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PARENTS IN ACTION ON SPECIAL ED.

July 7, 1980

PARENTS IN ACTION ON SPECIAL EDUCATION (PASE), AN INCORPORATED ASSOCIATION; LUE B.B., ON HER OWN BEHALF AND AS NEXT FRIEND OF BARBARA B.; AND ONOLLIE J., ON HER OWN BEHALF AND AS NEXT FRIEND OF ANGELA J., ON BEHALF OF THEMSELVES AND ALL OTHER PERSONS SIMILARLY SITUATED, PLAINTIFFS,
v.
JOSEPH P. HANNON, INDIVIDUALLY, AND IN HIS CAPACITY AS GENERAL SUPERINTENDENT OF SCHOOLS IN CHICAGO; ELBERTA PRUITT, INDIVIDUALLY AND IN HER CAPACITY AS DIRECTOR OF SPECIAL EDUCATION FOR THE CHICAGO BOARD OF EDUCATION; LOUISE G. DAUGHERTY, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS DIRECTOR OF PUPIL PERSONNEL SERVICES FOR THE CHICAGO BOARD OF EDUCATION; WILLIAM CANNING, INDIVIDUALLY AND IN HIS CAPACITY AS DIRECTOR OF THE BUREAU OF CHILD STUDY FOR THE CHICAGO BOARD OF EDUCATION; THE CHICAGO BOARD OF EDUCATION, A BODY CORPORATE AND POLITIC; JOHN D. CAREY, DR. EDGAR G. EPPS, DR. BERNARD S. FRIEDMAN, HERBERT E. JOHNSON, HENRY W. MCGEE, MRS. LOUIS A. MALIS, THOMAS J. NAYDER, PATRICIA O'HERN, CAREY B. PRESTON, MRS. WILLIAM L. ROTHER, GERALD L. SEARBORO, CARMEN VELASQUEZ, AND MRS. LYDON WILD, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITY AS PAST OR PRESENT MEMBERS OF THE CHICAGO BOARD OF EDUCATION; JOSEPH CRONIN, INDIVIDUALLY AND IN HIS CAPACITY AS SUPERINTENDENT OF THE ILLINOIS OFFICE OF EDUCATION; THE ILLINOIS STATE BOARD OF EDUCATION, A BODY CORPORATE AND POLITIC; AND THE ILLINOIS OFFICE OF EDUCATION, THE STATE EDUCATIONAL AGENCY OF ILLINOIS, DEFENDANTS.



The opinion of the court was delivered by: Grady, District Judge.

  MEMORANDUM DECISION

This case presents the question whether standard intelligence tests administered by the Chicago Board of Education are culturally biased against black children. The action is brought on behalf of all black children who have been or will be placed in special classes for the educable mentally handicapped ("EMH") in the Chicago school system. The defendants are the Chicago Board of Education and its officers responsible for administration of the relevant programs. The named plaintiffs are two black children who were placed in EMH classes after achieving low scores on standard intelligence tests.

  The Illinois school code requires classes for the educable
mentally handicapped, who are defined as:

   . . children between the ages of 3 and 21 years
  who because of retarded intellectual development
  as determined by individual psychological
  evaluation are incapable of being educated
  profitably and efficiently through ordinary
  classroom instruction but who may be expected to
  benefit from special education facilities
  designed to make them economically useful and
  socially adjusted.

Ill.Rev.Stat. ch. 122, § 14-1.04 (1977).

There are 483,209 children enrolled in the Chicago public school system. Of those, 299,590, or 62 per cent, are black. For the 1978-79 school year, 13,225 children were enrolled in EMH classes. Of these, 10,833, or 82 per cent, were black. Of the 106,581 white children enrolled in the system, 1,404 were attending EMH classes. Three and 7/10 per cent of all black students enrolled in the system are in EMH, whereas only 1.3 per cent of the white students are in EMH.

These characteristics of the EMH program were described by plaintiffs' witness Dale Layman, a professor at the University of Illinois who specializes in training special education teachers and designing special education curricula. Dr. Layman had no argument with the EMH curriculum in Chicago, and believes it is well suited for EMH pupils. She testified that the underlying assumptions about the learning abilities of EMH students are valid, and that it is not realistic to expect a child who is genuinely retarded to be able to cope with the regular curriculum.

Dr. Layman and several other witnesses testified about the social stigma which attaches to a child who is assigned to a classroom for the retarded. While the teachers and school administrators attempt in various ways to protect the children, the evidence establishes without doubt that EMH pupils suffer from feelings of inferiority and that the label they receive in school often follows them throughout their lives.

An erroneous assessment of mental retardation, leading to an inappropriate placement of a child in an EMH class, is clearly an educational tragedy. However beneficial such classes may be for those who truly need them, they are likely to be almost totally harmful to those who do not. The two named plaintiffs in this case are examples of what can happen. Each of these children had learning disabilities but was erroneously diagnosed as being mentally retarded. Each of them scored low on a standard intelligence test administered as part of the assessment process. The two plaintiffs were assigned to EMH classes, where they spent several years. As a result of a belated re-evaluation, it was determined that these two children were not mentally retarded but rather were children in the normal range of intelligence whose learning was hampered by disabilities which are remediable.

The two named plaintiffs claim that their misassessment as retarded children was caused by racial bias in the standard intelligence tests they took, causing them to achieve low scores. It is claimed on behalf of the two named plaintiffs and the class they represent, consisting of all black children in the Chicago school system who are or might be assigned to EMH classes, that the use of racially biased intelligence tests in EMH placement violates the Equal Protection Clause of the Fourteenth Amendment as well as various federal statutes.*fn1 Plaintiffs seek declaratory and injunctive relief. The principal relief sought is a permanent injunction against the use of standard IQ tests in the evaluation of black children for EMH placement.

It will be helpful at this point to indicate the organization of this opinion. The early sections will be devoted to a description of the factual contentions of the parties and an extensive description of the specific items on the three intelligence tests which are in issue. I will in some instances comment upon the merits of the parties' respective positions during the course of these descriptions, but generally I will save the statement of my own conclusions until later, infra at p. 872 et seq.*fn2

The disagreement between the parties can be summarized briefly. It has been known since the early days of standard intelligence tests, around the time of World War I, that blacks as a group score about one standard deviation — 15 points — lower than whites. On the Stanford-Binet test, for instance, the mean white score is 100 and the mean black score is 85. While there is no disagreement as to the existence of this phenomenon, there is considerable disagreement about what causes it.

