PARENTS IN ACTION ON SPECIAL ED. (PASE) v. HANNONNo. 74 C 3586.

506 F.Supp. 831 (1980)

PARENTS IN ACTION ON SPECIAL EDUCATION (PASE), an incorporated association; Lue B. B., on her own behalf and as next friend of Barbara B.; and Onollie J., on her own behalf and as next friend of Angela J., on behalf of themselves and all other persons similarly situated, Plaintiffs,
v.
Joseph P. HANNON, Individually, and in his capacity as General Superintendent of Schools in Chicago; Elberta Pruitt, Individually and in her capacity as Director of Special Education for the Chicago Board of Education; Louise G. Daugherty, Individually and in her official capacity as Director of Pupil Personnel Services for the Chicago Board of Education; William Canning, Individually and in his capacity as Director of the Bureau of Child Study for the Chicago Board of Education; the Chicago Board of Education, a body corporate and politic; John D. Carey, Dr. Edgar G. Epps, Dr. Bernard S. Friedman, Herbert E. Johnson, Henry W. McGee, Mrs. Louis A. Malis, Thomas J. Nayder, Patricia O'Hern, Carey B. Preston, Mrs. William L. Rother, Gerald L. Searboro, Carmen Velasquez, and Mrs. Lydon Wild, Individually and in their official capacity as past or present members of the Chicago Board of Education; Joseph Cronin, Individually and in his capacity as Superintendent of the Illinois Office of Education; the Illinois State Board of Education, a body corporate and politic; and the Illinois Office of Education, the State Educational Agency of Illinois, Defendants.

United States District Court, N. D. Illinois, E. D.
July 7, 1980.
Wallace C. Winter, Legal Advocacy Service, David A. Goldberger, American Civil Liberties Union, Linda Lipton, Better Government Ass'n, James L. Pittman, Lord, Bissell & Brook, Chicago, Ill., for plaintiffs.
Michael J. Murray, Patricia J. Whitten and Christine Cheatom, Chicago, Ill., for defendants.

MEMORANDUM DECISION

GRADY, District Judge.

This case presents the question whether standard intelligence tests administered by the Chicago Board of Education are culturally biased against black children. The action is brought on behalf of all black children who have been or will be placed in special classes for the educable mentally handicapped ("EMH") in the Chicago school system. The defendants are the Chicago Board of Education and its officers responsible for administration of the relevant programs. The named plaintiffs are two black children who were placed in EMH classes after achieving low scores on standard intelligence tests.

The Illinois school code requires classes for the educable mentally handicapped, who are defined as:

. . . children between the ages of 3 and 21 years who because of retarded intellectual development as determined by individual psychological evaluation are incapable of being educated profitably and efficiently through ordinary class-room instruction but who may be expected to benefit from special education facilities designed to make them economically useful and socially adjusted.

Ill.Rev.Stat. ch. 122, § 14-1.04 (1977).

There are 483,209 children enrolled in the Chicago public school system. Of those, 299,590, or 62 per cent, are black. For the 1978-79 school year, 13,225 children were enrolled in EMH classes. Of these, 10,833, or 82 per cent, were black. Of the 106,581 white children enrolled in the system, 1,404 were attending EMH classes. Three and 7/10 per cent of all black students enrolled in the system are in EMH, whereas only 1.3 per cent of the white students are in EMH.

The EMH curriculum is designed for the child who cannot benefit from the regular curriculum. It is designed for children who learn slowly, who have short attention spans, slow reaction time and difficulty retaining material in both the short term and the long term. The curriculum also recognizes the difficulty an EMH child has in seeing similarities and differences, in learning by implication, in generalizing and in thinking abstractly. The curriculum thus involves much repetition and concrete teaching. Subjects are taught for short periods of time, in recognition of the children's short attention spans. The subject matter of the EMH courses is oriented toward socialization, language skills and vocational training. Academic subjects are taught, but on an elementary level and with the objective of helping the child become economically independent. The assumption of the EMH curriculum is that the child will not go on to college, and, in fact, children who graduate from EMH programs in the Chicago school system are given special diplomas which do not qualify them for college entrance.

