We are all increasingly governed by judicial decisions. Decrees of the court tell state officials and employees, teachers and school administrators, staff and administrators of hospitals, mental hospitals, schools for the retarded, government contractors, and indeed all employers, what they may or may not do. Lawyers interpret these decisions for the rest of us, who may well be called the defendants; and these days, more and more of us are defendants.
One prominent group of constitutional interpreters would have us believe that judges are trained to be cautious, and intervene in the social arena only when the evidence of violations of Constitution, law, and regulation is overwhelming. Yet if we actually take the time to read cases, we find that this picture bears little relation to the truth. Whatever the old training of judges, the new training—whether given by circuit and Supreme Court decisions overruling lower judges, by activist attorneys, by court clerks who have studied law with interventionist professors, or simply fry a spreading judicial philosophy which allows judges to read their personal views into law—makes for a very different sort of judge.
There is something to be learned by studying judicial decisions of large scope and significance. When, in California, at the end of a long trial, and in the course of judicial proceedings which were already almost a decade old, the decision came down to forbid the use of IQ tests in the placement of black children in classes for the educationally backward, an important landmark had been passed. The case, which involved the testimony of leading experts from around the country and pitted able lawyers against an impressive roster of defendants, affected thousands of people, will govern educational decision-making in the largest state in the country, and will play a substantial role in shaping our whole educational system. The Department of Justice, which appeared in the case as a friend of the plaintiffs, has energetically sought to extend the reach of the decision into other jurisdictions.
No mean case, one would think, and the decision must reflect that careful marshaling of evidence, that sound and convincing analysis, that demonstration of unfeeling and insensitive bureaucratic action that is necessary to convince the millions of people who have in some way or other made use of intelligence tests that such tests are deeply flawed and should play no role in educational decision-making. One-hundred-ten pages in elite double-spaced type, with twenty-one additional pages of single-spaced footnotes, coming at the end of a trial that produced a transcript of 10,000 pages and at the beginning of a process that will produce many more thousands of pages of reports from the state of California and all its school districts for years to come, the decision is written to instruct and convince—it goes far back into history, it reaches into issues of genetics, social deprivation, and culture, it makes use of statistics and expert testimony to arrive at serious and far-reaching conclusions. What do we learn from the decision, and the quality of the evidence and reasoning that it presents?
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The case is titled Larry P. v. Wilson Riles, Superintendent of Public Instruction for the state of California, et al.—the et al. includes the members of the California State Board of Education, the Superintendent of Schools for San Francisco, and the members of the San Francisco Board of Education. The decision was handed down October 16, 1979. It found unconstitutional the use of intelligence tests to place black children in Educable Mentally Retarded (EMR) classes.
The initial complaint was filed November 23, 1971, in the United States District Court for the Northern District of California. Judge Robert F. Peckham, whose decision we will analyze, has been dealing with the case ever since. He recognized a class action on June 20, 1972, and at the same time granted a preliminary injunction in favor of the plaintiffs. They were “refrained from placing black students in classes for the educable mentally retarded on the basis of criteria which place primary emphasis on the results of IQ tests as they are currently administered, if the consequence of the use of such criteria is racial imbalance in the composition of such classes.”
The defendants appealed to the Court of Appeals for the Ninth Circuit, which upheld the decision. On December 13, 1974, the plaintiffs moved to expand the injunction, and the defendants were then restrained from applying to black children intelligence tests “which do not properly account for the cultural background and experience of these children,” or listing such tests as approved, or placing black children in EMR classes on the basis of these tests. In January 1975, the defendants stopped using IQ tests for EMR placement for all children.
When the case began, the plaintiffs alleged only violations of the federal Constitution. In early 1977 an amended complaint added other violations: of Title VI of the Civil Rights Act of 1964, of the Emergency School Aid Acts of 1972 and 1974, of the California Constitution, and of several sections of the California Education Code. On August 8, 1977, the United States Department of Justice moved to participate as amicus curiae, thus indicating it thought serious violations of rights were occurring in the California EMR program. The Department of Justice alleged that use of IQ tests to effect the placement of black children in special-education classes violated the Education for All Handicapped Children Act, and Section 504 of the Rehabilitation Act of 1973.
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In the introduction to his opinion, Judge Peckham writes:
The court has been necessarily drawn into the emotionally charged debate about the nature of “intelligence” and its basis in “genes” or the “environment.” This debate, which finds renowned experts disagreeing sharply, obviously cannot be resolved by judicial decree. Despite these problems, however, court intervention has been necessary. The history of this litigation has demonstrated the failure of legislators and administrative agencies to confront problems that clearly had to be faced, and it has revealed an all to [sic] typical willingness either to do nothing or to pass on issues to the courts.
