June 7, 2015

DISPARATE IMPACT STRIKES AGAIN: A federal judge in New York, Kimba Wood (a Reagan appointee), has thrown out New York’s teacher exam as racially discriminatory under Title VII of the Civil Rights Act. The reason? Black and Hispanic applicants had passage rates only 54 to 75 percent that of white applicants. The exam, called LAST-2, was administered from 2004 to 2012. According to the New York Times:

“Instead of beginning with ascertaining the job tasks of New York teachers, the two LAST examinations began with the premise that all New York teachers should be required to demonstrate an understanding of the liberal arts.”

Joshua Sohn, a partner at the firm Mishcon de Reya, who represents the prospective teachers in the case, echoed the that sentiment.

“They started with the conclusion, without any support, that this is what you actually needed to know to be an effective teacher,” Mr. Sohn said.

With this ruling, the LAST-2 meets the same fate of the LAST-1, an earlier version of the test, given from 1993 to 2004, that was also found to be discriminatory. . . .

Neither version of the exams is still in use in New York. Instead the state administers a new test called the Academic Literacy Skills Test, or the ALST, along with a slate of other assessments. The fate of the ALST, however, was recently called into question as well. This spring, Judge Wood began questioning whether that test, too, was racially discriminatory. A hearing is scheduled on the issue for later this month.

So having a well-rounded understanding of liberal arts is no longer  a reasonable indicia of a qualified teacher any longer.  But if  a well-rounded education isn’t an appropriate assessment of teacher qualification, what is? Breathing? Holding a (worthless) degree? Counting to 100? How far we have come–which just goes to show that the progressive motto “forward” isn’t always a positive thing for society. No wonder public schools generally are such cesspits of ennui and incompetence.

The outcome of this case illustrates the problem inherent in disparate impact theory, in which a plaintiff alleging discrimination is allowed to win under the statute without any proof of intentional discrimination.  So long as the action taken–in this case, an employment test–has a disparate statistical impact on a protected class (such as race), the burden will shift to the defendant. At that point, of course, the incentive to settle is strong, and shifting the burden of proof is often the death knell of the challenged practice.

The bottom line is that disparate impact theory allows many, many innocuous practices to be labeled as “discriminatory” merely because they “impact” races at a different rate. As I’ve pointed out before, this is a horrible way to run a diverse society, as the races do not participate in the same activities at the same rate, nor do they generally perform the same on standardized tests, as the recent racial discrimination lawsuit by Asian-Americans against Harvard University shows.

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