These characteristics of the EMH program were described by plaintiffs' witness Dale Layman, a professor at the University of Illinois who specializes in training special education teachers and designing special education curricula. Dr. Layman had no argument with the EMH curriculum in Chicago, and believes it is well suited for EMH pupils. She testified that the underlying assumptions about the learning abilities of EMH students are valid, and that it is not realistic to expect a child who is genuinely retarded to be able to cope with the regular curriculum.

Dr. Layman and several other witnesses testified about the social stigma which attaches to a child who is assigned to a class-room for the retarded. While the teachers and school administrators attempt in various ways to protect the children, the evidence establishes without doubt that EMH pupils suffer from feelings of inferiority and that the label they receive in school often follows them throughout their lives.

An erroneous assessment of mental retardation, leading to an inappropriate placement of a child in an EMH class, is clearly an educational tragedy. However beneficial such classes may be for those who truly need them, they are likely to be almost totally harmful to those who do not. The two named plaintiffs in this case are examples of what can happen. Each of these children had learning disabilities but was erroneously diagnosed as being mentally retarded. Each of them scored low on a standard intelligence test administered as part of the assessment process. The two plaintiffs were assigned to EMH classes, where they spent several years. As a result of a belated re-evaluation, it was determined that these two children were not mentally retarded but rather were children in the normal range of intelligence whose learning was hampered by disabilities which are remediable.

The two named plaintiffs claim that their misassessment as retarded children was caused by racial bias in the standard intelligence tests they took, causing them to achieve low scores. It is claimed on behalf of the two named plaintiffs and the class they represent, consisting of all black children in the Chicago school system who are or might be assigned to EMH classes, that the use of racially biased intelligence tests in EMH placement violates the Equal Protection Clause of the Fourteenth Amendment as well as various federal statutes.1 Plaintiffs seek declaratory and injunctive relief. The principal relief sought is a permanent injunction against the use of standard IQ tests in the evaluation of black children for EMH placement.

The case was tried to the court over a period of three weeks in January 1980. Each side presented a number of expert witnesses, mostly psychologists and educators. Each side also offered a large volume of reading material, including a number of articles in psychological and education journals. At the conclusion of the testimony, I recessed to examine this voluminous material prior to final arguments. During the recess, the United States Department of Justice filed a motion for leave to file an amicus curiae brief and to participate in oral argument. Defendants objected to the motion, pointing out that the case had been pending for six years and that the Department of Justice had at all times been aware of it. The objection was overruled and the Department did file a brief and participate in the oral argument, which took place on March 11, 1980. The government sided with the plaintiffs on all issues.

It will be helpful at this point to indicate the organization of this opinion. The early sections will be devoted to a description of the factual contentions of the parties and an extensive description of the specific items on the three intelligence tests which are in issue. I will in some instances comment upon the merits of the parties' respective positions during the course of these descriptions, but generally I will save the statement of my own conclusions until later, infra at p. 872 et seq.2

The disagreement between the parties can be summarized briefly. It has been known since the early days of standard intelligence tests, around the time of World War I, that blacks as a group score about one standard deviation — 15 points — lower than whites. On the Stanford-Binet test, for instance, the mean white score is 100 and the mean black score is 85. While there is no disagreement as to the existence of this phenomenon, there is considerable disagreement about what causes it.

The psychologists who developed the Stanford-Binet test in this country, Terman, Yerkes and Goddard, believed that they were measuring innate mental abilities which were not subject to change. This was their concept of "intelligence." They explained the relatively poor performance of blacks, as well as that of many other groups such as recent immigrants to this country from southern and eastern Europe, on the basis of genetic inferiority.

The genetic view had wide acceptance among psychologists for a time, but it lost ground in the light of studies which showed that IQ scores were in fact not constant but were subject to change. The genetic view never did take account of the fact that many blacks scored above the white mean, but this seems to have been overlooked. However, it was more difficult to overlook the fact that northern blacks scored higher on the average than southern whites, and that blacks who moved north often experienced an increase in their IQ scores. Black infants adopted by white families tended to achieve IQ scores in later years which correlated highly with the scores of the natural children of the adoptive parents.

The current view of most psychologists is that IQ tests measure something which is changeable rather than something that is fixed for all time, something which can be increased and improved. The parties in this case agree on that much.