Here, Judge Peckham alerts us, is one of those cases that defenders of judicial intervention have in mind. A failure of the legislature and the administrative agencies has forced a judge who might be happier presiding over modest civil and criminal suits to undertake, reluctantly, a massive examination.
Judge Peckham details the nature of this legislative and administrative failure. He begins far back with the now traditional history of IQ tests—traditional, that is, among critics of instruments of classification. In the 1920’s, he writes, American proponents of intelligence tests believed that intelligence was fixed and inheritable and that different races and ethnic groups had different proportions of feeble-minded. In 1921, the state legislature of California authorized special classes for the mentally retarded. This early history is clearly intended to color our attitude toward present-day intelligence tests. Judge Peckham writes: “Special education and the IQ testing that justified its existence thus found an enduring place in California in the 1920’s, and the assumptions brought to the special classes survived long past the presumed ‘scientific basis’ for them.”
Judge Peckham seems to be saying that were it not for IQ tests with their flawed intellectual history, there would be no special-educational classes. But he provides no evidence that IQ testing ever “justified” special education. Special education, one would think, was occasioned by the existence of students who, in a compulsory and universal system, seemed, for whatever reasons, to be incapable of learning in regular classes. Only in this sense was the problem “new” in the 1920’s; earlier, such children would not have appeared in school.
Be that as it may, the fact that IQ tests were becoming popular at the same time that the social sciences looked with favor on racial explanations hardly serves to give a racist background to the use of IQ tests to place students in special education today. Yet this is the intellectual history Judge Peckham constructs in order to justify, not in law, of course—because it is hard to see how the intellectual orientation of IQ test proponents in the 1920’s would bear on the constitutionality of test use in the 1970’s—but as a matter of rhetoric, a decision that will ban IQ tests as unconstitutional.
Despite authorization by the California state legislature in 1921, few special classes were created, since there were no funds for them. After World War II new funding became available, and special education of various kinds flourished: for “educable mentally retarded,” “trainable mentally retarded,” “culturally disadvantaged minors,” and “educationally handicapped minors.”
In 1968-69 there were 58,000 children in EMR classes, of whom 27 percent were black (9 percent of the California school population at that time was black). And by 1969 the legislature began to be worried about improper placement in EMR classes. Undoubtedly this concern was spurred by the political and educational leaders and writers who in the late 1960’s were demanding better education for minorities, attacking segregation, and criticizing improper classification of black children.
In the next few years, the legislature was hardly inactive. In 1969, Judge Peckham states, it specified that admission to special programs for the mentally retarded should be decided “only on the basis of a local admission committee which shall include a teacher, a school nurse or social worker, a school psychologist or other pupil personnel worker authorized to serve as a school psychologist who has individually examined the minor, a principal or supervisor, and a licensed physician.” The law also required “annual reviews of EMR placements and consultations with parents prior to enrollment.” A House resolution in 1969 acknowledged the “mounting criticism of certain minority groups” that disproportionate numbers of their children were being placed in classes for the mentally retarded, and called on the State Board of Education to make suggestions for legislation. A report was prepared, and another resolution asserted that “There does exist a disproportionate enrollment of Spanish-surname and Negro children in classes for the educable mentally retarded.”
In 1970, the legislature, “[F]ollowing a 1969 regulation adopted by the State Board of Education, for the first time required by explicit statutory provision that an IQ test selected from a list approved by the State Board of Education be given for EMR placement.” It would appear from the sequence of events that this was one of a number of measures taken to limit the placement of black and Spanish-surname children in EMR classes. For the same legislation provided for the testing of children in their primary home language; placement in an EMR class was prohibited if a child scored better than two standard deviations below the norm. As Judge Peckham notes:
Written parental consent, obtained after an explanation of the EMR program, was required before placement . . . and the Department of Education was required to prepare an annual report for the state legislature on placements into EMR classes. . . . Another new enactment of 1970 required that all children present in EMR classes be retested according to the new statutory cut-off. Further, annual reports were mandated by all school superintendents in districts where there was a signficant disproportion in the enrollment of minorities in the program.
So many restrictions and requirements now hemmed in EMR placement that, it seems reasonable to conclude, school authorities would have suggested it to parents only when they truly believed it was the best solution for the child.
