Focus on Fixing the Schools: Pass Discrimination

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Victor Acevedo grew up in the South Bronx, the oldest in a family of nine children, scraping by on welfare. His dad, a day laborer, was an alcoholic, so it usually fell to Acevedo to get his brothers and sisters off to school and to hound them about their homework at night. He was the first in the family to graduate from college. When he then got his Masters degree and became a teacher, he recalls, “they were all so proud of me.”

He has now taught social studies in the New York City public schools for 21 years, 14 of them at Seward Park High School on the Lower East Side, whose multiracial character he has thoroughly embraced. He teaches in both English-language and Spanish-bilingual classrooms, and he also directs the annual Latin America Show; runs the Bangladesh Club; and studied Chinese so he could communicate with immigrant students and their families. Seward Assistant Principal Geoffrey Cabat, who has supervised Acevedo from the beginning, calls him “an excellent teacher, someone who’s always, always willing to go the extra mile. In any organization, those are the most valuable people.”

Acevedo is the kind of teacher you’d wish on your kid.

But in September 1994, six years after receiving tenure, Acevedo got a letter in the mail notifying him that his license had been terminated. He had not passed a newly instituted state teacher exam, so he was being demoted to a position as a regular substitute. Immediately, his salary was cut by $12,000 and he lost his seniority, job security, and many benefits. Now, says Acevedo, “I can be bumped any time. I’m still asked to give guidance to new teachers, but now these same teachers could replace me.” He sighs. “I’ve been teaching all my life, and I still like teaching. I like the subject, I like my kids, but I don’t like this humiliation.”

After years of suffering separately, Acevedo and dozens of other fired or demoted teachers formed the Committee for a Fair Licensing Procedure and filed a federal civil rights complaint in 1996. A related suit, brought by the Center for Constitutional Rights on behalf of at least 2,000 African-American and Latino teachers, is coming to trial this fall in Manhattan federal court before Judge Constance Baker Motley.

The plaintiffs charge that pass rates for certain exams required for a state teaching license are so racially disparate as to be illegal. While the standardized exams-the Liberal Arts and Sciences Test (LAST) and its predecessor, the National Teachers Examination (NTE)-were designed to test basic knowledge and communication skills, no clear data exists to show that what they test is relevant to the classroom. (Teaching ability and mastery of subject areas are tested separately, with little racial disparity in the results.) “The tests don’t measure knowledge or pedagogical skills that have anything to do with teacher performance,” says lead attorney Barbara Olshansky, “and yet they’ve been used to demote teachers or bar them from getting a permanent license.” According to court papers, the passing rate for white test-takers on the LAST is 93 percent, while the passing rate for African Americans is only 56 percent, and for Latinos, 50 percent. When the NTE was in use, those ratios were even worse.

The teachers’ cause has caught the attention of elected officials and advocates working to improve public education for black and Latino children. “There is a growing debate regarding standardized testing, the one-size-fits-all approach,” says state Assemblymember Adriano Espaillat, who has sponsored legislation to promote certification of bilingual teachers. “Here, where the results are clearly stacked racially, it’s justified to question whether there’s a level playing field.” Plaintiffs seek not only to have their licenses, seniority and back pay restored, but to prohibit the city and state from requiring the exams in the future, for either longtime teachers or new applicants.

Edith Hunsberger, a supervisor in the state Education Department’s Office of Teaching, argues that any racial disparity in the outcome is likely to do with differences in educational background, saying, “You can’t blame the thermometer for the temperature.” Hunsberger adds that the qualities the LAST measures are vital classroom requirements. Kevin Ortiz, a spokesperson for the Board of Education, a codefendant with the state Education Department, calls charges of racial discrimination “ridiculous.”

But it’s hard to dispute that revoked and denied licenses have taken a toll on teachers. One phys ed teacher of 18 years, Gregory Muriel, lost his home after getting his license revoked and pay slashed. JosŽ Rosa, who had worked for eight years with a provisional license in bilingual special ed, lost his job and his insurance while facing near-kidney failure. Faustina Lee, who’d been teaching first grade on a provisional license for eight years, ended up on welfare while trying to appeal her dismissal, an experience she calls “devastating.” Each fell short of passing the exams by a handful of points.

