Is Requiring Basic Competence by Teachers Racially Discriminatory?
And Other Lessons About the Lawsuit Straitjacket That Strangles Public Schools
By Dan McLaughlin Posted in Law — Comments (14) / Email this page » / Leave a comment »
If you are tempted to wonder at why our public schools operate at such a disadvantage, two recent decisions by the United States Court of Appeals for the Second Circuit help illustrate the problem. In the first, Gulino v. New York State Education Department (2d Cir. Aug. 17, 2006), the Second Circuit reinstated a race discrimination suit against the New York State Education Department based on the theory that a test of "basic college-level content" that asks applicants to get just two-thirds of the questions right is racially discriminatory because it has a "disparate impact" on African-American and Latino teachers. The test, developed in response to a 1988 task force report on problems with teacher quality, is described at pages 11-13 of the opinion.
Read on ...
There are two immediate things that rub me the wrong way about this notion. First of all, isn't it racial bigotry to assume that lower pass rates for African-American and Latino teachers are because they are African-American and Latino, and therefore likely to persist indefinitely into the future? This isn't the 1870s, when it was reasonable and realistic to assume that black people were illiterate sharecroppers. If there are higher fail rates, that presumably is because African-American and Latino applicants are suffering from some intervening problem not caused by skills testing - i.e., bad schools in their own neighborhoods.
And second, why are those schools bad? In part because lawsuits like this one force the state to keep hiring teachers who lack basic competence in their subject matter. And where do you think those incompetent teachers end up teaching? There's your real disparate impact.
Instead of recognizing and deferring to the common-sense judgment that a test of basic educational competence is related to the job of being a teacher, the Second Circuit (relying, it must be said in the court's defense, in substantial part on Supreme Court precedents) sets a demanding test of empirical expert evidence before a public school can "validate" a test's relatedness to job performance. (The validation standard is discussed at pp. 36-48 of the opinion). The ridiculousness of this is exacerbated by the difficulty of finding an objective measure of teacher job performance. Nowhere in this process are schools allowed to excercise common sense in figuring out what makes a good teacher.
The second decision came yesterday in Guiles v. Marineau (2d Cir. Aug. 30, 2006), in which the Second Circuit rejected a school's effort to prevent a student from wearing a T-shirt with obnoxious political content:
The front of the shirt, at the top, has large print that reads "George W. Bush," below it is the text, "Chicken-Hawk-In-Chief." Directly below these words is a large picture of the President's face, wearing a helmet, superimposed on the body of a chicken. Surrounding the President are images of oil rigs and dollar symbols. To one side of the President, three lines of cocaine and a razor blade appear. In the "chicken wing" of the President nearest the cocaine, there is a straw. In the other "wing" the President is holding a martini glass with an olive in it.
Directly below all these depictions is printed, "1st Chicken Hawk Wing," and below that is text reading "World Domination Tour." The back of the T-shirt has similar pictures and language, including the lines of cocaine and the martini glass. The representations on the back of the shirt are surrounded by smaller print accusing the President of being a "Crook," "Cocaine Addict," "AWOL, Draft Dodger," and "Lying Drunk Driver." The sleeves of the shirt each depict a military patch, one with a man drinking from a bottle, and the other with a chicken flanked by a bottle and three lines of cocaine with a razor.
Slip op. at 3-4. The court, noting the Supreme Court precedents granting free speech rights to public school students in their attire but permitting some limitations on those rights in the case of "plainly offensive" speech, concluded:
While what is plainly offensive is not susceptible to precise definition, we hold that the images depicted on Guiles's T-shirt are not plainly offensive as a matter of law.
Id. at 16. On the law, this was probably correct, and of course I don't think this sort of concentrated moonbattery, silly as it is, should be illegal. But I fail to see what interest of society is served by letting school kids wear shirts with any sort of message to school. (I went to schools with uniforms and, in high school, a dress code that had no room for T-shirts). Granted, this particular incident came to a head on a class trip, but why schools should end up being embroiled in these sorts of controversies at all is beyond me.
