Civil Liberties               The National Newsletter of the ACLU
#380, Spring 1994             (c) 1994 American Civil Liberties Union

The FairTest Case:  Nothing Special, Just Equality

by Marcia Thurmond

     On February 15, the ACLU Women's Rights Project filed an
administrative complaint against the Educational Testing Service
(ETS) and the College Entrance Examination Board, challenging the
use of a gender-biased test as the sole instrument for
determining semifinalist status in the National Merit Scholarship
competition.  The test is the Preliminary Scholastic Assessment
Test (PSAT)/ National Merit Scholarship Qualifying Test (NMSQT).

     The ACLU, representing FairTest (the National Center For
Fair and Open Testing) filed its complaint in New York City with
the U. S. Department of Education's Office for Civil Rights,
Region Two.  It contends that by choosing 15,000 semifinalists a
year based on their test scores alone, ETS and the College Board
"significantly assist" the test's discrimination against females
in violation of Title IX of the Education Amendments of 1972.

     The ACLU action builds on a Women's Rights Project lawsuit,
Sharif v. New York State Education Department, that successfully
challenged the manner in which New York State Regents
Scholarships and Empire State Scholarships were awarded.  In
Sharif, a federal district court judge ruled that basing the
Regents and Empire awards on SAT (Scholastic Assessment Test)
scores alone was a discriminatory practice.  Following the
court's issuance of a preliminary injunction, the case was
settled when the defendants agreed to use a combination of grades
and SAT scores for determining scholarship recipients. 

     One purpose of the National Merit Scholarships is to reward
those students deemed to have the greatest potential for success
in rigorous college study, and each year, more than one million
high school students enter the competition by taking the
PSAT/NMSQT -- a test that consists primarily of former SAT
questions.  ETS has acknowledged that the SAT overpredicts the
college performance of males, while underpredicting that of
females, and that high school grades are a more accurate
predictor of college performance.  Despite that knowledge, ETS
and the College Board continue to cosponsor the use of the
PSAT/NMSQT as the sole mechanism for determining semifinalist
status.  

     Females on average receive better grades in both high school
and college than males, yet they receive lower PSAT/NMSQT scores. 
Thus, although 55 percent of those competing for National Merit
Scholarships are female, females make up only about 40 percent of
the semifinalists and, ultimately, of the award recipients.

     In choosing finalists, the scholarships' sponsors do take
factors other than the test scores into consideration, such as
teacher recommendations, the number of academic courses studied,
grades and community service activities.  But this happens only
after the semifinals, at which point 60 percent of those eligible
for the finals are male.  Of the scholarship recipients, 60
percent are male. 

     The ACLU's suit has been criticized as seeking some type of
special treatment for females, the critics presumably regarding
the administered test as an objective measure of intelligence; if
females perform less well than males, they simply are not as
intelligent as males.  The fact is that no credible evidence
exists to indicate that females are less intelligent than males. 
Credible evidence is available, however, to suggest that
cognitive differences between females and males, if any, are
slight, with females having a slight advantage in verbal skills,
and males having a slight advantage in math skills.  Were the
PSAT/NMSQT truly objective, those slight advantages would cancel
each other out -- which does not happen.  

     The ACLU is seeking, not special treatment for females, but
equal opportunity for females to compete for the valuable and
prestigious National Merit Scholarships.

--------------------
Marcia Thurmond is a staff attorney with the Women's Rights
Project of the ACLU.

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