If the “student’s actual performance or lack of it” is the problem, is that not the same as arguing that the disparate impact is the result of disparate performance and therefore represents no bias on the part of those who subsequently administer tests, that the problem originated earlier?

This could still leave potential lawsuits against the public school system itself for inducing the disparate performance in the first place, I would think, barring the assumption of genuine racial differences in ability, a defense I doubt the educational system would consider.

IANAL, but it seems to me that the white elephant in the room is disparate performance and who is responsible for that. Rather than argue that “the scores do not reflect the student’s actual performance,” I would think the test administrators would want to argue that the scores do, very accurately, reflect performance, as they are undoubtedly intended to.

And who is responsible for that performance? Is the Dept of Ed just using a “best defense is a good offense” strategy to avoid such a simple argument that might leave the Dept itself as defendant?

Also:
Bill vetoed by California Gov. Brown would require state university professors seeking tenure to engage in “service.” Research, teaching don’t count?
The right question to ask is why have tenure at all? Its main effect seems to be to protect radical profs who insist on indoctrinating their students in hateful views such as Marxism and female supremacism (and punish dissenters with undeserved bad grades) from well-justified and necessary firing. Somebody — I suggest FIRE — should start a campaign to abolish the very existence of tenure.

And while we’re at it, universities should take a very close look at the views of the managers who decide whom they will admit and/or hire, and fire from those positions anyone who believes that those decisions should not be absolutely color-blind.

Can the defense not argue that the lower scores of the minority students are themselves an obvious disparate impact?

The educational system has produced measurable disparate impact in the knowledge and abilities of minority students, which is the real heart of the problem. Shooting the messenger whose tests reveal this impact is, well, just that, shooting the messenger, is it not?

While best practice does not determine access to highly competitive education solely on the basis of one test, it has been pointed out that the NYC school system is a special case, with numerous other competitive schools filled by different methods, including methods favored by testing opponents.

Commenters on her blog often tease out the nuances of stories– which ones are outrageous, who really is blameworthy (often not the person one might guess from the headline), and which cases have reasonable explanations.

First, she tends toward the hysterical, presenting each example of what she perceives as wrong in a breathless fashion, without any attempt at nuance or balance. Some examples were quite trivial, yet her sky was constantly falling, the end of the world for parents and children alike. While some examples were indicative of the trend toward over-control and over-regulation, they were not, standing alone, irrational or outrageous. She would establish far greater credibility if she occasionally distinguished the serious from the less than serious.

Second, she embraces uncritically every one-sided story she hears. As a criminal defense lawyer, it’s commonplace for clients, at first, to tell the story of how they’re as innocent as driven snow and how horrible the police behaved. In time, as facts become known, it turns out that neither is nearly as true as the defendant said. We expect this, and never blindly accept our client’s story as true.

Lenore, in contrast, relates every story that supports her position as gospel, ignoring the smell. Granted, the stories she relates are rarely tested, and so facile rationalizations become the truth upon which her she promotes her philosophy.

Sadly, the thrust of her views have great merit, but her presentations often do not. In this video, she appears credible, if a bit crazed. She would do better to be a bit less crazed and a little more critical and nuanced. She makes an important point. She just doesn’t make it nearly as effectively as she could.