The question remains, what does the IQ score measure? Dr. Leon J. Kamin, a psychologist from Princeton University, testified for plaintiffs that the IQ tests measure "current performance." Dr. Kamin is the country's leading exponent of the view that the tests measure nothing innate. He writes and lectures extensively on the subject. He testified that in his opinion differences in performance on the tests are due solely to differences in exposure to "information" called for by the tests.

Dr. George Albee, a Professor of Psychology at the University of Vermont, was another witness for the plaintiffs who stated a similar view. He testified that the IQ tests measure a child's "sharing of the dominant white culture." Poor performance by a black child simply indicates his lack of exposure to white culture. It denotes nothing about the intellectual functioning of the child.

Defendants contend that the tests measure the child's current level of abilities which correlate significantly with his prospects of succeeding in school. Two school psychologists, Dr. Terrence Hines and Mr. Elmer Smith, testified for defendants that the IQ tests afford an indication of the areas of the child's mental strengths and weaknesses. According to Mr. Smith, who has a masters degree in psychology from Northwestern University and some 30 years experience as a school psychologist, the tests give an indication of the child's ability to retain factual information, to attend, to concentrate, to formulate new associative learning, and to perform simple arithmetic processes. These abilities are called for by the regular school curriculum, and accordingly the test results have some predictive value. Defendants' witnesses concede a slight amount of cultural bias in the tests but deny that this results in erroneous placements or deprives the tests of their usefulness. They point out that a diagnosis of retardation is not based solely upon an IQ score but upon a combination of relevant factors. These witnesses also emphasized that the IQ score affords a criterion that is relatively objective. They fear that, lacking the student's score on a standardized test, they would be forced to make the assessment upon a largely subjective basis.

This testimony, standing alone, does not preponderate in either direction. 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 with 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 result of doctrinaire commitment to a preconceived idea than they are the result of scientific inquiry. I need something more than the conclusions of the witnesses in order to arrive at my own conclusions.3

Plaintiffs produced only one witness who made any attempt to demonstrate racial or cultural bias in specific test items. This was Dr. Robert Williams, whose testimony we will discuss in detail at a later point in this opinion. The other plaintiffs' witnesses who expressed the opinion that the tests are biased did not attempt to demonstrate or illustrate their point by any reference to specific items on any test.

It is obvious to me that I must examine the tests themselves in order to know what the witnesses are talking about. I do not see how an informed decision on the question of bias could be reached in any other way. For me to say that the tests are either biased or unbiased without analyzing the test items in detail would reveal nothing about the tests but only something about my opinion of the tests.

Plaintiffs were ambivalent in their attitude toward the need to analyze the specific test items. On the one hand, they recognized the relevance of such an inquiry by presenting Dr. Williams' testimony concerning bias in particular test items. However, he testified about only a few of them. None of the attorneys for plaintiffs nor the attorneys for the Department of Justice were prepared to discuss specific test items during the day-long oral arguments at the conclusion of the case, even though I had indicated long before the conclusion of the evidence that I felt analysis of specific test items was essential to a proper understanding and decision of the case. I am not satisfied that any of the dozen or so attorneys who participated in the trial of the case have even read the tests. In response to a direct inquiry during final argument, some of them admitted they had not and the rest said they had "at one time, but not recently." Plaintiffs' attorneys, as well as one attorney for defendants, stated that they felt it was unnecessary to look at the tests.

I have said enough to indicate my belief that an analysis of the tests is essential. I will now proceed to that task. Plaintiffs' criticism of specific test items will be discussed as we go along.

Three tests are challenged in this case. They are the three intelligence tests most often used in the assessment of mental retardation in the Chicago public school system. Most children referred for evaluation are given one or two of these tests, and the one most frequently given is the Wechsler Intelligence Scale for Children, Revised. This is known as the "WISC-R."

THE WISC-R

The test is divided into twelve sub-tests, and each sub-test consists of a series of similar items of increasing difficulty. There are suggested starting points for children of different ages, and if a child answers the initial items for his age correctly, he is given credit for all items prior to that level. If a child is unable to answer the items for his age, the examiner goes backwards in the sub-test until he finds the child's level of performance. If a child is suspected of mental retardation, the test instructions require that the examiner start with the first item in each sub-test. In some evaluations only ten of the twelve sub-tests are used, but when a child is suspected of retardation all twelve are used.

