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to which students had a federal and state legal entitlement (Parents in Action on Special Education (PASE) v. Hannon, 1980:150–164).
Although they reach different conclusions, these decisions are consistent in several important respects. First, even under a stringent intent standard, liability findings may turn in part on the extent to which courts believe that educators have complied with generally accepted standards and procedures governing proper test use. In Larry P. and PASE, for example, the outcomes depended in part on such measurement issues as test validity, item bias, and whether educators were relying on single test scores in making student placement decisions. The outcome in Larry P. also turned on an issue of proper attribution of cause, with the court questioning the defendants' claim that black students' IQ scores were an accurate reflection of mental retardation among blacks. Third, the decision in Larry P. and PASE both rest partly on the courts' views' of whether the resulting placements were beneficial or dead ends; both courts were interested in the educational consequences of test use for students (see National Research Council, 1982). More generally, the courts' concern with tracking, remediation, and special education is plainly focused on whether or not students will receive enhanced and effective educational opportunities as a result of the educational intervention. Furthermore, complying with relevant professional testing standards reduces the risk of legal liability for high-stakes assessments.6
Claims that Tests Preserve the Effects of Prior Discrimination
The Supreme Court has long held that the Constitution forbids practices that, although seemingly neutral, serve to preserve, or carry forward, the effects of prior illegal school segregation. This suggests that it would be unlawful for school officials to use tests to track minority students, deny them high school diplomas, or retain them in grade if those students' low test scores are traceable to their having attended illegally segregated schools.
Based on an analysis of relevant law, Phillips advises state and local education agencies involved in high-stakes testing to "[f]ollow professional standards in all technical matters, including, but not limited to, item development, item selection, validity, reliability, item bias review, equating, scaling, setting passing standards, test security, accommodations, test administration, scoring, and score reporting" (Phillips, 1993a:xxi).