The full educational impact will only become clear in the fall of 2003, when a directive from state Education Commissioner Richard Mills goes into effect, removing all unlicensed teachers from classrooms. The move could eliminate nearly 30 percent of the city’s already disproportionately low number of black and Latino teachers, many of whom lack licenses only because they’ve failed a state exam. “It’s getting rid of model teachers in a city where the majority of the students are children of color,” says Olshansky. A number of the affected teachers, she adds, were licensed in chronic shortage areas, such as bilingual and special education.

In a city where the public school student population is 85 percent black, Latino and Asian, the teaching force remains 64 percent white. This is a big change from the 1960s, when 9 in 10 teachers were white, but doesn’t match the progress made by other urban school districts, like Los Angeles, whose teaching force is 52 percent people of color.

The national romance with test-based standards is the latest obstacle in the decades-long struggle to integrate the teaching staffs of urban schools. With 42 states now using standardized exams to license instructors, the lawsuit’s contention that such testing is a racially fraught process is not an isolated one. Last year, a National Academy of Sciences report found racially disparate outcomes in every one of the five widely used exams it reviewed. Alabama and California teachers have also sued over licensing tests.

Like all school testing, teacher exams are extremely political, and their results are used to do far more than decide who enters the classroom. Several predmominantly black and Latino teacher education programs in the South, for example, have been threatened with closure due to low pass rates on teacher tests. For defenders of public education, standardized testing has become an expedient way to show that teachers as well as students are succeeding; at the same time, high failure rates may provide ammunition for privatization. “Teacher testing is very frustrating,” notes Bob Schaeffer of Fair Test, a Cambridge-based research group that opposes the use of high-stakes exams, bothde “because it appeals to those who genuinely want to see teaching and learning improved, and to people who want to undermine public education in any way they can.”


City certification requirements are arcane, to say the least. Teachers may enter the classroom with a provisional license after fulfilling minimum requirements, and they are given five years to fulfill the rest-graduate education credits, a Master’s degree, classroom experience, various exams-to get a permanent license and tenure. The city, prodded by changing state mandates, has tinkered with the exam portion incessantly for the past 18 years. First, the longstanding rite of certification-oral and written testing by the Board of Examiners-was replaced with the five-subject NTE. Later came a customized battery of tests, including a teaching skills exam, a content specialty exam, and the LAST, instituted in 1993. All have served as barriers to licensing for successive generations of new teachers.

National Evaluation Systems, which designed the LAST, has run into trouble with its exams in the past. Its test for Alabama was thrown out in the mid-1980s after a court found that the company had faked evaluation data; more recently, the National Academy of Sciences study chastised it for failing to turn over enough technical information about its exams to make an assessment possible. Overall, says Fair Test’s Schaeffer, NES’ reputation is “quite poor. They’re thought of as repeat offender, a company that will deliver the low bid and claim to meet whatever specs there might be.” Hunsberger stands by the LAST, saying, “This is a high-quality test where we invested very heavily in the appropriateness and authenticity of the materials, where the questions and passing standards have been reviewed by teacher committees for bias and content.”

But the broader question may be, according to Schaeffer, “Is filling in bubbles on a Saturday afternoon really a better standard than assessment of performance over time? Fair Test is groaning with data that teacher tests fail to predict accurately who is likely to be an adequate entry level teacher.” A Tennessee study, for example, found no relationship between principals’ evaluations and test scores; one in Georgia found some correlation between grades in teacher ed programs and classroom performance, but none between performance and scores on teacher exams. A seven-year study of 4,000 Fresno, California, teachers likewise found zero correlation between teacher test scores and principals’ evaluations of teachers’ competence, communication skills, or student achievement in their classrooms.

Local parent groups tend to be concerned less with licensing than with whether teachers are able to educate their children. Yvette Grissom, an organizer with Queensbridge Community in Action, works with parents in the city’s largest housing project. Schools in the neighborhood, which is about 95 percent black and Latino, have a total of only four or five teachers of color, she says, and there are almost no teachers who can communicate with Spanish-speaking parents. What Queensbridge parents want, she says, are “teachers who are caring, who have high expectations, and who are teaching within their area of expertise.” She says their kids are often viewed as behavioral problems, not learners, and that parents long for teachers who “know the children they’re dealing with, and understand the community that the children live in.”