In 1971, the legislature went further, declaring (in Judge Peckham’s words) “that there should not be disproportionate enrollment of any socioeconomic minority or other ethnic group pupils in classes for the mentally retarded.” By fiat, the legislature thus declared that all ethnic groups and income classes must be equally represented, regardless of need. But to Judge Peckham the resolution did not go far enough: “No teeth were given to this declaration,” he writes. Additional requirements were then imposed—that test scores be substantiated by “a complete psychological examination by a credentialed school psychologist investigating such factors as developmental history, cultural background, and school achievement . . ., and that there be studies of ‘adaptive behavior’ and home visits for observation, with the consent of the parent or guardian.”
It was under these circumstances, which would seem to offer abundant evidence of legislative concern and administrative action, that the court accepted the complaint of the plaintiffs and enjoined the use of intelligence tests for the placement of children in EMR classes in 1972. Since then, there has been more legislative action, in 1974 and 1977, providing “further protections” to EMR students.
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Just what are EMR classes? They are for those “whose mental capabilities make it impossible for them to profit from the regular educational program,” according to a state handbook. The curriculum “is designed to help students learn the skills necessary to return to the regular instructional program.” The goals are “social adjustment” and “economic usefulness.” Students are placed in these classes at about the age of eight or ten, are not expected to move out, and remain there until graduation from senior high school. Less than 20 percent ever return to regular classes. Certainly one can agree that improper placement in such a class would hurt a child who is capable of learning in a regular classroom.
Blacks are clearly overrepresented in such classes. Between 1968-69 and 1976-77, the percentage of black children ranged from a high of 27.06 to a low of 22.61, while black children in the student population at large ranged between 9 and 12 percent. During this same period the overall number of children in such classes dropped drastically, from 57,148 to 19,289, but the black percentage hovered around a quarter.
There are surprising differences among school districts in the percentage of black (and white) children enrolled in such classes. Many cities, including Oakland and Compton, which are black-majority cities with black-dominated city governments and school systems, have proportionately higher rates of enrollment of black students in EMR classes than does San Francisco. One is left to wonder why the case was brought against San Francisco. And Inglewood and Long Beach, for example, show no substantial differences in the rate of enrollment between black and white children. These variations would be worth examination, but are not referred to.
Judge Peckham now explores the reason for the disproportionate placement of black children in EMR classes. Are IQ tests the answer? His attention is particularly engaged by the fact that in 1969, the State Board of Education adopted a requirement that only a test from an approved list could be used for EMR placement. (There was already a requirement that some “verbal or nonverbal” intelligence test be given.) To Judge Peckham it is very suspicious that in 1969, with much agitation over the concentration of minority children in EMR classes, and with the furor over Arthur Jensen’s article on the genetic basis of intelligence in the Harvard Educational Review, the Board should have taken such action. He writes, “The circumstances surrounding this change reveal much about defendants’ attitude toward minorities in EMR classes.” For the absence of a prescribed list earlier had meant “there was at least a possibility that particular school districts could avoid relying on tests that had a discriminatory impact on minorities.” Unfortunately, there is no evidence in the opinion or elsewhere that there are such tests; this assertion is based on a nonexistent possibility.
Why does Judge Peckham make so much of the new requirement that a test from an approved list be used? Because, as we shall see, he wishes to demonstrate an “intent” to discriminate on the part of the State Board. Thus he ignores the obvious reason for the creation of the approved list: namely, to respond to complaints about the EMR placement process by insuring that only respected tests be used; to make it harder to place children in EMR classes; and to protect the Board from charges of discriminatory behavior and possible suits. How this explanation can escape Judge Peckham is mystifying, since he has just presented a table showing that, after this requirement was adopted, the number of children placed in EMR classes dropped rapidly. Certainly logic requires the conclusion that since the creation of the list (along with the other changes of the time) reduced the number of children placed in EMR classes, that may have been its intention.
Judge Peckham also finds suspicious the way the list was compiled. One hundred school psychologists and county offices of education were queried as to their suggestions. The list included the expected and widely used Wechsler tests, the Stanford-Binet, and some others. To Judge Peckham, however, building his case, “[T]his extremely quick and unsystematic method of selecting these tests raises serious questions about the intentions of officials in the SDE [State Department of Education].” Judge Peckham makes much of one letter from the co-chairman of the testing committee of the California Association of School Psychologists and Psychometrists. Yet while that letter does question the urgency of establishing a list of “approved” intelligence tests, it also states: “I think it would be safe to say that most psychologists within the state would approve of the requirement that only individual intelligence tests of the stature of the WISC, or the recent revision of the Stanford-Binet, be employed for the purpose of obtaining clinical data which will contribute to the labeling process.” It is just these tests that ended up on the approved list. (The psychologist, from his letter, appears simply to be trying to give some expression to the popular view that something is wrong with tests for minorities, without attacking the usefulness of intelligence tests generally.)
