Take on the role of a psychologist assigned a case in which the client has a legal concern. Forensic Scenario, Mr. M (Not Guilty Plea): Your client, Mr. M., was referred by the court for an evaluation of his mental condition after his attorney entered a plea of not guilty on his behalf. Review the Case Description: Mr. M—Forensic, Pre-trial Criminal Score Report, and begin with a one-paragraph summary of the test data you deem most significant. Based on the information provided, determine if retesting with the MMPI-3 is recommended at this time and explain your rationale?. Utilize attach readings and any additional scholarly and/or peer-reviewed sources needed to develop a list of assessment instruments and evaluation procedures in addition to the MMPI-2-RF and/or the MMPI-3 to administer to the client?Justify your assessment choices by providing an evaluation of the ethical and professional practice standards and an analysis of the reliability and validity of the instruments?
American Psychological Association. (2010). Ethical principles of psychologists and code of conduct: Standard 9: Assessment.Retrieved from http://www.apa.org/ethics/ code/index.aspx?item=12
American Psychological Association. (2013). Specialty guidelines for forensic psychology [PDF]. American Psychologist, 68(1), 7-19. doi:10.1037/a0029889
Ben-Porath, Y. S., & Tellegen, A. (2014a). Case description: Mr. M—Forensic, pre-trial criminal score report [PDF]. Retrieved from http://images.pearsonclinical.com/images/ Assets/MMPI-2-RF/MMPI-2-RF_Score_ForensicPretrial.pdf
Gregory, R. J. (2014). Psychological testing: History, principles, and applications (7th ed.). Boston, MA: Pearson. • Chapter 12: Legal Issues and the Future of Testing
CHAPTER 12 Legal Issues and the
Future of Testing TOPIC 12A Psychological Testing and the Law 12.1 The Sources and Nature of Law 12.2 Testing in School Systems and the Law 12.3 Disability Assessment and the Law 12.14 Legal Issues in Employment Testing Case Exhibit 12.1 Unwise Testing Practices in Employee Screening 12.5 Forensic Applications of Assessment
In the previous chapters we have outlined the myriad of ways in which tests are used in decision making. Furthermore, we have established that psychological testing is not only pervasive, but it is also consequential. Test results matter. Test findings may warrant a passage to privilege. Conversely, test findings
may sanction the denial of opportunity. For many reasons, then, it is appropriate to close the book with two special topics that bear upon the potential repercussions of psychological testing. In Topic 12A, Psychological Testing and the Law, we review critical legal issues pertaining to the use of psychological tests. In this topic, we survey the essential laws that regulate the use of tests in a variety of settings—schools, employment situations, medical settings, to name just a few arenas in which the law constrains psychological testing. We also examine several ways that psychologists interface with the legal system in the field of forensic assessment. In Topic 12B, Computerized Assessment and the Future of Testing, contemporary applications of the computer in psychological assessment are surveyed, and then the professional and social issues raised by this practice are discussed. The book closes with thoughts on the future of testing—which will be forged in large measure by increasingly sophisticated applications of
computer technology but also greatly affected by legal standards. 12.1 THE SOURCES AND NATURE OF LAW The law establishes a number of guidelines that define the permissible scope and applications of psychological testing. However, before investigating the key legal guidelines that impact testing, it will be helpful to understand the sources and nature of law. Broadly speaking, there are three sources of law: constitutional provisions, legislative edicts, and judicial opinions. We examine each briefly. Constitutional Sources of Law The United States has a constitutional form of government, meaning that the U.S. Constitution is the final authority for all legal matters in the country. All other forms of law must be consistent with this seminal document. Thus, the Constitution places limits on legislative actions and judicial activity. The United States is also a federation of states, which means that each state retains its own government and system of laws,
while ceding some powers to the central government. For example, the power to regulate interstate commerce and the responsibility to provide for the national defense both reside with the federal government. Each state has its own constitution as well, which is another source of laws that affects citizens living in a state. Of course, state constitutions cannot contradict the U.S. Constitution and, in most cases, they are highly similar to the federal document. Three provisions of the U.S. Constitution potentially bear upon the practice of psychological testing: the Fifth, Sixth, and Fourteenth Amendments to the Constitution (Melton et al., 1998). The Fifth Amendment provides a privilege against self-incrimination, which impacts the nature of psychological assessment in forensic evaluations. For example, as discussed previously, a forensic practitioner might be asked by the court to evaluate an alleged offender for competency to stand trial. In many states, self-incriminating disclosures made during an evaluation of competency to stand trial cannot be used to