The first sub-test on the WISC-R is "Information." Items 1 through 4 are suggested for ages 6 and 7. These four questions are as follows:

1. (The examiner, showing the child his thumb, asks) "What do you call this finger?" 2. "How many ears do you have?" 3. "How many legs does a dog have?" 4. "What must you do to make water boil?"

The acceptable "responses" for the first three questions are "thumb," "two," "four," and, for No. 4, "heat it . . . put it on the stove . . . put fire under it . . turn the stove on . . . cook it (or any such response indicating that the water must be heated.")

There are thirty questions on the "Information" sub-test, and the maximum number of points the child can obtain is thirty, one point for each question answered correctly. The examiner continues to ask the child questions, even beyond those designated for his age group, until the child misses five consecutive questions.

Questions 5 and 6 on the Information sub-test are the suggested starting points for 8 to 10 year olds. These questions are:

5. How many pennies make a nickel? 6. What do we call a baby cow?

The correct responses are "five" and "calf."

Questions 7 through 10 are suggested as the starting points for 11 to 13 year olds. They are as follows:

7. How many days make a week? 8. Name the month that comes next after March. 9. From what animal do we get bacon? 10. How many things make a dozen?

The acceptable responses are "seven" (except that if the child answers "five" he is to be asked "how many counting the weekend?"); "April," "pig . . . hog . . piggy," and "twelve."

Questions 11 through 30 are for 14 to 16 year olds. They become progressively more difficult. Question 11 asks for the four seasons of the year. They can be named in any order. Question 12 asks, "Who discovered America?" Acceptable responses are "Columbus . . . Leif Erickson, Vikings (Norsemen), Amerigo Vespucci. (If a child says `Indians,' say `yes, the Indians were already there, but who sailed across the ocean and discovered America?')."

Item 12 is the first on the WISC-R to draw the fire of the plaintiffs. Their witness Williams stated that this item is "absolutely insulting" to Native American children, since it implies that the land where their forebearers resided needed to be "discovered" by someone else. Dr. Williams also criticized the question as confusing, since it is a contradiction to say that something was "discovered" when it was already occupied. Whatever the merits of these reactions may be, Dr. Williams did not explain how Item 12 discriminates against black children as opposed to white children, and we assume that he was not attempting to establish any such discrimination.

Item 13 asks, "What does the stomach do?" The acceptable responses all center on the function of the stomach in digesting or holding food. Dr. Williams testified that many black children answer, "It growls." He attributes this to the fact that many black children come from poverty level families and simply do not have enough to eat. The point seems well taken, and, if no credit would be given for such an answer, it is clear that a black child would be penalized unfairly. The WISC-R manual instructs the examiner to give the child credit for any response which is similar to or better than the acceptable responses listed. (Manual, p. 61) On the other hand, the examiner is cautioned to adhere strictly to the test procedures outlined in the manual, since "to change the conditions of administration is to change the test results to an unknown degree." (Manual, p. 53) The test is to be administered by a trained psychologist, and one would hope that the child who answers that his stomach "growls" would either be given credit for an "equal to" response or at least that the response would come up for later discussion when the child is evaluated for placement. The test kit includes a record form which the examiner is to complete as he administers each item to the child. The manual instructs the examiner to record the response in sufficient detail so that it is preserved for later discussion. (Manual p. 63)

Item 14 asks, "In what direction does the sun set?" The answer is west, and if the child points, he is asked what direction that is. Dr. Williams did not criticize this question, but it was cited by Dr. Dale Layman in the only instance where a witness other than Dr. Williams mentioned a test item during plaintiffs' case. Dr. Layman said that this item would be unfair for a child who lives in a high-rise housing project and has never been on the west side of the building to see the sun set. It was not clear to us whether Dr. Layman was basing her opinion upon actual experience with this test item or not. She did not specifically say that she has encountered any such difficulty with this question.