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Is Requiring Basic Competence by Teachers Racially Discriminatory? 14 Comments (0 topical, 14 editorial, 0 hidden) Post a comment »
...maybe "teacher" testing should be geared toward self-defense ability and other corrections-officer skills. Then they'd be testing them on what the actually do all day.
try and bring a bible into school and he'll find out how far free speech goes. Or try wearing a T-shirt that goes against liberal sacred cows, free speech being a sometimes thing.
Like affirmative action, of which the court ruling was a part, rigging tests in favor of particular groups must be structurally discriminatory. But why should irrationality stand in the way of a judges whim, or an increasingly debased legal system?
"a man's admiration for absolute government is proportinate to the contempt he feels for those around him". Tocqueville
. But I fail to see what interest of society is served by letting school kids wear shirts with any sort of message to school.
That's the choice the school makes: if it allows "free" dress, so to speak, meaning no uniforms, then it must be message-neutral on the issue of what the student's clothes say, with common-sense exceptions for offensive, disruptive, etc. This short, while packing every left-wing bumper sticker into one shirt, is clearly not plainly offensive or disruptive, just as some of the Clinton stuff sold by Rush over the years was not (I still laugh over the watch with Clinton hands that ran backwards). Political commentary (even uber-juvenile commentary such as this) must be protected by the 1st Amendment, I would think.
And johnt, this is a common talking point often debunked. Children bring bibles and wear conservative clothing into schools all the time without hassle; on those occasions when left-wing teachers try to suppress their free speech, decisions such as this bolster the student's rights.
Posts aren't meant to be full length books, the larger point being that some viewpoints are given more latitude than others. The animus against religion in whatever form and however expressed in public schools may be welcome to you but that it exists and is a selective exercise of free speech is incontrovertible. The disputes over a moment of silence I would think are an example of how far the debate has gone in one direction. Again, maybe welcome to you but a restriction nonetheless.
The case where a valedictorian had her microphone cut off when she mentioned God comes to mind and I have read of cases where bibles have been taken from students in school.
Not keeping a scoreboard or having tacked news reports to my wall I won't go into a laundry list of citations. I trust your perusal of the last sixty years or so of jurisprudence will suffice.
As to speech in general, allow me to leave you with this thought; for whom in particular and in general is the term and practice of "hate speech" aimed? A hint, the concept was not initiated or advanced by conservatives, nor I may add, encoded by them.
May I close by saying the exception hardly proves the rule. You may use the word debunked as you will but it hardly reverses the preponderance of opinion, practice, case law, and media support that goes by the generic name of liberalism.
And that is what I wish to see "debunked".
"a man's admiration for absolute government is proportinate to the contempt he feels for those around him". Tocqueville
To impart to me a welcoming attitude towards suppression of religious speech, but subtly assuming my motives are nefarious doesn't make the discussion less true. In true form to the attack, let me wearily and needlessly state that I oppose free speech restrictions across the board, being a Catholic myself and seeing first-hand the institutional bias against religous speech.
Of course anecdotes exist: they exist on both sides of the spectrum, and we need to be vigilant against them. It's important to remember that court cases such as these should be welcome to believers in free speech, as they will strengthen the inevitable cases where an anti-religious zealot tries to suppress the free speech right of an evangelical Christian.
Also, just to destroy your biases completely, know that I oppose most if not all hate-speech regulations. Campus speech codes are yet one more example of where someone's hurt feelings someone justify suppression of speech, and it needs to be fought everywhere. I feel that we see the sad evolution of these laws now in Europe, where nearly any religious speech can be a crime, and I feel that the more cases we get where a court stops someone from infringing on free speech rights, the better we all are.
This case should be welcomed by free speech advocates, not grumbled over because the shirt in question was anti-Bush. Sadly, the right of students to wear anti-gay t-shirts has been recently denied as well, and I agree with Kozinski's dissent on this, it should have been allowed. I never said the playing field was level yet: we need to make it so by being advocates of free speech. This juvenile t-shirt is part of that speech, stupid as it is.
