Diana v. State Board of Education, 1973

Diana v. State Board of
Steven Malm
Diana v. State Board of Education
California, 1970
 Class action law suit filed on behalf of 9
Mexican American students
◦ Classified as EMR
◦ Placed in special education on the basis of
Stanford-Binet and WISC scores (Jacob, Decker,
Hartshorne, 2011)
◦ The children were bilingual (Spanish/English)
and it was claimed that the language barrier of
the tests made the scores invalid (Klein, 1978)
Diana (cont.)
Original test scores ranged 30-72
◦ Cutoff for EMR in 1970 = 85 (MacMillan et al., 1988)
After bilingual retesting
◦ Average gain of 15 IQ points
◦ 7 of 9 no longer classified as EMR (Olmedo, 1981)
Diana (cont.)
Settled out of court. Consent decree had
several effects on assessment(Ramage, 1981)
◦ If a child’s primary language is not English,
he/she must be tested in both their primary
language and English
◦ These children should only be tested with
measures that do not depend on unfair verbal
items or knowledge of English
◦ All bilingual children in EMR classes were to
be re-evaluated (Ramage, 1981; Klein, 1978)
Specific Stipulations in Diana (Diana v.
State Board of Education, 1973)
Districts with significant variance between
the percentage of Chicano students in EMR
vs. general school population must submit a
plan to eliminate the variance
“The percentage of Chicanos placed each
year will not exceed the percentage of
Chicanos in the general district population”
If variance continues after a 3-year period,
the State Department must audit the
district’s program
◦ Re-evaluation of pupils done as necessary
Overrepresentation since the case
“Overrepresentation of
Hispanic students in
classes for the mentally
retarded no longer exists
on a state level in
California” (Brosnan, 1983)
 However, re-evaluated
students who were
subsequently placed in
general education achieved
significantly lower than a
sample of low-achieving
general education students
(MacMillan et al., 1988)
A study by Hosp and
Reschly (2003) found
◦ More African American
students and a similar
number of Hispanic students
are referred for special
◦ More African American but
fewer Hispanic students than
Caucasian students are
found eligible for special
Issue: Have the effects of
Diana actually limited the
educational opportunities
for Mexican American
students who may qualify?
Related Cases
Larry P. v Riles (1972)
Guadalupe v.Tempe Elementary School (1972)
◦ IQ tests should be administered in child’s
◦ Other assessments should be used in addition to
IQ tests for placement
PASE (Parents in Action on Special Education) v.
Joseph P. Hannon (1980)
◦ IQ tests found to be nondiscriminatory
◦ Use of IQ tests is acceptable as long as it follows
procedures outlined by federal law
Diana’s Effect on Federal Law
“Many of the points…were ultimately
incorporated into Public Law (P.L.) 94-142
(1975)” (MacMillan et al., 1988)
◦ Education for All Handicapped Children Act
◦ Now known as the Individuals with
Disabilities Education Act (IDEA)
◦ IDEA requires all assessments to be
 Testing should be done in the child’s native language
or using tests that do not require knowledge of
English (Jacob, Decker, & Hartshorne, 2011)
Testing Linguistic Minorities
Linguistic minority groups are rapidly
growing in the American population
◦ 40% of California’s students speak a language
other than English, 25% are identified as ELL
(Rumberger and Gandara, 2004).
Linguistic factors strongly determine
performance on many standardized tests
(Olmedo, 1981)
Testing Linguistic Minorities
Bilinguals differ in their receptive and
expressive language dominance.
 Just because a child can speak a second
language, it does not mean they are
proficient enough to be tested in that
 Bilingual students should be tested in
both their native language and English.