determine guilt (i.e., they are inadmissible as evidence during trial). The Sixth Amendment states that every person accused of a crime has the right to counsel (i.e., the right to a lawyer). This is understood to mean both the presence of counsel during legal proceedings and also the right to effective assistance from counsel. Does this mean that counsel must be present during a pretrial assessment, such as a court-ordered evaluation for competency to stand trial? This will depend upon the state and jurisdiction in which the proceedings occur. Although most courts have held that the defendant does not have a right to the presence of counsel during pretrial psychological evaluations, a minority of courts have held that the Sixth Amendment guarantee does apply to such pretrial assessments (Melton et al., 1998). In these jurisdictions, the defendant’s lawyer can be present during any psychological testing or evaluation. This raises difficult questions as to the validity of assessments undertaken in the presence of a third party. For example, what if the client asks
his or her lawyer for advice on how to answer certain questions? Surely, this is not standard protocol in psychological assessment and might drastically affect the validity of the results. Fortunately, most courts favor alternative methods for protecting the rights of defendants during pretrial evaluations, such as tape- recording the session, having a defense psychologist observe the evaluation, or providing for an independent evaluation. The Fourteenth Amendment provides that no state shall deprive any U.S. citizen of life, liberty, or property without “due process of law.” The amendment also specifies “equal protection of the laws.” The relevant section reads: No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
It is mainly the “due process” feature of this amendment that has impacted psychological practice. This influence is limited largely to forensic practitioners who deal with competency to stand trial, civil and criminal commitment, or the right to refuse treatment. For example, psychologists who are involved in the civil commitment of an individual who needs treatment typically must show—as a direct consequence of the due process clause of the Fourteenth Amendment—that several stringent criteria are fulfilled: • The individual must be reliably diagnosed as
suffering from severe mental illness; • In the absence of treatment, the prognosis
for the individual is major distress; • The individual is incompetent; that is, the
illness substantially impairs the person’s ability to understand or communicate about the possibility of treatment;
• Treatment is available; • The risk–benefit ratio of treatment is such
that a reasonable person would consent to it. (Melton et al., 1998, p. 310)
Whether these conditions are met would be determined at a commitment hearing during which the individual would have full procedural rights such as the presence of counsel. The psychologist’s role would be to offer professional opinions on these guidelines. Of course, the validity of psychological assessment is relevant to these criteria in several ways, including the following: understanding the reliability of psychiatric diagnosis (see Topic 9B, Behavioral and Observational Assessment), choosing appropriate tests for competency (see the topic below, Forensic Applications of Assessment), and comprehending risk–benefit analysis (see Topic 4A, Basic Concepts of Validity). Legislative Sources of Law In addition to constitutional sources, laws also emanate from the actions of state and federal legislative bodies. These laws are called statutes and are codified by subject areas into codes. For example, the laws passed by Congress at the federal level are codified into 50 topics
identified as Title 1 through Title 50 with each area devoted to a specific theme. Three examples include Title 18, Crimes and Criminal Procedure; Title 20, Education; and Title 29, Labor. Each titled area is further subdivided. For example, Title 20, Education, is gargantuan. It consists of 77 chapters, a few of them hundreds of pages in length. This includes Chapter 70, Strengthening and Improvement of Elementary and Secondary Schools, in which literally hundreds of specific statutes passed over the last few decades have been collated and cross- referenced. For example, one federal statute mandates that school systems must show adequate yearly progress in order to be eligible for further federal funding. The law further stipulates that “adequate yearly progress” shall be defined by the State in a manner that • (i) applies the same high standards of
academic achievement to all public elementary school and secondary school students in the State;
• (ii) is statistically valid and reliable;
• (iii) results in continuous and substantial academic improvement for all students;
• (iv) measures the progress of public elementary schools, secondary schools and local educational agencies and the State based primarily on the academic assessments described in paragraph (3);
• (v) includes separate measurable annual objectives for continuous and substantial improvement for each of the following: • (I) The achievement of all public
elementary school and secondary school students.