The psychologists who developed the Stanford-Binet test in this country, Terman, Yerkes and Goddard, believed that they were measuring innate mental abilities which were not subject to change. This was their concept of "intelligence." They explained the relatively poor performance of blacks, as well as that of many other groups such as recent immigrants to this country from southern and eastern Europe, on the basis of genetic inferiority.

The genetic view had wide acceptance among psychologists for a time, but it lost ground in the light of studies which showed that IQ scores were in fact not constant but were subject to change. The genetic view never did take account of the fact that many blacks scored above the white mean, but this seems to have been overlooked. However, it was more difficult to overlook the fact that northern blacks scored higher on the average than southern whites, and that blacks who moved north often experienced an increase in their IQ scores. Black infants adopted by white families tended to achieve IQ scores in later years which correlated highly with the scores of the natural children of the adoptive parents.

The current view of most psychologists is that IQ tests measure something which is changeable rather than something that is fixed for all time, something which can be increased and improved. The parties in this case agree on that much.

Dr. George Albee, a Professor of Psychology at the University of Vermont, was another witness for the plaintiffs who stated a similar view. He testified that the IQ tests measure a child's "sharing of the dominant white culture." Poor performance by a black child simply indicates his lack of exposure to white culture. It denotes nothing about the intellectual functioning of the child.

Defendants contend that the tests measure the child's current level of abilities which correlate significantly with his prospects of succeeding in school. Two school psychologists, Dr. Terrence Hines and Mr. Elmer Smith, testified for defendants that the IQ tests afford an indication of the areas of the child's mental strengths and weaknesses. According to Mr. Smith, who has a masters degree in psychology from Northwestern University and some 30 years experience as a school psychologist, the tests give an indication of the child's ability to retain factual information, to attend, to concentrate, to formulate new associative learning, and to perform simple arithmetic processes. These abilities are called for by the regular school curriculum, and accordingly the test results have some predictive value. Defendants' witnesses concede a slight amount of cultural bias in the tests but deny that this results in erroneous placements or deprives the tests of their usefulness. They point out that a diagnosis of retardation is not based solely upon an IQ score but upon a combination of relevant factors. These witnesses also emphasized that the IQ score affords a criterion that is relatively objective. They fear that, lacking the student's score on a standardized test, they would be forced to make the assessment upon a largely subjective basis.

This testimony, standing alone, does not preponderate in either direction. I have seen cases in which one set of experts is clearly more credible than the other and will, by their demeanor, appearance, credentials, and the reasonableness of their testimony, carry the day. This is not such a case. None of the witnesses in this case has so impressed me with his or her credibility or expertise that I would feel secure in basing a decision simply upon his or her opinion. In some instances, I am satisfied that the opinions expressed are more the result of doctrinaire commitment to a preconceived idea than they are the result of scientific inquiry. I need something more than the conclusions of the witnesses in order to arrive at my own conclusions.*fn3

Plaintiffs produced only one witness who made any attempt to demonstrate racial or cultural bias in specific test items. This was Dr. Robert Williams, whose testimony we will discuss in detail at a later point in this opinion. The other plaintiffs' witnesses who expressed the opinion that the tests are biased did not attempt to demonstrate or illustrate their point by any reference to specific items on any test.

It is obvious to me that I must examine the tests themselves in order to know what the witnesses are talking about. I do not see how an informed decision on the question of bias could be reached in any other way. For me to say that the tests are either biased or unbiased without analyzing the test items in detail would reveal nothing about the tests but only something about my opinion of the tests.

Plaintiffs were ambivalent in their attitude toward the need to analyze the specific test items. On the one hand, they recognized the relevance of such an inquiry by presenting Dr. Williams' testimony concerning bias in particular test items. However, he testified about only a few of them. None of the attorneys for plaintiffs nor the attorneys for the Department of Justice were prepared to discuss specific test items during the day-long oral arguments at the conclusion of the case, even though I had indicated long before the conclusion of the evidence that I felt analysis of specific test items was essential to a proper understanding and decision of the case. I am not satisfied that any of the dozen or so attorneys who participated in the trial of the case have even read the tests. In response to a direct inquiry during final argument, some of them admitted they had not and the rest said they had "at one time, but not recently." Plaintiffs' attorneys, as well as one attorney for defendants, stated that they felt it was unnecessary to look at the tests.

I have said enough to indicate my belief that an analysis of the tests is essential. I will now proceed to that task. Plaintiffs' criticism of specific test items will be discussed as we go along.

Three tests are challenged in this case. They are the three intelligence tests most often used in the assessment of mental retardation in the Chicago public school system. Most children referred for evaluation are given one or two of these tests, and the one most frequently given is the Wechsler Intelligence Scale for Children, Revised. This is known as the "WISC-R."

THE WISC-R

The test is divided into twelve sub-tests, and each sub-test consists of a series of similar items of increasing difficulty. There are suggested starting points for children of different ages, and if a child answers the initial items for his age correctly, he is given credit for all items prior to that level. If a child is unable to answer the items for his age, the examiner goes backwards in the sub-test until he finds the child's level of performance. If a child is suspected of mental retardation, the test instructions require that the examiner start with the first item in each sub-test. In some evaluations only ten of the twelve sub-tests are used, but when a child is suspected of retardation all twelve are used.

The first sub-test on the WISC-R is "Information." Items 1 through 4 are suggested for ages 6 and 7. These four questions are as follows:

  1.  (The examiner, showing the child his thumb,
      asks) "What do you call this finger?"
2.  "How many ears do you have?"
3.  "How many legs does a dog have?"
4.  "What must you do to make water boil?"

The acceptable "responses" for the first three questions are "thumb," "two," "four," and, for No. 4, "heat it . . . put it on the stove . . . put fire under it . . turn the stove on . . . cook it (or any such response indicating that the water must be heated.")

There are thirty questions on the "Information" sub-test, and the maximum number of points the child can obtain is thirty, one point for each question answered correctly. The examiner continues to ask the child questions, even beyond those designated for his age group, until the child misses five consecutive questions.

Questions 5 and 6 on the Information sub-test are the suggested starting points for 8 to 10 year olds. These questions are:

5.  How many pennies make a nickel?
6.  What do we call a baby cow?

The correct responses are "five" and "calf."