Judge Peckham writes, “by relying on the most commonly used tests, they opted to perpetuate any discriminatory effects of those tests.” On the contrary, it seems clear that the state defendants, responding to criticisms of disproportionate black placements in EMR classes, made it generally harder for local school districts to place anyone in EMR classes, and this did reduce the numbers in such classes.
Still, those who were so placed—presumably in the first instance because teachers could do nothing with them—remained disproportionately black. But just what effect on the placement of black children did IQ tests have, in view of all the other requirements that had to be met before placement was possible? We can find out by examining the evidence on placement of minorities since the moratorium on the use of IQ tests was imposed in January 1975, and Judge Peckham does so.
Two charts are displayed on placements in the major districts of California for 1973-74 and 1976-77. Some of the largest districts (Los Angeles, Oakland) show no change at all, while in San Francisco, co-defendant in the suit, the percentage of black students placed in EMR classes was almost halved. Judge Peckham writes, “. . . [T]he results are not uniform, but uncontradicted expert testimony based on totals indicates that the 4 percent drop in the placement of black children into EMR classes—50 percent to 46 percent—is statistically significant and therefore not likely to have occurred by chance.”
One wonders how such shabby “testimony” could have been allowed to stand “uncontradicted” by the defendants, for in law uncontradicted testimony is truth. The fact that the percentage of black children being placed in EMR classes dropped a modest four points between 1973-74 and 1976-77, a drop easily explainable by the big reduction in San Francisco, the defendant in the suit, enabled Judge Peckham to conclude that the moratorium on IQ testing might have been responsible, and thus gave him the opportunity to go on to an elaborate examination of the IQ test itself. But the evidence showed the IQ test was irrelevant to the issue of the disproportionate placement of black children in EMR classes.
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As is well known, black children score on the average one standard deviation below whites on intelligence tests. That, to Judge Peckham, is the problem, for as he writes, “An unbiased test that measures ability or potential should yield the same pattern of scores when administered to different groups of people.”
There is of course no reason why it should. Studies regularly show substantial ethnic differences in achievement on different kinds of tests, and these are grounds for exploration rather than for dismissing tests altogether. Judge Peckham writes that while IQ tests have been modified to yield the same distribution for boys and girls, “No such modification on racial grounds . . . has ever been tried by the testing companies according to the testimony at this trial.” But researchers have tried, without success, to develop tests in which blacks would score as well as whites, even if testimony to this effect was not presented at the trial (see Arthur Jensen, Bias in Mental Testing, Chapter 14, for a massive survey of these efforts).
One can, it is true, devise tests in which blacks will do as well as or better than whites; but they are not tests of the skills recognized as useful by schools or society. There is no easy substitute for reading and understanding simple language or for doing simple calculations—and these are the kinds of tasks we test in the IQ. The problem, as Judge Peckham himself realizes, is that “[E]qualizing scores of minorities in intelligence tests . . . raises difficult questions regarding which skills are appropriate for our schools and society. . . .”
To explain the group difference in test scores, Judge Peckham briefly explores the genetic argument but decides it will not do. He then proceeds to socioeconomics. He accepts the idea that children can be handicapped by poverty, but he writes that “the question before the court is whether such disadvantage leads not only to poorer test and school performance, but also to the condition of mental retardation thought to justify placement of [sic] EMR classes.” But is that really the question before the court? Is it not whether intelligence tests should be banned as one instrument in making a complex decision as to the benefit a child might glean from being placed in an EMR class? “Educable mentally retarded,” whatever the suggestion in its name, does not refer to a clinical condition which may (or may not) be related to socioeconomic condition; it refers to children who simply do not get anything out of regular classes but may get something out of classes which emphasize intensive drill and other approaches that will impart necessary minimal skills. There is no question that a strong relationship exists between low socioeconomic status and learning problems, and this is common for all groups regardless of race, creed, or color.
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Having disposed of genes and poverty, Judge Peckham moves to the cultural bias of IQ tests. “The first important inferential evidence,” he writes, “is that the tests were never designed to eliminate cultural biases against black children; it was assumed in effect that black children were less ‘intelligent’ than whites.” This is a gross non sequitur. The fact that the tests were not designed to eliminate cultural biases says nothing about assumptions as to the intelligence of black children. The tests were not designed to eliminate cultural biases against Chinese, Japanese, Vietnamese, Mexican, Jewish, or any other kind of children, yet some groups do better on the tests than whites and Anglo-Saxons. And however well or badly they do at any one point in time, their performance has changed over time and with acculturation. At least Judge Peckham, after making much of the fact that the tests were originally standardized for white populations, does point out that they were re-standardized in the 1970’s, using samples that included black children in their proportion in the population at large.
