Language Testing in the Dock

Language testing becomes embroiled in litigation whenever an individual from an identifiable subgroup of the test-taking population feels that they have been unfairly treated (Childs, 1990; Fulcher & Bamford, 1996). This normally means they believe that their score does not reflect their true ability. This state of affairs arises when a decision taken on the basis of a test score (and associated documentation) may deny them access to education, employment, or some other economically desirable opportunity. In technical terms, they believe they are a false negative: Their observed score was below the pass mark or cut score for an intended decision-making purpose, but their true score is higher. This chapter investigates the relationship between language testing and the law. This begins with a consideration of the role of high stakes testing as a social tool designed for allocating resources, and the values underlying current practices. When decisions are made about the future of individuals using tests, the question asked is whether these are “fair” or “just.” Test takers may question the outcome of the test and litigation may follow. A range of situations are considered in which fairness or justice may be questioned and litigation has occurred, or is likely to take place. Illustrative cases are discussed in order to explore emerging themes. These cases are drawn almost exclusively from the USA, with a smaller number from Europe, because these are the regions in which testing and assessment have been explicitly related to issues of discrimination, either in primary legislation or through precedent. Searches in legal databases such as Westlaw and Lexis Library reveal very little legal activity around testing and assessment in other countries, with the single exception of the prosecution for fraud of test takers or officials in cases of cheating. The research reported in this chapter and the synthesis of key legal issues as they relate to testing and assessment are a key resource for institutions and individuals involved in assessment development, test use and administration, and score reporting.