Questions 7 through 10 are suggested as the starting points for 11 to 13 year olds. They are as follows:

7.  How many days make a week?
8.  Name the month that comes next after March.
9.  From what animal do we get bacon?

10. How many things make a dozen?

The acceptable responses are "seven" (except that if the child answers "five" he is to be asked "how many counting the weekend?"); "April," "pig . . . hog . . piggy," and "twelve."

Questions 11 through 30 are for 14 to 16 year olds. They become progressively more difficult. Question 11 asks for the four seasons of the year. They can be named in any order. Question 12 asks, "Who discovered America?" Acceptable responses are "Columbus . . . Leif Erickson, Vikings (Norsemen), Amerigo Vespucci. (If a child says `Indians,' say `yes, the Indians were already there, but who sailed across the ocean and discovered America?')."

Item 12 is the first on the WISC-R to draw the fire of the plaintiffs. Their witness Williams stated that this item is "absolutely insulting" to Native American children, since it implies that the land where their forebearers resided needed to be "discovered" by someone else. Dr. Williams also criticized the question as confusing, since it is a contradiction to say that something was "discovered" when it was already occupied. Whatever the merits of these reactions may be, Dr. Williams did not explain how Item 12 discriminates against black children as opposed to white children, and we assume that he was not attempting to establish any such discrimination.

Item 13 asks, "What does the stomach do?" The acceptable responses all center on the function of the stomach in digesting or holding food. Dr. Williams testified that many black children answer, "It growls." He attributes this to the fact that many black children come from poverty level families and simply do not have enough to eat. The point seems well taken, and, if no credit would be given for such an answer, it is clear that a black child would be penalized unfairly. The WISC-R manual instructs the examiner to give the child credit for any response which is similar to or better than the acceptable responses listed. (Manual, p. 61) On the other hand, the examiner is cautioned to adhere strictly to the test procedures outlined in the manual, since "to change the conditions of administration is to change the test results to an unknown degree." (Manual, p. 53) The test is to be administered by a trained psychologist, and one would hope that the child who answers that his stomach "growls" would either be given credit for an "equal to" response or at least that the response would come up for later discussion when the child is evaluated for placement. The test kit includes a record form which the examiner is to complete as he administers each item to the child. The manual instructs the examiner to record the response in sufficient detail so that it is preserved for later discussion. (Manual p. 63)

Item 14 asks, "In what direction does the sun set?" The answer is west, and if the child points, he is asked what direction that is. Dr. Williams did not criticize this question, but it was cited by Dr. Dale Layman in the only instance where a witness other than Dr. Williams mentioned a test item during plaintiffs' case. Dr. Layman said that this item would be unfair for a child who lives in a high-rise housing project and has never been on the west side of the building to see the sun set. It was not clear to us whether Dr. Layman was basing her opinion upon actual experience with this test item or not. She did not specifically say that she has encountered any such difficulty with this question.

Questions 15 through 20 ask what month has an extra day during leap year; who invented the electric light bulb; from what country did America become independent in 1776; why oil floats on water ("because it is lighter . . . it's not as heavy . . it's less dense . . . it's not heavy enough to go to the bottom . . . it's more buoyant . . . water is heavier); name the two countries that border the United States (both must be named for credit); and how many pounds make a ton (credit is given for 2,000 or any answer from 2,200 to 2,240, since the child may be referring to a metric ton). No witness referred to any of these questions.

Question No. 21 asks, "In what continent is Chile?" Dr. Williams criticized the question by saying, "That's hardly our environment." Since the WISC-R manual defines intelligence as ". . . the overall capacity of an individual to understand and cope with the world around him," Dr. Williams says the question does not measure intelligence. Considering that this test item is the twenty-first of thirty items on the Information sub-test, it is doubtful that a school-age child suspected of retardation would even reach it. One problem we have with Dr. Williams' testimony is that he never referred to the age level for which the various items are recommended. In any event, it does not appear to us why the location of Chile would be more familiar to a white 14 year old child than to a black 14 year old child.

Question 22 asks, "What is the main material used to make glass?" The acceptable responses call for a reference to sand, silica or quartz.

Item 23 asks, "What is the capital of Greece?" Dr. Williams criticizes this question on the same basis he found fault with the question about Chile; "Athens is not a part of our environment."

Item 24 asks, "How tall is the average American man?" Any answer from 5 ft. 7 in. through 5 ft. 11 in. is acceptable. The examiner is specifically instructed not to give credit for 5 ft. 6 1/2 in. or 5 ft. 11 1/2 in. Dr. Williams criticizes this item on the basis, again, that it does not test a child's ability to cope with his environment.

Item 25 asks, "What is a barometer?" Any answer which indicates that it measures air pressure or forecasts rain or weather is acceptable.

Item 26 asks, "What causes iron to rust?" Any answer indicating oxidation is acceptable.

Item 27 asks the distance from New York to Los Angeles, and any answer from 2,500 to 3,500 miles is acceptable.

Item 28 asks, "What are hieroglyphics?" The acceptable responses are anything indicating ancient writings or symbols. Dr. Williams expresses dissatisfaction with this item, again because it is "still not a part of this culture."

Item 29 asks, "Who is Charles Darwin?" Dr. Williams testified:

  If you're going to ask kids questions about their
  environment, the better questions would be, would
  relate to folks that they're familiar with,
  people with whom they come in contact or they
  read about and who are part of their particular
  black culture.
  That would be a better estimate. For example, why
  not ask them who is Malcolm X, who was Martin
  Luther King, or who were some of these people
  that they would have had an opportunity to learn
  about, rather than Charles Darwin who was an
  Englishman.

Dr. Williams finds it ". . . interesting, again, that Darwin would be included in a question, here. As I indicated before, he wrote Origin of the Species, and that he also had a very negative theory against black people."

Finally, Item 30 on the Information sub-test is, "What does turpentine come from?" Any answer indicating a fir or evergreen tree is acceptable.

