promotion, and graduation.1 The first section considers issues of discrimination on the basis of race, national origin, or sex; it includes discussion of English-language learners. The second section explores other circumstances in which courts have invalidated tests having high stakes for students, either because students have received insufficient notice of test requirements or because the test measures knowledge and skills that students have not been taught. The third section describes testing requirements under the Improving America's Schools Act of 1994, which amends Title I. Chapter 8 considers the legal rights of students with disabilities under federal law.

Several general points are worth noting from the outset. First, the standards of testing professionals—who practice the science of psychometrics (see Chapter 4)—are often invoked in legal challenges to high-stakes testing, and testing programs are more likely to withstand legal challenges if professional standards have been met. Indeed, legal standards and psychometric standards reflect many common concerns, including those of appropriate measurement, proper attribution of cause, and, in some contexts, the educational consequences of test use (National Research Council, 1982).

Second, just as different test uses may raise particular legal concerns, so may the use of different kinds of assessments. Performance assessments, for example, may raise certain legal questions that traditional multiple-choice instruments do not (Phillips, 1996b).

Finally, there is often no single legal view on what constitutes non-discriminatory or appropriate test use. The U.S. Supreme Court has settled certain questions, but legal rules, like psychometric norms and notions of sound educational policy and practice, are constantly evolving. If the Supreme Court has not resolved an issue, then courts in different jurisdictions may face similar disputes but reach different conclusions, or they may reach similar conclusions but on different grounds. The decision of a lower court is binding only in that court's jurisdiction, although it may influence judges, policymakers, and practitioners elsewhere.


Such high-stakes tests are likelier than low-stakes tests to raise legal concerns—if only because, by definition, these high-stakes tests can lead to adverse consequences for individuals. Thus, to the extent that the objectives of a testing program can be achieved through low-stakes test uses, legal problems become less likely.

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