Michele Macklin, an award-winning teacher with 19 years of classroom experience under her belt, teaches in the same neighborhood, Mott Haven, where she grew up. “My students and I identify with each other,” she says, “and they know that I’m always around. I see them in the supermarket, at the laundromat; they know my family.” Macklin says that this kind of connection allows teachers and parents to work together to facilitate learning. Yet Macklin was a casualty of the LAST requirement, too: she had her license revoked in 1994 and salary slashed-until she finally passed the exam and slowly worked her way back up the pay scale again.


With the Board of Ed and the state Department of Education united behind the exams, the United Federation of Teachers has been reluctant to join the fray. The UFT did issue a procedural challenge in state court in 1996, only to lose the case. At the time, UFT president Randi Weingarten had strong words: “It’s ridiculous for the board to ask these licensed, experienced and very competent teachers to start over now. And it is especially hard to understand why the board or the state would force them to take the NTE tests after all these years of proving what competent-and in some cases what outstanding-teachers they are.”

These days, the UFT is confining its efforts to reminding unlicensed teachers of the fall 2003 deadline and offering test coaching classes. Says union spokesperson Ron Davis, “We can only hope that they will be able to do all this and pass the test while holding down their jobs.”

Olshansky recalls that when she asked the UFT to sign on as federal plaintiffs in 1996, she was told that the union feared a civil rights case would divide the membership. (The UFT’s current corporation counsel, Carol Gerstal, declined to comment.) Union members facing license termination who approached the union directly for help typically describe the response as Acevedo does, as “very cold-almost hostile.”

Marc Pessin, founder of the Committee for a Fair Licensing Procedure, says the UFT’s reticence is likely related to its quest for higher teacher salaries: “They have given up on traditional trade union tactics such as work actions, their political strategy of supporting incumbents failed to produce raises even during surplus years, so what’s left? A professional strategy: teachers are professionals; we pass tests just like doctors and lawyers; we meet high standards, so pay us more.” Union leaders, he says, can hardly challenge the validity of an exam they are trying to wield as a negotiating tool.

There is an additional political consideration at work. Pessin, Macklin, Acevedo, and the entire committee formed a dissident caucus within the UFT in 1995, shortly before the suit was filed. Macklin says the caucus’ agenda is to unite parents, teachers and students as a force for educational success; to fight racism directed at students or staff; and to put quality of life issues, like state-of-the-art facilities and smaller class size, ahead of salary demands-not exactly in step with current UFT priorities. Pessin and Macklin have each headed the Progressive Action Caucus slate in challenges to Weingarten’s leadership, and Acevedo is the one PAC member on the UFT executive board. The lawsuit, by association, has become a hot potato for elected officials eager to maintain ties with the UFT; a few who have been supportive behind the scenes declined to comment for this article.

But the teachers suing the state will need allies to help them establish alternatives to the tests. They want to see a new certification process that combines educational requirements, classroom observation, and a long-term mentoring with evaluation by master teachers.

Their proposal is much like one under discussion by a leading education reform group in the city, the Parent Organizing Consortium. Based on interviews with local teachers, parents working with the consortium member Cypress Hills Advocates for Education identified isolation, inadequate training and lack of support as significant obstacles to good pedagogy. They’re hoping that consortium-affiliated schools can pilot a model like that developed in Rochester, which offers intensive training to new teachers and counsels poor performers to seek other professions. Cypress Hills organizing director Emily Blank says she’s convinced that existing teacher tests don’t have much to do with how well students do: “Compared to other districts with low student scores, we have a fairly high percentage of certified teachers, so the problem isn’t certification.”

Macklin, the new chair of the Progressive Action Caucus, says that testing isn’t so different for teachers than it is for students, who now grapple with Regents exams that can block their graduation despite a successful academic career. “We’re not opposed to testing, but to unfair testing,” she says. “I know very bright students who do not test well, and some adults are that way, too. A full evaluation should be performance-based. No written test on its own can do that.”

Esther Kaplan is a Brooklyn-based freelance writer and a radio producer on WBAI and WNYE.

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