To summarize plaintiffs' specific criticism of the thirty information items, No. 13, the stomach question, is said to be biased against black children because they would be more likely than white children to think of a stomach as something that growls rather than something that digests or stores food. Item 14, the direction in which the sun sets, may also have been criticized by Dr. Layman as a question that penalizes black children who live in high-rise projects. This is not clear. These are the only two items of the thirty as to which some rationale has been suggested to explain why a black child would respond differently than a white child. Six other questions, 12, 21, 23, 24, 28 and 29, are criticized as not relevant to a child's "environment." Dr. Williams stated why certain other persons would be better known than Charles Darwin to black children, but it seems likely that there are names which would be better known to white children as well. For instance, it may be that white children would be more apt to know about Malcolm X and Martin Luther King than Charles Darwin. If not, it would still be easy to think of other names that are better known than Darwin. But the object of the test is not always to ask for information that is well known to everyone. The Darwin question is 29th in a list of 30 items arranged in order of increasing difficulty. It is a question which most children are expected to miss. It is not a realistic possibility that any child, white or black, would fall below a score of 80 on the test — the dividing line defendants use for EMH eligibility — because of missing this question. A child who is going to score low on the test will simply not reach the question.

The other items which are criticized for not being part of a child's "environment" are not claimed to be any more directly related to the everyday experience of a white child than they are to that of a black child. Hieroglyphics are not a pressing issue for any American child, white or black.

The next sub-test of the WISC-R is entitled "Picture Completion." It contains twenty-six items, with a point for each item. The test consists of twenty-six cards, each with a picture of an object. Something is missing in the picture and the child is to say what is missing. He continues with the test until he has four consecutive misses.

Items 1 through 4 are for 6 and 7 year olds. Item 1 shows an ordinary hair comb with some missing teeth. Dr. Williams criticized this item as unfair to black children because they may have been exposed only to an Afro-type comb and do not recognize the article shown in the picture.

Item 2 is a picture of a black woman with no mouth.

Item 3 shows a fox without a left ear. The right ear is clearly shown.

Item 4 shows the back of a hand. The little finger has no nail, whereas the nails on the other four fingers are vividly colored.

Items 5 through 26 are for children ages 8 to 16. Item 5 shows a cat with whiskers on the right side of its face but no whiskers on the left side. Item 6 shows a girl holding a doll, looking into a mirror. The mirror image shows the girl but not the doll. Item 7 is a clock showing all numbers but "8." There is a blank space where the "8" should be. Item 8 shows an elephant with only three legs. Item 9 shows a step ladder with one step missing. Item 10 is a picture of a dresser with four drawers. There are two knobs on three of the drawers but the fourth drawer has only one knob. Item 11 shows a belt with a buckle but no holes. Item 12 is a front view of a white man's face. Part of his nose is missing.

Item 13 is a picture of a door. There is a hinge shown toward the top of the door, but no other hinge is shown. Dr. Williams testified that a black child from poor economic circumstances might be accustomed to doors with missing hinges, so that he would not understand what element is missing in this picture.

Item 14 is a 5 of diamonds playing card. A diamond is shown in each of the four corners. The fifth diamond, which belongs in the center of the playing card, is missing.

Item 15 shows a black girl with a shoe and sock on her right foot but only a shoe on her left foot. Item 16 is a front view of a man's jacket showing three buttons but no buttonholes. Item 17 shows a boy wearing a wristwatch with the band missing. Item 18 shows a pair of scissors in the open position. The screw which connects the two blades is missing.

Item 19 shows a profile view of a white girl without an ear. Item 20 is a screw without a slot in the head. Item 21 shows a cow with a cleft in three of its hooves but no cleft in the fourth hoof. Item 22 shows a thermometer which has no mercury in its bulb.

Item 23 shows the sun shining on a house and tree. The house casts a shadow, but there is no shadow cast by the tree. Item 24 is a telephone which has no cord connecting the receiver to the base. Item 25 is a profile view of a white boy without an eyebrow. Item 26 shows an open umbrella without spokes.

The third sub-test on the WISC-R is "Similarities." All children begin with Item 1 and discontinue after missing three consecutive items. The seventeen items have different point values. Items 1 through 4 are one or zero, Items 5 through 17 are scored either two, one or zero.

On each item, the child is asked to tell how two things are alike. Item 1 is "wheel-ball." Acceptable responses are that they are both round, they both roll, they are both circles, they are both shaped like a zero, or an "o." Items 2, 3 and 4 are "candle-lamp," "shirt-hat," and "piano-guitar." The acceptable responses are the obvious ones.

The two-point items begin with Item 5. Two points are given for answers which identify a general classification into which both items fit. One point is given for identifying any specific properties or functions which are common to both items. For example, Item 5 is "apple-banana." Two points are given for any response indicating that both are fruits, one point is given for any response indicating specific properties, such as that both can be eaten. Item 6 is "beer-wine." Two points are given for any response indicating that both are alcoholic beverages, one point is given for a response indicating that both are drinks or both are liquid. The remaining items are as follows, with the two-point responses indicated in parentheses:

7.  Cat-mouse. (Animals)
8.  Elbow-knee. (Joints)
9.  Telephone-radio. (Means of communication)

10. Pound-yard. (Units of measurement)

11. Anger-joy. (Emotions)

  12. Scissors-copper pan. (Made of metal or
      utensils)
  13. Mountain-lake. (Natural features of the
      earth)

14. Liberty-justice. (Ideals)

  15. First-last. (Extremes or positions in a
      series)
  16. The numbers 49 and 121. (Both are perfect
      squares, or have odd-number square roots)
  17. Salt-water. (Necessary for life or chemical
      compounds)

Plaintiffs presented no evidence that any of the Similarities items are racially biased. Dr. Williams did not mention this sub-test.

The fourth sub-test is "Picture Arrangement." This consists of thirteen sets of pictures. Each set is presented to the child in a mixed-up order, and he is asked to arrange the cards in a sequence that tells a sensible story. The mixed-up order is the same for each child.

The child is allowed 45 seconds for each of Items 1 through 8 and 60 seconds for Items 9 through 12. The child continues with the items until he has three consecutive failures. Bonus points are given if the child finishes in less time than allotted for the item. The maximum score is 48 points.

Items 1 and 2 are for 6 and 7 year olds. Item 1 consists of three cards about a boxing match. One card shows the boxers in the ring, sparring. One is in black trunks, one is in white trunks. The second card shows the boxer in white trunks obviously winning the fight, and the third card shows the boxer in black trunks being carried away from the ring while the boxer in white trunks stands in the ring with his arms raised in victory.

