There are two basic theoretical models for addressing claims of discrimination: disparate treatment and disparate impact. The disparate treatment model attempts to expose and punish intentional discrimination; the disparate impact model seeks to eliminate policies that, while neutral on their face, disproportionately harm members of a protected class. Since 1991, Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment, has expressly permitted plaintiffs to challenge employment practices with a disproportionate impact on certain protected groups. By contrast, Title VI, which prohibits discrimination by federally assisted programs including most schools, does not explicitly authorize claims of disparate impact.
Many commentators and activists have long sought to expand the disparate impact doctrine's reach to the education context. In- deed, in recent years it has become fashionable to use the disparate impact model to challenge as discriminatory high-stakes educational tests on which the average black or Latino student scores lower than the average white student. The national groundswell of support for higher educational standards and greater educational accountability has raised questions as to whether federal antidiscrimination law should prohibit standardized tests used to deter- mine whether a student will graduate from high school or be promoted to the next grade level when the use of such tests results in lower pass rates for black and Latino students. This Article examines the claim that standardized educational tests discriminate against minority students and considers whether the disparate impact model should be applied to educational testing. After reviewing the arguments for and against applying the disparate impact model of employment discrimination to the educational testing context, the Article concludes that claims of discrimination in educational testing should be limited to claims of intentional discrimination. Because the standardized tests used by primary and secondary schools can just as easily be understood as a tool for remedying inequality as a tool for exacerbating inequality, educational policymakers should be permitted to use their discretion in deciding whether and how to employ such tests in the absence of an intent to discriminate. In other words, because testing policies necessarily impose both costs and benefits on minority test-takers and communities, they are inappropriate targets of the disparate impact doctrine.
Jennifer C. Braceras,
Killing the Messenger: The Misuse of Disparate Impact Theory to Challenge High-Stakes Educational Tests,
55 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol55/iss4/2