Questions 15 through 20 ask what month has an extra day during leap year; who invented the electric light bulb; from what country did America become independent in 1776; why oil floats on water ("because it is lighter . . . it's not as heavy . . it's less dense . . . it's not heavy enough to go to the bottom . . . it's more buoyant . . . water is heavier); name the two countries that border the United States (both must be named for credit); and how many pounds make a ton (credit is given for 2,000 or any answer from 2,200 to 2,240, since the child may be referring to a metric ton). No witness referred to any of these questions.

Question No. 21 asks, "In what continent is Chile?" Dr. Williams criticized the question by saying, "That's hardly our environment." Since the WISC-R manual defines intelligence as ". . . the overall capacity of an individual to understand and cope with the world around him," Dr. Williams says the question does not measure intelligence. Considering that this test item is the twenty-first of thirty items on the Information sub-test, it is doubtful that a school-age child suspected of retardation would even reach it. One problem we have with Dr. Williams' testimony is that he never referred to the age level for which the various items are recommended. In any event, it does not appear to us why the location of Chile would be more familiar to a white 14 year old child than to a black 14 year old child.

Question 22 asks, "What is the main material used to make glass?" The acceptable responses call for a reference to sand, silica or quartz.

Item 23 asks, "What is the capital of Greece?" Dr. Williams criticizes this question on the same basis he found fault with the question about Chile; "Athens is not a part of our environment."

Item 24 asks, "How tall is the average American man?" Any answer from 5 ft. 7 in. through 5 ft. 11 in. is acceptable. The examiner is specifically instructed not to give credit for 5 ft. 6½ in. or 5 ft. 11½ in. Dr. Williams criticizes this item on the basis, again, that it does not test a child's ability to cope with his environment.

Item 25 asks, "What is a barometer?" Any answer which indicates that it measures air pressure or forecasts rain or weather is acceptable.

Item 26 asks, "What causes iron to rust?" Any answer indicating oxidation is acceptable.

Item 27 asks the distance from New York to Los Angeles, and any answer from 2,500 to 3,500 miles is acceptable.

Item 28 asks, "What are hieroglyphics?" The acceptable responses are anything indicating ancient writings or symbols. Dr. Williams expresses dissatisfaction with this item, again because it is "still not a part of this culture."

Item 29 asks, "Who is Charles Darwin?" Dr. Williams testified:

If you're going to ask kids questions about their environment, the better questions would be, would relate to folks that they're familiar with, people with whom they come in contact or they read about and who are part of their particular black culture. That would be a better estimate. For example, why not ask them who is Malcolm X, who was Martin Luther King, or who were some of these people that they would have had an opportunity to learn about, rather than Charles Darwin who was an Englishman.

Dr. Williams finds it ". . . interesting, again, that Darwin would be included in a question, here. As I indicated before, he wrote Origin of the Species, and that he also had a very negative theory against black people."

Finally, Item 30 on the Information subtest is, "What does turpentine come from?" Any answer indicating a fir or evergreen tree is acceptable.

To summarize plaintiffs' specific criticism of the thirty information items, No. 13, the stomach question, is said to be biased against black children because they would be more likely than white children to think of a stomach as something that growls rather than something that digests or stores food. Item 14, the direction in which the sun sets, may also have been criticized by Dr. Layman as a question that penalizes black children who live in high-rise projects. This is not clear. These are the only two items of the thirty as to which some rationale has been suggested to explain why a black child would respond differently than a white child. Six other questions, 12, 21, 23, 24, 28 and 29, are criticized as not relevant to a child's "environment." Dr. Williams stated why certain other persons would be better known than Charles Darwin to black children, but it seems likely that there are names which would be better known to white children as well. For instance, it may be that white children would be more apt to know about Malcolm X and Martin Luther King than Charles Darwin. If not, it would still be easy to think of other names that are better known than Darwin. But the object of the test is not always to ask for information that is well known to everyone. The Darwin question is 29th in a list of 30 items arranged in order of increasing difficulty. It is a question which most children are expected to miss. It is not a realistic possibility that any child, white or black, would fall below a score of 80 on the test — the dividing line defendants use for EMH eligibility — because of missing this question. A child who is going to score low on the test will simply not reach the question.

The other items which are criticized for not being part of a child's "environment" are not claimed to be any more directly related to the everyday experience of a white child than they are to t