Short Circuit

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The New York Sun

When is basic proficiency with the liberal arts not “job-related”? When you teach in the New York City public schools, apparently. That, at least, is the view of the three federal appeals judges, Reena Raggi, Richard Wesley, and Christopher Droney, who recently revived a decade-old lawsuit over teacher certification, as our Joseph Goldstein reported yesterday. A lower-court judge had ruled that the state’s basic test of aptitude in the liberal arts is relevant to determining whether or not a prospective teacher is qualified, but the appeals court has now questioned that decision and sent the case back to a lower court for reconsideration.

The Liberal Arts and Sciences Test, or LAST, was introduced in the early 1990s to augment existing certification procedures. LAST features multiple-choice sections on topics like math and science, art, and social sciences. An essay section requires prospective teachers to demonstrate their ability to respond to a question by drawing from evidence offered by the test-makers. A sample question on the State Education Department’s Web site asks whether reporters should be compelled to disclose their sources to the police and offers test-takers some of the most common arguments on each side of the issue that they can use to bolster their 300- to 600-word essays.

Some teachers who have passed the test have described it as extremely easy, certainly less demanding than the Regents Exams high school students take. Yet many test-takers failed in the 1990s, especially African Americans and Hispanics.Somewhere between 5,000 and 8,000 of those minority test-takers are covered by the current lawsuit, which argues that the high failure rates for minority applicants — 45% to 53% for Hispanics between 1993 and 1999, and 38% to 49% for blacks, compared to 6% to 9% for whites — are evidence of racial bias.

As a result of the court’s ruling, city taxpayers are now at risk of having to spend millions of dollars in back pay and pension benefits to would-have-been teachers who couldn’t pass the test even after repeated attempts on an exam where questions are often recycled from one test session to the next. Sound familiar? It should, because the same thing has happened in the state courts with the Campaign for Fiscal Equity lawsuit, another piece of long, drawn-out, expensive litigation in which a judge ended up substituting his judgment for that of a legislature in an effort to try to force the elected branches to spend billions of dollars of taxpayer money.

In this case, the judges found themselves deciding whether the LAST measures “content” — specific knowledge required to perform a job — or “constructs” — more general intelligence or aptitude. That may be the legal standard for deciding whether such a test is permissible despite a disparate impact along racial lines, but how a few federal judges are supposed to decide what kind of test this is is anyone’s guess. Arguably, the ability to reason and write as well as most holders of a bachelor’s degree is a useful skill for most teachers to have.

We agree that it is enormously important as a matter of policy to ensure that the process of licensing teachers in New York is devoid of any racial bias. But this line of judicial thinking is open to all sorts of absurdities, especially in respect of teacher certification. For example, if it turns out the test is measuring “constructs” more than “content,” the courts use a stricter standard to determine whether the test is legal under anti-discrimination laws. But the appeals judges cite an earlier precedent stating that the stricter standard kicks in when a test “attempts to measure general qualities such as intelligence or commonsense, which are no more relevant to the job in question than to any job.” Which means that if the city wants to defend itself it might have to prove that it’s important for teachers to be smarter than other workers, and that a judge might find that they don’t need to be.

If that’s not an argument for keeping this kind of decision in the hands of the legislative and executive branches, we don’t know what is. Even as the legislature has been tightening standards for new teachers over the past 20 years, some apparently less qualified teachers have found a way to use the courts to loosen the requirements again. One federal judge, Constance Baker Motley, declined to rule that the LAST was discriminatory, and she would have known since she helped draft the anti-segregation brief in Brown v. Board of Education. Judge Motley died in 2005, but New Yorkers can hope that the new judge to whom the case has just been tossed will be as wise and restrained.

The New York Sun

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