Judge Peckham also offers as evidence of cultural bias the fact that black scores are higher if children have had the benefit of early-intervention programs or when black children have been raised in white homes. But this is no evidence of test bias against blacks: poor white children can also score higher through intervention programs and through being raised in middle-class families. The issue is not whether groups of children vary through their exposure to the kinds of items that appear on intelligence tests, or to the kind of culture which is used as a norm to judge whether items are correct or not. Of course they do. The issue, rather, is whether the distortions created by these tests are so great that no use may be made of them in devising suitable educational programs. Judge Peckham decides, on the basis of the most casual and inadequate examination, that they are.
He concludes: “To the extent that a ‘black culture’ . . . exists . . . these tests cannot measure the capabilities of black children. This important conclusion will be considered very carefully in relation to the legal analyses developed below.” This is a rather startling conclusion because Judge Peckham has not heretofore told us that a black culture does exist, and has referred to only one piece of specific testimony as to the bearing of black culture on test performance. If the fact that blacks do worse than whites on intelligence tests is to be taken as evidence of a distinctive black culture, all we have done is to engage in circular reasoning and to beg the question—which is, what is the source of this difference? Judge Peckham seems to have decided it is . . . black culture.
Another possible conclusion: even if intelligence tests measure no innate traits or useful skills, those who cannot perform these skills might better be placed in EMR classes where at least very basic skills will be learned. But Judge Peckham tells us this conclusion will not do. “To give up so easily on black children is simply not justified.” But is placement in EMR classes “giving up”? Is it not “giving up” to leave children in classes where they are not learning at all? There is no further reference to this possibly valid conclusion.
Judge Peckham could have, and I beleive should have, dismissed this case on the basis of evidence that intelligence tests are only one of many factors taken into account in placing children in EMR classes; that California law is meticulous in specifying various substantive and due-process safeguards to prevent children from being inappropriately placed; that in any event the child’s parent or guardian may reject such placement; and that, after the use of IQ tests was banned by a preliminary injunction, no substantial effect could be discerned on the proportion of black children placed in EMR classes. Instead, he conducts an indecisive inquiry—indecisive despite 10,000 pages of transcript and testimony from many experts, because experts disagree and the matter is complicated—as to why blacks do more poorly on IQ tests, decides the answer is black culture, and on this wobbly foundation of “fact” goes on to address the legal issues.
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To Judge Peckham, Title VI of the Civil Rights Act of 1964 provides a very strong statutory support for the plaintiff’s case. It reads, “No person . . . shall, on grounds of race, color, or national origin, be excluded from participation, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.” He also leans heavily on the Supreme Court decision in Lau v. Nichols, where the Court asserted that San Francisco had violated Title VI by not providing instruction oriented to the needs of non-English-speaking Chinese children.
But how this supplies a precedent is mystifying. In Lau, San Francisco school authorities violated the law by not providing special English-language classes, which Chinese-speaking students urgently needed. In this case, San Francisco (and California) specifically did provide the kind of education the plaintiffs’ condition required. In addition, while there may have been some feeble ground for considering San Francisco discriminatory in Lau because it treated all children alike regardless of need, in this case children’s needs were carefully differentiated. Finally, the operative point of Title VI is differential treatment on the basis of race, color, or national origin; this might be taken to apply to a group of Chinese children who were not given a program tailored to their needs as Chinese speakers, but in this case no one claimed that the plaintiffs were defined primarily by color and race—after all, the overwhelming majority of black children do attend regular classes, and even if black children are disproportionately represented in EMR classes, they still make up an infinitesimal percentage of all black children. Under these circumstances, how can one claim that their differential treatment is owing to race rather than to a judgment of educational need?
By Judge Peckham’s reasoning, any educational program which disproportionately selects from one or another group violates Title VI; he is indifferent to the ground of this selection, looking only to the “effects”—disproportionality. Athletic requirements for school teams, verbal requirements for creative-writing classes, mathematical requirements for special programs would all be suspect, for on such tests different ethnic groups achieve differently. And so to Judge Peckham,“Lau . . . at a minimum prohibits confinement of blacks to EMR classes because of their culture.” But Lau cannot possibly mean that, because its effect was indeed to “confine” Chinese children to distinctive classes because of their culture—just what Judge Peckham says it prohibits. Further, Lau speaks to the special educational programs which most of the members of a distinctive group might need. But here the distinctive group neither needs nor gets a special program, because 99 percent are in regular classes. The courses of the law are wonderful, but not often so wonderful as when Judge Peckham bends Lau to his needs in the case of Larry P.