Item 2 consists of three cards about a picnic. One card shows a man and woman carrying a picnic basket and being followed by a dog which is looking hungrily at the basket. Another card shows the dog pulling food out of the basket as the couple, unaware of his presence, continues walking. A third card shows the couple with their picnic blanket spread, reacting in consternation as they view their empty picnic basket.

Before the child starts each item, the examiner tells him something about the pictures. In Item 1, the examiner says, "These pictures tell the story about a fight, a boxing match. The pictures are in the wrong order now. See if you can put them in the right order so they tell a story that makes sense." In Item 2, the examiner says, "These pictures tell a story about a picnic. These pictures are in the wrong order now. See if you can put them in the right order so they tell a story that makes sense."

Items 3 through 12 are for 8 to 16 year olds. Item 3 consists of four cards. One shows a boy playing with matches and being scolded by his mother. Another card shows the match box and the window curtain on fire, and the boy running away. A third card shows a manned fire truck racing along the street, and a fourth card shows the little boy crying outside the burning building while the firemen fight the fire.

Item 4 consists of four cards which tell the story of a boy who used a nearby lumber pile to make a bridge to cross a stream.

Item 5 is four cards showing a burglar entering a window, stealing some items from a dresser and being confronted by a policeman as he comes back out the window.

Item 6 shows a man waking up to his alarm clock, wolfing down his breakfast, running down the sidewalk to work and then sleeping again at his desk at work.

Item 7 is four pictures showing an artist setting up her easel and painting a picture.

Item 8 shows a western gunman looking at a lasso in a store window and then shows the store proprietor tied up with the lasso while the gunman rifles the cash register.

Item 9 is a five-card story about a man whose boat drifts away from him before he can board it.

Item 10 tells a story about a boy whose mother handed him a spade with instructions to plant a tree. He used the spade to dig worms to go fishing.

Item 11 shows a man who purchased a bench, and, while walking down the street with it, accidently bumped another man in the head. The two men then become engaged in a fight while two spectators sit on the bench and watch.

Item 12 starts with a girl who is refusing an umbrella being offered by her mother. The mother is pointing to rainclouds visible through the window. The girl then goes out and the rain starts. The girl comes back inside, dripping water, and goes out again carrying the umbrella.

Dr. Williams did not comment on the picture arrangement sub-test in the WISC-R. He did criticize two of the items as they appeared in the earlier WISC test, and we will note those criticisms when we discuss the WISC.

Sub-test five is "Arithmetic." There are eighteen items, with one point for each, and a maximum score of 18 points. Children 6 and 7 years of age start with Item 1, 8 to 10 year olds start with Item 5, 11 to 13 year olds start with Item 8, and 14 to 16 year olds start with Item 10. There are 30 second time limits for Items 1 through 13, 45 seconds for Items 14 and 15, and 75 seconds for Items 16 through 18. The test is discontinued after the child has had three consecutive failures. A child may not use pencil and paper for any problem.

Items 1 through 4 are done with two cards. One card is blank and the other has 12 trees in a horizontal line.

In Item 1, the examiner places the tree card before the child and says, "Count these trees with your finger. Count them out loud so I can hear you." If the child counts the 12 trees, he scores one point.

In Item 2, the child is given the blank card and asked to cover up all of the trees on the other card except four. "Leave four trees showing."

In Item 3, the child is asked to cover up all trees but nine. In Item 4, the child is asked how many trees there would be on the tree card if one tree were added at each end of the line.

In Items 5, 6 and 7, the child is asked how many pieces he would have if he cut an apple in half, how many ribbons Barbara would have if she started with five and lost one, and how many pennies John would have if he started with four and his mother gave him two.

In Item 8, the child is told that Jim had eight marbles and bought six more. "How many marbles did he have altogether?" Item 9 asks how many newspapers a boy would have if he started with twelve and sold five.

Item 10, the starting point for 14 to 16 year olds, asks how much three candy bars would cost if they cost 8 cents each. Item 11 states that Bill, Dave and Tom each earned $9.00 working in a supermarket and asks how much they earned altogether. Item 12 states that a milkman had 25 cartons of milk and sold 14. "How many cartons did he have left?" Item 13 asks how many hours a workman worked if he was paid $4.00 an hour and earned $36.00. Item 14 asks how much change you would get back from a dollar if you bought two dozen pencils at 45 cents a dozen. Item 15 concerns four boys who had 72 pennies. If they divided them equally, how many pennies did each boy receive?

Items 1 through 15 are read to the child by the examiner. In Items 16 through 18, the child reads the problem aloud from a book. However, if he cannot read, the examiner will read the problem to him.

Item 16 asks, "If three pieces of bubblegum costs 5 cents, what will be the cost of 24 pieces?" Item 17 reads, "Tony bought a secondhand bicycle for $28.00. He paid two-thirds of what the bicycle cost new. How much did it cost new?"

Item 18 asks, "A jacket that usually sells for $32.00 was on sale for 1/4 less. When no one bought it, the store owner reduced the sale price by 1/2. How much did the jacket sell for after the second price reduction?" (Emphasis in original).

Plaintiffs offered no criticism of the Arithmetic sub-test. Dr. Williams did not mention it. Of the seven sub-tests still to be discussed, only one was referred to by any of the witnesses.

The sixth sub-test is "Block Design." The materials consist of nine small cubes colored red on two sides, white on two sides, and red/white on two sides. The remaining materials are eleven cards printed with pictures of the colored cubes arranged in various patterns. Each card is an item on the test. The child is shown the card by the examiner and asked to arrange the cubes to show the same design that appears on the card. The examiner demonstrates how it is done on the first three items before the child tries for himself. There is a time limit of 45 seconds for each of the first four items, 75 seconds for Items 5 through 8, and 120 seconds for Items 9 through 11. The child is allowed two tries on Items 1, 2 and 3. For each of Items 4 through 11, there are bonus points given for completion within various intervals under the allotted time limit. The maximum score for the eleven items is 62 points. The child continues until he has failed on two consecutive items.

As with the other sub-tests, the items become progressively more difficult. Items 1 and 2 on this sub-test are for 6 and 7 year olds, and Items 3 through 11 are for ages 8 through 16. It is unnecessary to describe every item. A description of the first three items and one of the advanced items will suffice to indicate the nature of the test.