• (II) The achievement of • (aa) economically disadvantaged
students; • (bb) students from major racial and
ethnic groups; • (cc) students with disabilities; and • (dd) students with limited English
proficiency; except that disaggregation of data under sub-
clause (II) shall not be required in a case in
which the number of students in a category is insufficient to yield statistically reliable information or the results would reveal personally identifiable information about an individual student. (U.S. Code, Title 20, Chapter 70, http://uscode.house.gov)
As can be seen, legal codes are written with such specificity that their intention cannot easily be overlooked or bypassed. The preceding sample is just one small snippet of law—barely discernible in a vast ocean of literally hundreds of pages of edicts that impact educational practices. But it is clear that these legislative rulings influence psychological testing. For example, in the preceding excerpt, an inescapable inference is that school systems must use standardized educational achievement tests with established reliability and validity—or else they risk losing federal funds. Legislatures cannot possibly oversee the implementation of all the statutes they enact. Consequently, it is increasingly common for these bodies to delegate rule-making authority to agencies within the executive branch of
government. For example, the U.S. Congress has passed several laws designed to prohibit discrimination in employment. But the enforcement of these laws is left to the Equal Employment Opportunity Commission (EEOC). The following federal laws bear, at least in part, on job discrimination: • Civil Rights Act of 1964, which prohibits
employment discrimination based on race, color, religion, gender, or national origin
• Equal Pay Act of 1963, which protects women (and men) who perform equal work in the same organization from gender-based wage discrimination
• Age Discrimination in Employment Act of 1967, which protects individuals who are 40 years of age or older
• Americans with Disabilities Act of 1990, which prohibits employment discrimination against qualified individuals with disabilities in both government and the private sector
• Rehabilitation Act of 1973, which prohibits discrimination against qualified individuals
with disabilities who work in the federal government
• Civil Rights Act of 1991, which authorizes monetary damages in cases of intentional employment discrimination
The EEOC is the federal agency in charge of the administrative and judicial enforcement of the civil rights laws listed earlier. We discuss this important regulatory body in further detail later. Judicial Sources of Law Another source of law is the judiciary, specifically, the federal courts and the United States Supreme Court. Indirectly, these bodies make law in several ways. First, they have the authority to review all federal legislative edicts to determine their constitutionality and interpretation. In addition, they can appraise the constitutional validity of any state law, whether constitutional, statutory, or regulatory in origin. In doing so, they have the opportunity to sharpen the focus of laws promulgated by these other sources. For example, in ruling on the constitutionality of state civil commitment laws,
federal courts not only have found them unconstitutional, but they have also used this opportunity to publish permissible criteria and procedures for commitment (as discussed previously in relation to the Fourteenth Amendment). The courts also hear lawsuits filed on behalf of individuals or groups. In these cases, court rulings can establish new law. Finally, the courts can make law when the original sources such as constitutional laws or legislative statutes are silent on an important issue: In performing their interpretive function, courts
will first look at the plain words of any relevant constitutional provision, statute, or regulation and then review the legislative history of a given law, including statements made by the law’s sponsors or during committee or public hearing sessions. But if neither of these sources is helpful, or if no relevant law exists, the courts themselves must devise principles to govern the case before them. The principles articulated by courts when they
create law are collectively known as common law, or judge-made law. (Melton et al., 1998, p. 29)
Typically, common law is conservative, based to the extent possible on the precedent of past cases, rather than created at the whim of the judiciary. In sum, there are several sources of law: state and federal constitutions, legislative statutes, regulations enacted by agencies such as the EEOC, and judicial interpretations from federal courts and the Supreme Court. These are the primary sources of law that might intersect with the practice of psychological testing. Other sources of law include presidential executive orders and international law, which we do not discuss here because they rarely impact psychological practice. Now that the reader has an understanding of how, why, and where laws originate, we turn to a review of particular laws that impact the practice of psychological assessment. We partition the discussion into three topics: legal influences on psychological testing in school
systems, disability assessment and the law, and legal issues in employment testing. The division is somewhat artificial; for example, the assessment of learning disability—greatly impacted by law—involves both the practice of testing in school systems and the assessment of disability.
12.2 TESTING IN SCHOOL SYSTEMS AND THE LAW
The law has impacted school-based testing in two broad ways: (1) Federal legislation has mandated specific practices in the assessment of students, especially those with disabilities; and (2) lawsuits have shaped and reshaped particular testing practices in school systems over the last 60 years. We will discuss legislative influences in the next section on disability assessment and the law. Our goal here is to provide an overview of influential lawsuits that have molded testing practices in the schools. In the main, these lawsuits have assailed the use of tests, especially in special education placement and as a requirement for high school graduation.