(Olmedo, 1981)
Testing Linguistic Minorities
The student’s level of acculturation needs
to be taken into account
◦ The degree to which the individual’s cultural
values, customs, and cognitive styles match the
majority culture
Verbal items on several standardized tests
may be culturally-bound (content bias)
◦ “The famous “fight” item on the Wechsler
Comprehension Subtest is perhaps the most
frequently cited example of content or item
bias” (Reschly, 1981)
Trying to Achieve Fairness in Testing
Nonverbal Assessment
◦ Assessments should be done in the child’s native
language or using items that do not require
knowledge of English.
◦ Due to the relatively unsuccessful attempts to
use language-reduced tests, many psychologists
have taken to using nonverbal tests for students
with limited English proficiency
◦ “Nonverbal tests of intelligence have been
available for decades, but the 1990s have marked
a resurgence in the development and improved
quality of these instruments” (McCallum, Bracken,
& Wasserman, 2001)
Nonverbal Assessment (cont.)
The Universal Nonverbal Intelligence Test
◦ 6 subtests with instructions given in
◦ “By requiring no spoken or written language
by the examiner or the examinee, the UNIT is
appropriate for examinees who have limited
English proficiency, examinees for whom
English is a second language, and examinees
who are eligible for bilingual education”
(Bracken & Mccallum, 1998)
Contains a nonverbal scale
◦ Composed of subtests that can be administered in
◦ Provides a well-normed, reliable, and valid measure of
cognitive abilities for children who are not fluent in
KABC-II includes Spanish translations for teaching
texts/scoring keys for verbal subtests to assist in
assessing bilingual (Spanish/English) students.
 Overall, KABC-II scores are found to be only
modestly effected by children’s ethnic
backgrounds (Kaufman & Kaufman, 2004)
Choosing a Test
The psychologist should conduct an
assessment of the child’s language
proficiency to determine what type of
test is most appropriate.
◦ (Nonverbal tests are not always the most
appropriate option)
It’s easy to assume that IQ tests operate the
same way for everyone.
◦ It’s clearly not the case, especially for linguistic
◦ Also, simply translating the test doesn’t work
It is important to look more critically at
standardization samples of current tests
◦ Will this test fairly test a given child?
◦ Determine which are best to use when working
with linguistic minorities.
Challenged assumptions about bilingual
It’s Academic Tutoring.com (2011). Landmark cases in special education. It’s Academic Tutoring.com.
http://itsacademictutoring.com/content/index.php?option=com_content&task=view&id=58&Itemid=28. Accessed
November 10, 2011.
Brosnan, F.L. (1983). Overrepresentation of low-socioeconomic minority students in special education programs
in California. Learning Disability Quarterly 6(4), 517-525.
Bracken, B.A. & McCallum, R.S. (1998). Universal Nonverbal Intelligence Test. Riverside Publishing: Itasca, IL.
Diana v. State Board of Education, Civ. Act. No. C-70-37 (N.D. Cal., 1970, further order, 1973).
Hosp, J.L. & Reschly, D.J. (2003). Referral rates for intervention or assessment: A meta-analysis of racial
differences. The Journal of Special Education 37(2), 67-80.
Jacob, S., Decker, D.M., & Hartshorne (2011). Ethics and Law for School Psychologists, Sixth Edition. John Wiley &
Sons, Inc: Hoboken, NJ.
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Klein, N.K. (1978). Special education: Implementation of new rules. Theory into Practice 17(4), 348-360.
MacMillan, D.L., Hendrick, I.G., & Watkins, A.V. (1988) Impact of Diana, Larry P., and P.L. 94-142 on minority
students. Exceptional Children 54(5), 426-432.
McCallum, S., Bracken, B., & Wasserman, J. (2001). Essentials of Nonverbal Assessment. John Wiley & Sons: New York,
Olmedo, E.L. (1981). Testing linguistic minorities. American Psychologist 36(10), 1078-1085. DOI: 0003066x/81/3610-1078$00.75
Ramage, J.C. (1981). Litigation and legislation effects on school psychologists’ role. Journal of Learning Disabilities
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Rumberger, R.W. & Gandara, P. (2004). Seeking equity in the education of California’s English Learners. Teachers
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