Item 1 shows four cubes arranged in a square. The bottom two cubes are solid red and the top two are solid white. Item 2 again shows four cubes stacked in a square. This time, the white ones are at the top left and bottom right while the red ones are at the top right and bottom left. Item 3 is again an arrangement of four cubes in a square. The top two cubes and the bottom right cube are red. The bottom cube on the left is divided diagonally into a red half on the right and a white half on the left.

Item 11 is an exotic design which looks something like a pinwheel. It requires all nine cubes and is difficult to construct within the time limit.

The seventh sub-test on the WISC-R is "Vocabulary." The items are thirty-two words, with a maximum score of 64 points. The examiner says the words to the child. ("I am going to say some words. Listen carefully and tell me what each word means.") The child can score either one or two points on each item, depending upon the quality of the answer. The manual provides detailed scoring instructions, with sample answers, indicating how various responses should be scored. The examiner is instructed to disregard "elegance of expression." (Manual, p. 161). Generally, a two-point answer is one which shows in some way that the child is thoroughly familiar with what the word means, whereas a one-point answer is one showing less understanding. An obviously wrong answer results in zero points.

Six and 7 year olds start with Item 1, 8 to 10 year olds start with Item 4, 11 to 13 year olds start with Item 6, and 14 to 16 year olds start with Item 8. A child continues until he has five consecutive failures.

Item 1 is "knife." The following are given as samples of two-point responses: "Something you cut with . . . has a blade and a handle . . . silverware, it cuts . . . a weapon . . . to stab with . . . you can peel an apple with it. . . ." Samples of one-point responses are listed as: "eat with it . . . to kill people . . . sharp . . . made of steel . . . you can scare people with a knife . . . to hunt with. . . ." Zero-point responses are: "I play with it . . . I have one . . . put in your pocket."

Item 2 is "umbrella." Two-point responses are: "Use it to keep the rain off . . protects you when it rains . . . put it over your head when it rains . . . so you don't get wet when it rains." One-point responses are: "Carry it when it rains . . . big round thing that can fold up . . . put it over your head . . . to keep off the sun . . . you hold it up (gives appropriate demonstration) . . helps you if it starts raining . . . keeps you dry." All of these one-point responses are marked with "Q" in the manual, indicating that the examiner should follow up the response with another question as to what the child means. If a child says, "Put it over your head," the examiner should ask, "Explain what you mean." If the child says something like, "You know, like when it rains," he is given two points for the response.

Dr. Williams criticized "umbrella" as a vocabulary word for black children because a black child might call the object a "parasol" and not know the meaning of the word "umbrella." According to Dr. Williams, the object is called a "parasol" in the black community. He did not indicate whether the word "umbrella" is also known in the black community, in the same way "parasol" is known but not commonly used in the white community.

The "umbrella" item is the only one on the Vocabulary sub-test which drew any comment from plaintiffs.

Items 3 through 32 of the vocabulary test are as follows:

  3. Clock
  4. Hat
  5. Bicycle
  6. Nail
  7. Alphabet
  8. Donkey
  9. Thief
  10. Join
  11. Brave
  12. Diamond
  13. Gamble
  14. Nonsense
  15. Prevent
  16. Contagious
  17. Nuisance
  18. Fable
  19. Hazardous
  20. Migrate
  21. Stanza
  22. Seclude
  23. Mantis
  24. Espionage
  25. Belfry
  26. Rivalry
  27. Amendment
  28. Compel
  29. Affliction
  30. Obliterate
  31. Imminent
  32. Dilatory

Sub-test 8 is "Object Assembly." The materials are four sets of cardboard pieces, each in a separate box. The pieces in each box fit together to make an object, like the pieces of a jigsaw puzzle. The entire sub-test is given to all children. Each item has a time limit ranging from 120 seconds for Item 1 to 180 seconds for Item 4. The score for each item is based upon the number of pieces correctly joined plus time bonuses for completion within certain intervals less than the time allotted.

The test starts with a sample item, a five-piece assembly of an apple. The examiner shows the child how to assemble the apple and then proceeds to Item 1.

Item 1 is a figure of a white girl wearing a dress. The figure is in seven pieces. One piece is the head, a second piece is the upper torso, a third piece is the lower torso and portions of the legs and the other four pieces are the remaining portions of the legs and the two arms. The examiner arranges these seven pieces in a specified configuration, shown in the manual, before the child and says to the child, "If you put these pieces together the right way, they will make a girl. Go ahead and put them together." If the child does not complete the assembly perfectly within the allotted 120 seconds, the examiner shows him the correct assembly and says, "See, it goes like this." The test then proceeds to Item 2 and no further help is given.

Item 2 is a six-piece assembly of a horse. Item 3 is a seven-piece assembly of an automobile. It is an ordinary looking sedan. Item 4 is an eight-piece assembly of the face of a white male.

The ninth sub-test is entitled "Comprehension." It consists of seventeen questions. All children begin with Item 1 and continue until they have four consecutive failures. Each item is scored two, one or zero, depending upon the quality of the response. The maximum score is 34 points.

Each question is read slowly to the child and may be repeated if there is any indication the child does not understand it.

Item 1 is, "What is the thing to do when you cut your finger?" The general criteria for a two-point answer are "put a bandage on it, cleanse it, or medicate it." Specific examples of two-point answers are: "put a bandaid on it . . . fix it up with medicine (may mention a specific one, e.g., iodine) . . . wash it with soap and water . . . stop the bleeding . . put pressure on it . . . wrap it . . tape (tie, patch) it up . . . let it bleed (Q) it cleans the cut." Example of one-point answers are: "tell my mother (teacher) about it . . . treat it (Q) . . go to the doctor (hospital) . . . get it stitched up . . . soak it (Q) . . . put it under water (Q)."

The "Q" means that the examiner should ask the child to elaborate because he may be able to give a two-point answer.

We will list the remaining items and the general criteria for a two-point response, without quoting in detail the sample responses given by the manual.

Item 2 is, "What are you supposed to do if you find someone's wallet or pocketbook in a store?" The general criteria are: "try to return it to the owner, either by looking for identification of the owner or by giving it to the store owner, policeman, etc."

Dr. Williams criticizes this question because ". . . given the context today of the negative emphasis on black crime, black children pulling wallets or snatching purses, it would be suicide for a child to say, `I would pick it up and try to find the owner.' Black kids are afraid to say that. So that the correct answer is, `try to find the owner' and that's not a good thing for them to do in a store. They would be accused of having snatched it."

