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A closely watched case over standardized testing for California teachers will apparently come down to how well the test itself was tested. An en banc panel of the Ninth Circuit U.S. Court of Appeals heard arguments Tuesday in a suit filed by minority teachers challenging the validity of the California Basic Educational Skills Test, which has so far survived years of legal battles. “We all want quality education in our public schools, but we can’t get quality with an invalid, discriminatory test,” John Affeldt, an attorney with San Francisco’s Public Advocates, Inc., told the court Tuesday. Affeldt brought the suit on behalf of Hispanic, Asian-American and black teachers who allege the test violates their civil rights. But the Ninth Circuit appears ready to validate the test, which asks questions of potential teachers at what U.S. District Judge William Orrick Jr., in upholding the test in 1996, said was at best a 12th-grade level. “I don’t get how [mathematical percentages] can be other than a basic skill,” said Judge Andrew Kleinfeld. “If a … teacher doesn’t know basic percentages, they are going to ruin people’s transcripts with bad grades.” Kleinfeld was part of the original three-judge panel that ruled for the state. “Obvious, but unmeasured, assumptions about what teachers need violates the law,” replied Affeldt. While in litigation in 1995, the test was revised. The state removed dozens of math questions after an analysis showed they had no relevance to teachers’ jobs. Under employment law, such questions must relate to a specific job. Affeldt tried to hold up the state’s move as evidence the test was faulty, arguing it was the first time the state bothered to check whether CBEST was relevant to job performance. But R. Lawrence Ashe Jr., of the Atlanta office of L.A.’s Paul, Hastings, Janofsky & Walker, said Orrick had ruled that the test was indeed reviewed, once in 1982 prior to implementation and again in the early 1990s. He also stressed what he said is the simplicity of the test, presenting a huge board showing two questions: one asking how many children can be fed from a certain number of gallons of milk and the other about the percentage of a price increase from $4 to $6. They were the first and fifth hardest questions on the test, respectively, Ashe said. “This is not rocket science material,” Ashe said. “The results, frankly, are a strong indictment of the lack of educational opportunity in this country. There is a message. But let’s not shoot the messenger.” Recent statistics show about 80 percent of whites pass the test on the first try. Statistics for other minority groups hover around 50 percent or below. Would-be teachers and administrators may take the test until they pass. Chief Judge Procter Hug Jr. asked Ashe why a kindergarten teacher needed to know how to convert measurements. Ashe replied that any role model should be able to handle such simple calculations. Critics have said the test is Anglo-centric. In the past, questions asking about fly fishing and how the test-taker spent summer vacation have been criticized as elitist. Perhaps picking up on Hug’s question, Affeldt further argued that the test doesn’t differentiate between job descriptions. “You can’t treat the librarian as a school princicpal,” Affeldt said. The case is Association of Mexican-American Educators v. California, 97-15422.

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