If the Lau decision, based on a regulation interpreting the Civil Rights Act of 1964, is not sufficient to buttress Judge Peckham’s findings against the state, other legislation comes to his aid. The Rehabilitation Act of 1973 and the Education for All Handicapped Children Act of 1973 were written to discourage the segregation of handicapped children. Tests used for placement of the handicapped must be properly validated, and cannot be racially and culturally discriminatory. The defendants argued that the standards for validation used by the Supreme Court in Washington v. Davis (1975) should be followed. In that case, a test on which black candidates for police work did worse than whites was found by the Court to be non-discriminatory because it predicted success in the police training program, and was thus properly validated.
Here Judge Peckham makes a distinction between validation for purposes of employment and validation for purposes of education. While the distinction is sound—the state (or any other employer) should not be required to hire less competent employees, but a compulsory education system must educate all its children—his further assertion, that tests must be validated separately for blacks, is not. “The law is,” writes Judge Peckham, quoting a federal regulation, “that the defendants must come forward and show that they [the tests] have been validated for each minority group with which they are used.” (Judge Peckham could have added, but only for those minority groups who perform poorly on them.) Examining the extensive trial record, Judge Peckham concludes that intelligence tests do not predict need for EMR placement for blacks as well as they do for whites.
Finally, Judge Peckham asserts that even if the IQ tests are to some degree valid, the fact that they select disproportionate numbers of blacks means that the plaintiffs are entitled to require the state to use less discriminatory alternatives that would serve the objective as well. Since the moratorium on IQ tests, the state has used such alternatives (which are the same mechanisms it had required earlier in association with IQ tests) and there is no evidence they have not worked. So the state can do without IQ tests. But these alternatives to IQ tests also select disproportionate numbers of black students. “Less discriminatory alternatives have been developed,” Judge Peckham writes, “but they have not been apparently validated, and they are still producing intolerable disproportions in EMR classes. If EMR classes are to continue in their present form, the state will have to make a better effort. ”
The “better effort” is clearly some selection procedure that will choose students for EMR classes in equal proportions from each racial group. Yet how can one insure that a procedure dealing with individuals will select proportionately by race unless one does just that, namely, select proportionately, through a quota? That, indeed, is what Judge Peckham expects the state to do in its “better effort.”
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Having reviewed the federal statutes and the regulations that implement them, and shown that they forbid the use of IQ tests, Judge Peckham approaches the equal-protection clause of the Fourteenth Amendment. It was on the basis of this clause that the plaintiffs originally charged, in 1971, that the use of IQ tests was unconstitutional. Here Judge Peckham is concerned to supplement his findings of transgressions of federal statutes with a finding of constitutional violation. Can he show not just a discriminatory effect or result but actual intent to discriminate?
In the troublesome Washington v. Davis case, the Supreme Court asserted that disproportionate impact “is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution.” “Intent” or “purpose” to discriminate is necessary. Unfortunately the Supreme Court has given little clear guidance on what it means by “intent” or “purpose.” Some circuit courts of appeal take the position that “school boards and others charged with discriminatory intent intend the natural and foreseeable consequences of their actions.” The Ninth Circuit, in which Judge Peck-ham’s court is located, has adopted a more stringent standard, requiring a “determination that the school authorities have intentionally discriminated against minority students by practicing a deliberate policy of racial segregation.”
To secure his decision, Judge Peckham wants to show discriminatory intent under this standard—that is, to show that the defendants wanted to, intended to, isolate disproportionate numbers of black children in EMR classes because they were black. One would think this a difficult showing to make against defendants headed by the black Superintendent of Schools of California, Wilson Riles, and including a State Board of Education appointed by Governor Jerry Brown. But Judge Peckham does not flinch. Constitutional law, in the hands of a determined judge, is these days infinitely flexible. He finds the evidence for this impermissible intent to segregate black children in that same 1969 requirement by the State Department of Education that the intelligence test given to a child before placement in an EMR class be one selected from an approved list.
It would seem simple common sense, as I argued earlier, that this provision was adopted as one of numerous safeguards to prevent improper placement in EMR classes. But to Judge Peckham it rather demonstrates the forbidden intent to segregate. How?
