A month ago, I wondered what Sonia Sotomayor might think about teacher tests, as the more rigorous ones typically have a “disparate impact” on minorities; African-American and Hispanic candidates fail them at much higher rates than whites do. Now that the Supreme Court has decided the Ricci v DeStefano case, I decided to ask school law expert Joshua Dunn, an assistant professor of Political Science at the University of Colorado-Colorado Springs, co-author of Education Next’s Legal Beat column, and co-editor of the forthcoming Fordham/Brookings Institution Press volume Schoolhouse to Courthouse, for his opinion. Here’s what he had to say:

It appears that as long as states take care in crafting their tests and showing they are job related they should be safe from litigation.  To sue over teacher tests, plaintiffs would have to produce a test that accomplishes the same objectives but does not have a disparate impact.

What might such a test look like? Perhaps performance assessments–whereby teachers give model lessons for groups of evaluators–might not result in a “disparate impact.” But I haven’t seen any research that shows that such assessments are strongly predictive of teacher effectiveness, as tests of verbal ability are.

So like Josh says, states are probably in safe legal territory with their teacher tests. But they will likely play it even safer by keeping the cut scores on said tests fairly low, so their “disparate impact” is not so extreme. (If virtually everyone passes the test, it can’t be said to have a disparate impact.) And while that might be good legal strategy, it’s not the best public policy for our kids.

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