I hope the clarity of both your past and future posts postpone any need for weariness. I do stand corrected on your overall position but the free speech portion combined with the last paragraph led to a conclusion not totally unwarranted.
I would suggest that your optimism regarding free speech might be to rosy, the secularists have largely cleared the field, the horse out of the barn, save the tail.
Hate speech and banning of anti-gay T shirts are other indicators that a unfetterd,open field free speech environment is one that conservatives will face in much more of an uphill struggle then their opponents. But one can hope.
I do have to point out that the assumption of your nefariousness escaped me, apart from commenting on what I percieve to be current trends and conditions.
I might also add my biases remain undestroyed, they being larger than a single exchange or a single person.
"a man's admiration for absolute government is proportinate to the contempt he feels for those around him". Tocqueville
This shirt could've been banned for the drug content alone. Go to a public school with a marijuana shirt and see how long it takes to get hauled into the principal's office. You can't wear drug paraphanalia shirts to school, unless they are anti-Bush, I guess.
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"I am a great believer in luck. The harder I work, the more I have of it." -- Thomas Jefferson
When my wife was in High School a guy got sent to the principles office for wearing a Canadian Flag on his cap. The teacher thought it was marijuana.
SO what if all competency tests are full of cultural bias? So what? You still need to master those basic skills to get ahead in life here in the USA.
"Nothing works like freedom, Nothing succeeds like liberty"
Kyle
Disparate impact cannot be used to determine whether or not something is discriminatory. It's ridiculous. Like so much of racial politics. We've allowed the left to name racism as THE cardinal sin, above rape, child molestation, even murder. No charge is so perfectly powerful for the left.
Racist!!!
Witch!! Burn the witch!! What's the difference? I no longer care about people being judged, and I no longer care on what criteria they are judged. Racism, thanks to the left, has lost all meaning. I just don't give a flip about it anymore. I don't even believe there IS such a thing anymore. After all, what's the difference between judging someone based on their race and the thousand other things that everyone, liberals included, use to make judgements about others every day? What's the difference?
Does race even exist? Aren't racists really culture-ists? And even if they aren't, what difference do they make? What difference does their racism make? At one time we knew the answer to that. Nowadays, when racism can simply mean fewer black people in the room than white people, we can no longer say what the impact of racism is. It's meaningless.
After spending a length of time in one of our major hospitals caring for our son, I can state that about half the staff at all levels have the same competency problems that teachers clearly do. And yes, there probably is an affirmative action component to this. (This hospital is being hit with AA action regarding the number of minorities employed, although I saw no evidence that any minority was poorly represented at any level of staff from MDs to janitors.) While I observed minorities at all levels being highly competent, I would have to also say that more of the incompetent were minorities with weakness in background and english.
Our society has far too many people of minimum competency doing everything from taking fast food orders to nursing to teaching. Competency testing and continuing education need to be taken seriously before the ten percent who make things work is overcome by events.
So yes, lets scrap cries of racism, I don't see it anymore. But lets keep pushing for more and better learning. And note, I don't really believe we should kick people out for incompetence, they seem to find a place and something to do, but we can and should force continued learning and make sure that teachers, nurses, doctors, Et Al are competent or are watched over by one who is.
Never underestimate the ability of modern medicine
Here in California, prospective teachers must take the CBEST exam, which is a 10th grade English and math test. It's very similar to our high school exit exam.
Several lawsuits were filed over this exam, as black education students and teachers insisted it was "biased". They lost.
I'm terribly sorry, but if you can't pass a 10th grade exam, you have no business teaching no matter what color you are.
Sometimes I think that liberals will never, ever move on from the "race" business. It seems to be the central element of their existence.
a degree in education, should be able to pass a basic competency test, no matter what their cultural background is.
If they can't pass the test, they don't need to be teaching.
And we wonder why so many kids in the US can't read, write or do math.
Coupled with the illogic assumption that objective hiring and performance criteria cannot be created for the education profession. The fact that this case even made it to court is sad but explains much as to why our public school system is failing our children.
Si vis Pacem, Para Bellum