“First, it is obvious that the decision to require the administration of one of the approved IQ tests prior to EMR placement had profound discriminatory effects.” As we have already seen, however, the moratorium on IQ tests did almost nothing to reduce the proportion of black children sent into these classes, and there also is no evidence that the earlier decision to require one from the approved list had any effect at all on the proportion of black children going into these classes.
Second, “the history of IQ testing and special classes for EMR in California is a tainted one.” By this Judge Peckham refers once again to the racist assumptions of some early creators and advocates of IQ tests. But can this be relevant in considering the “intent” of the current Superintendent and Board? The facts in the past and in the present are that disproportionate numbers of black children are slow learners. In the past, this was ascribed to racial inferiority, the prevailing social-scientific doctrine. Today, it is ascribed to a heritage of discrimination, or poor nutrition, or cultural isolation, or some other factor. In what way is the history of the varying interpretations of the genesis of learning difficulties relevant to demonstrating “intent”?
Third, as mentioned above, Judge Peckham finds something odd in the timing by which the requirement for IQ tests was established. “In the midst of substantial public controversy in 1969 about the overenrollment of minorities in EMR classes, and the fairness of the standardized intelligence tests . . ., the State Board of Education, dependent on the State Department of Education and with no independent staff of its own, adopted the resolution proposed by the SDE requiring the use of approved IQ tests for EMR placement. The state has offered no explanation whatsoever for this decision, or why it suddenly became so important.”
The state, he would have us believe, was fearful of efforts by minorities to reduce the proportion of minority children in EMR classes, and therefore rushed into requiring one of a group of IQ tests in order to maintain that high proportion. Clearly, however, the state acted to stem public controversy and to buttress its procedures and decisions by requiring that only one of the more respected IQ tests be used.
Judge Peckham concludes: “. . . [D]efendants’ actions resulting in the adoption of the IQ requirement . . . can only be explained as the product of the impermissible and scientifically dubious assumption that black children as a group are inherently less capable of academic achievement than white children. Key officials of the State Department of Education moreover actually corroborated this explanation. They testified that they believed the overenrollment of black and Chicano children in the EMR classes accurately reflected the incidence of mental retardation among these children.” This of course corroborates nothing; it merely says that the state officials believed their procedures properly selected pupils who would be helped by EMR classes. It says nothing as to intent, or the reason for the requirement of tests, and it carries no implication of any belief concerning the “inherent” capability of black children.
The lengthy opinion does not indicate whether any teachers testified as to why in any given case they might suggest placement of a child in classes, or whether parents testified as to what they think. But the state did place on the witness stand the named plaintiffs who served as representatives of the class: “Defendants’ contention was that the named plaintiffs were in fact retarded. . . . [D]efendants placed them on the witness stand, presumably for the court to make up its own determination whether the earlier EMR assignments were appropriate.” Judge Peckham sternly rejects this effort to introduce reality into the courtroom. To him this is a matter that must be decided by lawyers and judges hearing from distant experts and equally distant high officials, and let reality go hang. To him it does not matter whether the named plaintiffs were retarded or were not.
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Judge Peckham in effect decides this case as if it were a case of racial segregation, even though on the basis of the statistics he presents only about a quarter of the children in EMR classes are black, and there is no evidence that they are segregated from white or other EMR students.
Having settled that what we have here is a case of racial segregation, he then soberly goes through the motions of determining whether it is unconstitutional racial segregation. Is there intent to segregate? Yes. Are there compelling state interests requiring this segregation? No. Ergo, it is unconstitutional. And the same goes for the IQ test, which is one mechanism by which such unconstitutional segregation takes place.
With this rickety structure of findings, reasoning, and law, Judge Peckham comes to his remedy, which is nothing so simple as banning the use of IQ tests. That of course he does ban them (for black children) goes without saying. But the remedy the decision aims at is grander than that: “Defendants are hereby ordered to monitor and eliminate disproportionate placement of black children in California’s EMR classes.”
This injunction is followed by detailed provisions for achieving it. The defendants must get annual reports from each school district specifying by race and ethnicity who has been placed in EMR classes. They must aggregate the reports by certain categories and subcategories, file the various reports with the court, require each school district with disproportionate black enrollments to prepare and adopt a plan to correct the imbalance, and bring imbalanced districts to the attention of the court. Each school district must reevaluate each black child placed in EMR classes without the use of a standardized intelligence test, and must prepare for each child an “individual educational plan.”
There is nothing in the decision which indicates when this court supervision will end, or when the state may cease stuffing the courthouse files with the massive volume of required reports.
