly as bright, and perhaps not quite as critical, as the reader of the Court's opinion might assume. I agree that a constitutional issue does not arise every time some disproportionate impact is shown. (426 U.S. 229, 96 S Ct. 2040, 48 L.Ed. 2d 597 (1976))

Stevens goes on to say that there must be a significant disparate impact in order to suggest discrimination. In all cases there must be intent in order to prove or suggest discrimination This court rules that if the disparate impact is large enough, then intent is implied. It is important to notice that the term,"dramatic" disproportions is still vague.

Griggs v Duke Power Co. (1971)

This case attempts to answer the question of whether or not an employer is prohibited from requiring a high school education and/or the passing of a standard intelligence test as a means toward employment under Title VII of the Civil Rights Act of 1964. Prior to the Civil Rights Act, Duke Power Company had five departments. African Americans were only permitted to work in the Labor Department, which was the lowest paying department of the five. After the Civil Rights Act, African Americans employees were allowed entrance into the other departments, but only upon successful completion of high school and satisfactory scoring on two professionally prepared aptitude tests. Neither the tests nor the high school diploma were intended to measure job specific skills.

After going to the District Court and the Court of Appeals, the case eventually found its way to the Supreme Court. The court found that neither the high school diploma nor the general intelligence tests demonstrated a significant relationship to successful job performance. Justice Burger wrote:

The objective of Congress in the enactment of Title VII is plain from the language of the statute. It was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to "freeze" the status quo of prior discriminatory employment practices" (Griggs v Duke Power, 401 U.S. 424, 431 (1971))

Justice Burger also pointed out that African Americans had long received inferior education, and that the petitioners were at a disadvantage on the tests. He also stated, however, that a person may not be hired simply because he or she was subject to past discrimination. Lastly, although the Supreme Court did not disagree with the lower courts over the employers lack of direct intent to discriminate, the Supreme Court ruled that the intent was implied because of the overwhelming adverse impact on African Americans.

Wards Cove Packing v Antonio (1989)

This case involves a situation similar to that of Griggs v Duke Power. An Alaskan salmon cannery offered two types of jobs: unskilled cannery jobs and skilled noncannery jobs. The two departments were apparently racially stratified. Nonwhites generally held the lower paying, unskilled jobs, and the white employees generally held that higher paying, skilled jobs. A group of the nonwhite employers filed suit under Title VII of the Civil Rights Act of 1964, claiming that they had been denied the opportunity to work as skilled laborers on the basis of race.

The case was eventually brought to the Supreme Court who returned it to the lower courts. The court noted, however, that the burden of proof should be shifted from the employer to the employee, reversing the decision from Griggs v Duke Power. This decision has been viewed as a major step backwards in the plight toward equal opportunity in employment. Requiring the employee to demonstrate an unfair employment procedure is an extremely difficult task, because it is the employer who knows how to interpret his/her own selection procedures, not the employee.

Equal opportunity in employment is an issue that has generated countless number of court cases and legislation. The necessity for such legislation can partly be attributed to discrepancies in test scores. Whether it be because of test biases, differing socioeconomic statuses, or past discrimination, scores on standardized test scores differ significantly between white and black Americans. Knowing the value that is placed on these tests in terms of job opportunity, finding ways to grant the equal opportunity that is guaranteed in the Constitution has been an issue confronted by the highest of courts. The Civil Rights Act of 1964 and the EEOC Guidelines probably produced the most significant legislation in stating that a hiring procedure that produced a disparate impact against African Americans can be considered discriminatory. Defining what constitutes a disparate impact, and whose burden it is to prove it, has obviously become an issue in the courts.
Government 375: Educational Reform and Ideology