We believe this criticism may well have merit.

Item 3 is, "What should you do if you see thick smoke coming from a window of your neighbor's house?" The general criteria are: "have the Fire Department or Police Department notified. Call the fire (police) department . . . get a policeman (fireman) . . . pull down the handle in a firebox . . . report it" and "perform some action until the firemen arrive."

Item 4 is, "What are some reasons why we need policemen?" The general criteria are: "to protect people or property (by preventing a possible criminal action), to enforce laws (when a crime is occurring or has occurred)," and "to help people with noncriminal problems."

Dr. Williams testified that he has had responses from black children to the effect that "we don't need policemen, we can take care of our own community, because the policemen come in here and they treat us badly."

Item 5 is, "What is the thing to do if you lose a ball that belongs to one of your friends?" The general criterion is: "replace the loss." Samples of two-point responses are: "give him (her) one of mine . . . try to get it back or replace it . . . pay for it . . . buy her a new one . . . buy another one if I can't find it." Dr. Williams commented on this question by saying that when he asked this question several years ago, "a little black boy told me, he said, `well, I take him to the hospital.'" Dr. Williams explained that the little boy was "coming from his own cultural reference point," which is that "balls" refers to a portion of the anatomy. Dr. Williams did not state how often he had encountered this confusion among black children or whether he had any reason to believe that the term could not have the same meaning to a white child.

Item 6 is, "What is the thing to do if a boy (girl) much smaller than yourself starts to fight with you?" The general criterion is "do not fight with him (her)." Examples of two-point responses are: "just walk away . . . don't hit him, find out what's the matter . . . let him be. . . ."

This "fight" question in the WISC-R is undoubtedly the most famous item in the IQ controversy. It is the item most cited by critics of the tests as an example of serious racial bias. The reason it is biased, according to Dr. Williams and some of the other authors whose articles are in evidence, is that in black communities children are taught that if anyone hits them they should hit back. Defendants point out that in the only study which has been made of the matter, it appears that this question is of the same relative difficulty in relation to the other items on the WISC-R for white children as it is for black children. This, however, does not answer the question of whether black children answer the item incorrectly more often than white children do. According to another study, black children do in fact fail this item with about twice the frequency of white children. We believe on this basis that there is strong reason to believe the item is racially biased.

Item 7 is, "In what ways is a house built of brick or stone better than one built of wood?" General criteria are: "more durable (more permanent, sturdier); "safer;" "better insulation;" "convenient (less upkeep . . . don't have to paint brick or stone . . .)." Two points are given for a response recognizing at least two of the four general criteria and one point for recognizing any one of them.

Item 8 is, "Why is it important for cars to have license plates?" The four general criteria are: "identification of the owner of the vehicle;" "identification of the vehicle itself;" "source of income for state government;" "statistical records." Two points are given for a response recognizing any two of the four general criteria and one point for recognizing one of them.

Item 9, another two-point question, is, "Why are criminals locked up?" Five general criteria are listed: "Protection for society;" "example to others;" "punishment or revenge;" "rehabilitation;" "segregation."

Item 10 asks, "Why do we have to put stamps on letters?" The general criterion is: "to pay for the mailing of the letter." A child receives two points for any response indicating "that the stamps are like money," and one point for any response which shows an awareness that the letter cannot be delivered without a stamp even though the child does not explain the purpose of the stamp.

Item 11 is, "Why is it important for the government to hire people to inspect the meat in meat packing plants?" The general criterion is: "to protect the consumer (to assure that certain standards are met, prevent widespread disease, etc.)."

Dr. Williams offered some cogent criticisms of this question. He pointed out that a poor child or a child on welfare would be less likely to give to an organized charity than to a blind or crippled person he saw on the street. One of the zero responses listed for this item is, "If you give it to a beggar, he is liable to keep it himself." Dr. Williams suggested that this is exactly what you would want the beggar to do and that such a response is not inappropriate. We are persuaded by Dr. Williams' analysis and regard this item as particularly inappropriate for poor children or children on welfare. It is conceded that a higher percentage of black children than white are poor, or on welfare, and the item therefore discriminates against blacks.

Item 13 is, "Why is it good to hold elections by secret ballot?" The general criterion is: "so a person can vote as he chooses without fearing what others will think or do about it (without fear of public pressure)."

Item 14 is, "In what ways are paperback books better than hard-covered books?" The general criteria are: "cheaper (also more expendable);" "lighter to carry;" "greater availability (i.e., for purchase);" "easier to store." Two points are given for recognizing any two of these general ideas and one point for one idea.

Item 15 asks, "Why should a promise be kept?" The general criterion is: "basis of faith and mutual trust, has status of implied contract." The child receives two points for expressing the idea of mutual trust or for expressing the idea of the mutual advantage to be gained from keeping promises. One point is given for a statement recognizing a particular advantage, usually to one person, such as "so you can be trusted."

Item 16 is, "Why is cotton often used in making cloth?" The six general criteria are: "durability;" "washability;" "cheapness (or abundance);" "coolness;" "facility in weaving (or sewing);" "takes dyes well."

Item 17 on the Comprehension sub-test is, "What are the advantages of having senators and congressmen?" The general criteria are: "to make laws (or any specific function such as to levy taxes, vote on bills, etc.);" "the population is too large to meet as a body;" "to ensure that all parts of the country are represented;" "to act as spokesmen for the people;" "checks and balances."

Of the seventeen comprehension items, then, five were criticized by Dr. Williams as unfair to blacks. I accept his analysis as far as Items 2 (wallet), 6 (fight) and 12 (beggar) are concerned. I am not persuaded by his views of Item 4 (policeman) and regard his concern about Item 5 (ball) as farfetched.

Sub-test 10 on the WISC-R is "Coding." It is divided into two parts. "Coding A" is for children under eight, and "Coding B" is for children eight and older.

"Coding A" is a printed worksheet with five figures at the top. They are a star, a circle, a triangle, a cross and a square, arranged horizontally across the paper. Each figure has a symbol inside it. Inside the star is a vertical line which resembles the figure "1." The circle encloses two horizontal lines. There is one horizontal line inside the triangle. There is a circle in the center of the cross. The square encloses two vertical lines which resemble the figure "11."