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Larry P., now law in California, is on the way to becoming law nationally, by means of similar suits launched in other states, with the firm support of the Department of Justice. There has been one check in its progress: a case brought in the United States District Court for the Northern District of Illinois, Eastern Division, Parents in Action on Special Education (PASE) versus Joseph P. Hannon, General Superintendent of Schools in Chicago, and many other plaintiffs, including the Chicago Board of Education, the Superintendent of the Illinois Office of Education, and the Illinois State Board of Education. The United States Department of Justice entered the case as amicus curiae, and sided with the plaintiffs on all issues.
The interesting thing that happened here was that the judge before whom the case was tried, John F. Grady, was singularly unimpressed by the expert witnesses, who were pretty much the same expert witnesses Judge Peckham heard in Larry P. As he writes:
I have seen cases in which one set of experts is clearly more credible than the other and will, by their demeanor, appearance, credentials, and the reasonableness of their testimony, carry the day. This is not such a case. None of the witnesses in this case has so impressed me by his or her credibility or expertise that I would feel secure in basing a decision simply upon his or her opinion. In some instances, I am satisfied that the opinions expressed are more the results of doctrinaire commitment to a preconceived idea than they are the result of scientific inquiry.
Judge Grady decided to look at the challenged intelligence tests. He went meticulously through a number of challenged IQ tests, and came to the conclusion that while a few items on the Stanford-Binet and the WISC and WISC-R might be culturally biased against black children, “[T]hese few items do not render the tests unfair and would not significantly affect the scores of an individual taking the test.”
While a judge in one circuit need not take account of the decision of a judge in another circuit, Judge Grady does comment on the Larry P. decision. He points out that Judge Peckham’s “lengthy and scholarly opinion is largely devoted to the question of what legal consequences flow from a finding of racial bias in the test.” But Judge Peckham did not himself examine the tests to determine the “threshold question” of whether bias exists, and indeed referred to only a few items out of hundreds on the tests. “As is now obvious,” Judge Grady concludes, “the witnesses and arguments which persuaded Judge Peckham have not persuaded me.”
Judge Grady also examines the actual use of the tests. They are given by trained psychologists who can interpret children’s responses. Of 193 school psychologists in the Chicago system, 44 are black and presumably can therefore take cultural background into account. It also seems that at least one black psychologist usually participates in the placement of a child in the EMR class. In addition, the test is only one component in the decision—and Illinois also has safeguards against incorrect placement.
Finally, Judge Grady examines the entire placement process. It is clear to him there is no great incentive on the part of authorities to place children in these special and expensive classes. “Sometimes the decision is against placement even though the parent desires it. A motive for unnecessary placement is nonexistent, since the cost to the local system of administering the program far exceeds the state and federal aid received for it.”
In short, Judge Grady’s opinion breathes a simple common sense which is hardly to be seen in Judge Peckham’s. Will his common sense prevail? Before the 1980 election, I would not have bet on it: the Ninth Circuit had already upheld the earlier temporary injunction of Judge Peckham, and the Department of Justice, with its powerful resources, was ranged on the side of the plaintiffs in this rather pointless war against the intelligence test. Possibly, with a new Attorney General, Judge Grady’s position may have more of a chance.
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I have not gone into the issue of what should be done about children who do not seem to learn in regular classrooms. One approach is the specialized classroom with its specialized techniques. Another, increasingly favored by many educational policy-makers but toward which many teachers and principals are skeptical, calls for “mainstreaming” of the physically and mentally handicapped, on the theory that these children will get more benefit from regular classes than from special classes.
This is a complex issue in educational policy. Many interests are involved: the children, to begin with, both those who suffer from the handicap and those who are to provide an environment for such children if they stay in regular classes; teachers, who must deal with these children, whether in regular or special classes; administrators., who must decide what pattern to follow; parents and taxpayers, in their various capacities. Few of these interests were represented in Judge Peckham’s courtroom. Some research has been done into the effects of one pattern or another of dealing with educationally backward children, yet considerable gaps in our knowledge remain. Both what we do know and what we do not know made a highly selective appearance in Judge Peckham’s courtroom. How could it have been otherwise, in view of the many interests unrepresented there?
The law is a teacher. What has this decision taught the teachers and administrators of California? Has it convinced them that they have indeed been operating in such a way as to transgress deep constitutional principles, as well as many statutes? Or is this decision so deeply flawed in its understanding, its reasoning, its capacity to use evidence, that it will inevitably be seen not as a legitimate expansion of the rights of individuals but as an exercise in brute power?