Attacks on cognitive testing in school systems have been with us for a long time. Beginning in the 1960s, these attacks took a new form: lawsuits filed by minority plaintiffs seeking to curtail or ban the use of school-based cognitive tests, especially intelligence tests. In this section we will review the major court cases, summarized in Table 12.1. Later, we will discuss the implications of court decisions for the contemporary use of cognitive tests in schools. Many of the legal assaults on testing have arisen from the controversial practice of using cognitive test results for purposes of assigning low-functioning students to “vocational” school tracks or to special classes for educable mentally retarded (EMR) persons. Invariably, minority children are assigned to these special tracks and classes in surprising disproportion to their representation in the school population. For example, a typical finding is that minority children are two to three times more likely to be classified as EMR than white children (Agbenyega & Jiggetts, 1999). In a school
system comprised of 25 percent minority students, this could translate to EMR classes with about 50 percent minority student representation. Therein lies the crux of the legal grievance, for special education classes are equated by many with inferior education. Written two decades ago, these observations still hold true: TABLE 12.1 Major Legal Landmarks in School-Based Cognitive Testing
1967 Hobson v. Hansen Court ruled against the use of group ability tests to “track” students on the grounds that such tests discriminated against 1970 Diana v. State Board Court ruled against traditional testing procedures for educable mentally retarded (EMR) placement of Mexican American children; State Board of Education enacted 1979 Debra P. v. Turlington Court did not rule against the use of a minimum competency test as a condition for high school graduation—a test with excessive failure rate for African American
If special education actually worked, which it does not, and minority children assigned to EMR classes in the primary grades eventually reached the same level of reading and math achievements as children in regular classrooms, I doubt whether the plaintiffs in these cases would have
1979 Larry P. v. Riles Court ruled that standardized IQ tests are culturally biased against African American children for EMR evaluation and stipulated that the proportion of African 1980 PASE v. Hannon In complete contradiction to the Larry P. v. Riles decision, the court ruled that standardized IQ tests are not racially or 1984 Georgia NAACP v. Georgia Court ruled that traditional procedures of evaluation do not discriminate against African American children; court also rejected the view that disproportionate 1994 Crawford v. Honig The judge in the Larry P. v. Riles case overruled his earlier ruling so as to allow the use of a standardized IQ test for the 2000 GI Forum v. Texas Education Agency Court ruled that the use of the Texas Assessment of Academic Skills as part of a high school graduation requirement was
brought suit. A major problem in the educational system is that special education, even with smaller classes and better trained teachers, still does not work to bring such children up to par. Rather, special education classes perpetuate educational disadvantage. (Scarr, 1987)
Something is amiss in education when well- intentioned placement policies inadvertently perpetuate a legacy of mistreatment of minorities. The legal challenges to school-based testing are certainly understandable, even though sometimes misplaced. After all, the problem is not so much with the tests—which assess academically relevant skills with reasonable validity—but with educational policies that isolate low-functioning students to inefficient placements. Even experts sympathetic to the lawsuits acknowledge that tests often are quite useful, so it is worth examining why killing the messenger has been a popular response to concerns about discriminatory placements.
Hobson v. Hansen (1967) The first major court case to challenge the validity of ability tests was Hobson v. Hansen (1967). In that landmark case, plaintiffs argued that the allocation of financial and educational resources in the Washington, DC, public school system favored white children and, therefore, discriminated against minority children. Among the issues addressed in the trial was the use of standardized group ability tests such as the Metropolitan Readiness and Achievement Test and the Otis Quick-Scoring Mental Ability Test to “track” students according to ability. Children were placed in honors, regular, or basic tracks according to ability level on the tests. One consequence of this tracking method was that minority children were disproportionately represented in the lowest track, which focused on skills and preparation for blue-collar jobs. Placement in this track virtually ruled out entrance to college and entry to a well-paying profession.
