Disparate Impact Gone Awry:How the Misapplication of Civil Rights Law Encouraged the Demonization of the Nation's Teachers

One of the unexamined dimensions of the history of the School Reform Movement is the role that Civil Rights lawyers played in shaping its guiding assumptions and strategies. I was reminded of this the other day when reading an unpublished manuscript by an Oklahoma City based teacher named John Thompson, who pointed out that civil rights lawyers typically demonstrated the existence of discrimination by documenting statistical disparities between underrepresented and privileged groups, which is precisely the approach School Reformers used in devising remedies for the achievement, or test score gap, between black and white students. Reformers looked at statistical disparities between schools in Black and White neighborhoods and inferred that the lower test scores and graduation rates n the former could best be remedied by removing teachers and administrators in the underperforming institutions and replacing them with more skilled people and/or by closing such schools and replacing them with new schools that had greater flexibility in hiring.


As I read these passages, they struck a chord on multiple levels. First, I thought of my own research on the evolution of affirmative action and how civil rights leaders and federal officials developed a rationale for it. Affirmative action began when policy makers required employers to do statistical analyses of the percentage of underrepresented groups they hired or enrolled, and based remedial action on those statistics, rather than demonstrated discriminatory intent. The main agency responsible for enforcing anti-discrimination law in employment, The Equal Employment Opportunity Commission pioneered this approach, When companies complained that under representation of minorities was not the result of intentional discrimination, they complaints were rejected, by both the EEOC and the federal courts, who invoked a doctrine called "disparate impact" (enshrined in a Supreme Court decision Griggs v Duke Power) which stipulated that practices which reinforced historic patterns of discrimination, even when they were neutral in intent, and even in application, were considered discriminatory under federal law, and could be subject to remedies that increased the number of employees from the group in question even if the institutions normal standards for hiring were set aside.

Now let's move ahead 40 years later. Civil rights lawyers began looking at disparities in achievement between Black and White students through a similar lens, treating such disparities as if they were the product of discrimination. But rather than viewing those disparities as the result of discrimination in criminal justice policy, the housing and employment markets, and access to family wealth, they chose to isolate the school from the depressed neighborhood they were located and put continuous pressure on underperforming schools to do a much better job educating Black and Latino students.

One incidental outcome of the application of disparate impact theory to education was the identification of "bad teachers" and the unions which protected
them, as the primary cause of discriminatory outcomes for Black andLatino students. These were factors which policy makers felt they could directly influence, unlike intergenerational poverty and discrimination in housing, employment and criminal justice, and once the schools became isolated from their neighborhood setting as discriminatory institutions, teachers quickly became the main targets of remedial action.

But demonizing teachers was not the only consequence of this style of thinking. Once policy makers began developing statistical models to reliably compare and rate schools, and gauge teacher and administrator performance, they realized that the needed a much more reliable data base upon which to do this and that meant increasing the number of standardized tests, applying them across the board to constituencies which had previously been exempted, such as ELL and special needs
students, and spending huge amounts of money on software to process the
information and consultants to analyze that information

Both results, the demonization of teachers and the proliferation of testing, took place in New York City under the direction of a well known civil rights attorney,' James Leibman from the faculty of Columbia Law School, who was hired by Chancellor Joel Klein, another lawyer who loved to employ civil rights rhetoric, as the Department of Education's first Accountability Officer. Under Leibman' s direction, the DOE created complex statistical models first to grade schools, and later to
evaluate teacher performance, both using criteria that based ratings on complex measures involving variations in student test scores from year to year. On the basis of the models, which were statistically flawed and often defied common sense, schools were closed and teachers were removed and placed in a much stigmatized reserve pool. The consequence was an increase in the number of tests and huge ratcheting up of stress levels associated with them. In New York City, for
example, every third grader must sit through 6 straight days of testing for 90 minutes a day. Those who defend this practice still use the language of equity in explaining why they are doing. But quite frankly, the negatives associated with this level of quantification are far exceeding the benefits.

We now face a situation where school reform policies once descrbed as necessary to achieve educational equity and reduce the racial achievement gap have resulted in uncontrolled testing , profit taking on a grand scale by test companies, and attacks on teacher integrity and collective bargaining rights that have produced the lowest level of teacher morale on record.

Such is the consequence of the misapplication of a once honorable civil rights doctrine to a setting where the most publicized causes of discrimination -teacher apathy and incompetence- are far less significant than environmental factors excluded from the analytical and statistical model, particularly poverty, and societal racism.

The notion that “School Reform is the Civil Rights Cause of the 21st Century has become a cruel joke to teachers and students who find themselves deluged with unnecessary tests and placed under intolerable stress in the name of educational equity.