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A controversial basic skills test given to California educators survived a challenge Monday from minority teachers who charged that it favored whites. But at the same time, the 9th U.S. Circuit Court of Appeals held that such tests can be challenged under Title VII, believed to be the first time an appellate court has ruled that standardized teacher tests are subject to such civil rights laws. The decision was the result of a hodge-podge of adverse alliances within the 11-member en banc panel and featured dissents on five separate issues. Judge Susan Graber wrote for the majority, holding that the California Basic Educational Skills Test, which whites pass at far higher rates than minorities, did measure skills necessary to be a California public school teacher. “In short, there is evidence — even if not overwhelming evidence — that the development and evaluation of the CBEST were appropriate and that the test measures the types of skills it was designed to measure,” Graber wrote. Under employment law, such tests must be analyzed to ensure they measure skills related to the performance of the job in question. A central question in the CBEST appeal was whether the state’s analysis and validation of the test was proper. Judge Stephen Reinhardt, joined by Judges Mary Schroeder and Sidney Thomas, dissented from part of the ruling, writing that Title VII did apply but that the test wasn’t properly validated. “As a result of this ruling, qualified minority educators — teachers, administrators, librarians and other officials — will be denied the opportunity to work in California’s severely understaffed public schools, simply because they failed to pass a test that concededly has a disparate impact on minority group members,” Reinhardt wrote. Eighty percent of whites pass the test the first time they take it. Just 38 percent of African-Americans do, while the numbers are only slightly better for other minority groups: 47 percent for Latinos and 53 percent for Asian-Americans. While Mexican-American Educators v. California, 00 C.D.O.S. 8675, was being litigated, the state removed several questions after a consultant questioned their relevance. Questions about fly fishing and essay topics on the applicants’ summer vacations, for example, were removed after being attacked as elitist. “In our eyes the test has never been effectively demonstrated to relate to effective teaching,” said John Affeldt, managing attorney at the San Francisco-based nonprofit Public Advocates Inc., which brought the suit. Nevertheless, Affeldt was happy with the Title VII ruling. Attorneys for the state could not be reached for comment. The decision vindicated U.S. District Judge William Orrick Jr. An earlier three-judge 9th Circuit panel had remanded the case to Orrick with directions that the plaintiff educators pay the state’s attorneys’ fees. Orrick had held that since the issue was of compelling public importance, no fees would be awarded. The state had asked for about $200,000 in fees. Such an award would have had a “chilling effect” on civil rights litigation, Affeldt said. At least four judges said the majority got it wrong on the fees issue, with Judge Ferdinand Fernandez writing that it betrayed a bias toward plaintiffs. Several wrote that the Title VII decision either was wrong or should not have been reached. Judge Andrew Kleinfeld even wrote to say the court was skinning the cat too many ways. “The law is hard to figure out when a reader needs a scorecard to count votes on an issue by issue basis,” Kleinfeld wrote. “Careful jurists can fall into disagreement on how to keep score.” Nevertheless, Kleinfeld authored his own partial dissent, reasoning that he had to “write something” because otherwise “readers of the opinion cannot figure out who stands where, and what the count is.”

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