Judge Skelly Wright decided the Hobson case in 1967, ruling against the use of a tracking system based on group ability tests. Most commentators view his banishment of ability testing for tracking purposes as justified. However, there is good reason to worry about the further implications of Judge Wright’s decision, which implied that acceptable tests must measure children’s innate capacity to learn. Bersoff (1984) commented on the Hobson decision as follows: Hobson, when read in its entirety, represents the justified condemnation of rigid, poorly conceived classification practices that negatively affected the educational opportunities of minority children and led to permanent stigmatization of blacks as unteachable. But swept within Hobson’s condemnation of harmful classification practices were ability tests used as the sole or primary decision- making devices to justify placement. Not only was ability grouping as then practiced in the District of Columbia abolished, but tests were
banned unless they could be shown to measure children’s innate capacity to learn. Not even ardent hereditarians believe that tests solely measure innate ability. No test could ever pass the criterion mandated by this case. The Hobson case concerned group ability tests and had no direct bearing on the use of individual intelligence tests in school systems. However, it did portend an increasing skepticism about the use of any test—whether group or individual—for purposes of educational placement. Diana v. State Board of Education (1970) In Diana v. State Board of Education (1970), plaintiffs questioned the use of individual intelligence tests (the WISC and Stanford-Binet) for purposes of placing Mexican American schoolchildren in classes for educable mentally retarded (EMR) persons. Diana was a class action suit filed on behalf of nine Mexican American elementary school children who had been placed in EMR classes. The placements were based on individual IQ tests administered
by a non-Spanish-speaking psychometrist. When retested in English and Spanish, eight of these nine children showed substantial— sometimes huge—increases in IQ and were, therefore, removed from EMR classes. Faced with this evidence, the California State Board of Education decided to enact a series of special provisions for the testing of Mexican American and Chinese American children. These provisions included the testing of minority children in their primary language, elimination of certain vocabulary and information items that minority children could not be expected to know, retesting of minority children previously placed in EMR classes, and development of new tests normed on Mexican American children. These provisions answered the concerns of plaintiffs, eliminating the need for further court action. Debra P. v. Turlington (1979) This was a class action lawsuit filed on behalf of all African American students in Florida against Ralph Turlington, the state Commissioner of
Education. At issue was the use of the State Student Assessment Test-Part 2 (SSAT-II), a functional literacy test, as one requirement for awarding a high school diploma. In the 1970s, Florida was one of the states at the forefront of the functional literacy movement. Functional literacy has to do with practical knowledge and skills used in everyday life. A test of functional literacy might require students to: • Calculate the balance of a personal checking
account when given the starting balance, deposits, withdrawals, and service charges
• Follow simple written directions and instructions in printed materials
• Complete an application form for employment, driver’s license, or training program
• Spell basic and useful words correctly (e.g., address, employer, postage, salary, vehicle)
• Comprehend essential abbreviations (e.g., apt., CPU, hwy., M.D., Mr., Rx, SSN)
• Know the meanings of vital words (e.g., antidote, bus stop, caution, exit only, one way, zip code)
• Write a paragraph that is reasonably grammatical and coherent
Currently, about 20 states use a functional literacy test of this genre as one condition of awarding the high school diploma. However, in Florida in the late 1970s, African American students failed the functional literacy test at a substantially higher rate than white students. Plaintiffs argued the SSAT-II was unfair because African American students received inferior education in substantially segregated schools. The purpose of the lawsuit was to void the use of the test as a requirement for graduation. The information in the following discussion was retrieved from the appeals court decision (Debra P. v. Turlington, U.S. Court of Appeals for the Eleventh Circuit, April 27, 1984). With practical finesse, the court decision offered something to both sides, although state officials likely were happier with the outcome than were the plaintiffs. The nature of the ruling also revealed admirable sensitivity to issues of test validity and psychological measurement on the
part of the court. Based on the reasonable belief that a high school diploma should signify functional literacy, the state was permitted to use the test as a diploma requirement. However, the court delayed implementation of the new diploma testing program for four years. This delay served two purposes. First, it provided due process to current students (and their parents), alerting them that a new requirement was being set in place. Second, it gave the state time to prove that the SSAT-II was a fair test of that which is taught in Florida’s classrooms. The court wanted proof of what it called “instructional validity.” Put simply, the court wanted assurance that the state was teaching what it was testing. The state undertook a massive evaluation project to prove instructional validity. The Florida Department of Education hired a consulting firm to conduct a four-part study that included (1) teacher surveys asking expressly if the skills tested by the SSAT-II were taught; (2) administrator surveys to demonstrate that school districts utilized remedial programs when
appropriate; (3) site visits to verify all aspects of the study; and (4) student surveys to discern if students perceived they were being taught the skills required on the functional literacy test. Weighing all the evidence carefully over a period of several years, the court ruled that the State of Florida could deny diplomas to students who had not yet passed the SSAT-II, beginning with the class of 1983. Furthermore, the court concluded that the use of the SSAT-II actually helped to mitigate the impact of vestiges of school segregation by motivating students, teachers, and administrators toward a common goal: The remarkable improvement in the SSAT-II
pass rate among black students over the last six years demonstrates that use of the SSAT-II as a diploma sanction will be effective in overcoming the effects of past segregation. Appellants argue that the improvement has nothing to do with diploma sanctions because the test has not yet been used to deny diplomas. However, we think it likely that the threat of diploma
sanction that existed throughout the course of this litigation contributed to the improved pass rate, and that actual use of the test as a diploma sanction will be equally, if not more, effective helping black students overcome discriminatory vestiges and pass the SSAT-II. Thus, we affirm the finding that use of the SSAT-II as a diploma sanction will help remedy vestiges of past discrimination. (U.S. Court of Appeals for the Eleventh Circuit, Ap
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