Below these figures on the worksheet are five rows of the same figures arranged in a random sequence. However, these figures have no symbols inside them. The object of the test is for the child, using a pencil, to put the appropriate symbol from the top row into each of the figures in the bottom rows. The first half of the top test row is a "sample," consisting of one of each of the figures — a circle, a star, a square, a cross and a triangle. These, like the others in the test rows, are empty. The examiner explains the test to the child, ". . . I want you to fill in the things here with the same marks they have at the top . . ." The child then works the sample exercise and is told whether he is doing it correctly. The examiner is cautioned not to begin the actual test until the child clearly understands the task.

The child is then told to fill in as many of the remaining test items as he can until he is told to stop, without skipping any. The examiner stops the child at the end of 120 seconds. The child receives one point for each item filled in correctly. A perfect score is 45. The child can achieve as many as five bonus points for completing the test in less than the time allotted.

"Coding B" is the same general kind of test, but more difficult. Instead of figures such as squares and triangles, there are numbers one through nine. There is a symbol corresponding to each number, and the symbols are not entirely dissimilar. The symbol for the number "1", for instance, is a horizontal line with a dot above it. The symbol for the number "8" is a horizontal line with a dot below it.

In the section below these figures on the worksheet are four rows of the numbers one through nine arranged in random order, with a box under each number. In each box the child enters the symbol corresponding to the number. Again, the examiner explains the test to the child and some sample boxes are provided. The examiner is instructed not to proceed with the test until the child clearly understands the task. The examiner stops the child after 120 seconds. One point is scored for each item filled in correctly. There is no penalty for poor drawing. The item is scored as correct if it is "clearly identifiable as the keyed figure, even if it is drawn imperfectly. . . ." There are 93 items in Coding "B", and the maximum score is therefore 93.

Sub-test 11 of the WISC-R is entitled "Digit Span." It tests the ability of the child to repeat numbers after the examiner. "I am going to say some numbers. Listen carefully, and when I am through say them right after me." There are two parts to this sub-test, "Digits Forward" and "Digits Backward." In the former, the child repeats the numbers in the order the examiner says them, and in the latter the child is told to repeat the numbers in reverse order.

Each item consists of two "trials." For instance, the two trials of Item 1 in "Digits Forward" are "3-8-6" and "6-1-2." There are seven items in each of the two tests, and the items become longer by one digit in each trial. Item 7 in the "Digits Backward" test, for instance, consists of these two trials: "6-9-1-6-3-2-5-8" and "3-1-7-9-5-4-8-2."

The maximum score on each test is 14 points. The child receives two points if he passes both trials of the item and one point if he passes only one trial. The test is discontinued as soon as the child fails both trials of any item.

The twelfth and final sub-test on the WISC-R is "Mazes." This consists of nine drawings contained in a worksheet (the same worksheet that contains the "Coding" sub-test). Each drawing consists of a series of concentric squares, with gaps in the lines, so that one can, with varying degrees of concentration, trace ones way from the center of the drawing to a point outside the drawing by finding the openings in the lines. At the center of each drawing is the figure of a boy or a girl, and the task is to lead the boy or girl out of the maze, using a red pencil. The child is told to keep his pencil point on the paper and to avoid touching any lines. "You're not allowed to go through a wall."

There is a sample maze which the examiner uses to demonstrate the test to the child. "See this boy in the middle here? (point) He wants to get out to the street there (point). Let me show you how he could do it without getting stuck. Watch me. . . . No, not this way. You see, if he took this turn he would get stuck by the blocked road. He can't go through a wall (point). He must go this way to get out."

The first maze is very simple, and, as is true of the items on all the sub-tests, they become progressively more difficult. Items 1 through 7 are reasonably easy; Items 8 and 9 are formidable.

Children ages 6 to 7 begin with Maze 1, children ages 8-16 begin with Maze 4. The scoring is somewhat complicated. There is a time limit for each maze. Numbers 1 through 4 are 30 seconds. Five is 45 seconds, 6 is 60 seconds, 7 and 8 are 120 seconds, and 9 is 150 seconds. The points awarded for each maze are a function of time and error. A perfect score, up to 5, is awarded for solving the maze within the allotted time with no errors. (An error is defined as entrance into a blind alley.) Partial credit is given for solving the maze within the allotted time, albeit making errors along the way.

The test is discontinued after the child has two consecutive failures — that is, where he has failed to achieve any points at all on two consecutive mazes.

The maximum score is 30 points.

This completes the description of the sub-tests of the WISC-R. It will now be helpful to discuss briefly how the test was devised. The information about the test is derived from the WISC-R Manual, and the parties do not dispute the accuracy of that information.

As indicated by the "R," this test is a revision of an earlier test, the simple "WISC." It was an attempt to update the earlier test and to eliminate some deficiencies which the test authors acknowledged in their earlier efforts. We will discuss the WISC itself in some detail at a later point in this opinion, since it is still used by the defendants and is one of the tests challenged by the plaintiffs.

The WISC-R was administered in 1970 to 2,200 subjects, ages 6 1/2 to 16 1/2. There were eleven age groups, with 200 children in each group. Children of minority groups were included in the same proportion as minorities appeared in the 1970 census. Three hundred five black children were included in the sample of 2,200. Half of the children were male, half were female. The subjects were drawn from five categories, depending upon the education of the father or head of the household. The percentages were the same as were reflected in the 1970 census. The 2,200 subjects were drawn proportionately from the four geographical areas of the 1970 census, with the same distribution of urban and rural children as reflected in the census. Only normal children were used, except that children who were only suspected of mental deficiency were not excluded. Two hundred two different examiners administered the sample tests to the 2,200 subjects.

With this mix of children, deemed by the test authors to be representative of the general population, the test questions were administered for the purpose of determining the range of performance in each of the age groups. A statistical profile, resembling the familiar bell-shaped curve, was established for each age group. Mean scores and standard deviations were established on each of the sub-tests for each of the age groups. A child who takes the WISC-R achieves a score which is compared to the scores achieved by the other children in his age group. The total points achieved by the child on each of the sub-tests are added and then converted to a scaled score. This is the IQ score. An IQ of 100 is the mean. The standard deviation is 15. About two-thirds of all children achieve IQ scores between 85 and 115 — that is, between one standard deviation below and one standard deviation above the mean. About 95 per cent score in the 70 to 130 range, two standard deviations above and below the mean.

The WISC-R has not totally displaced the earlier WISC test, at least as far as the Chicago School System is concerned. For reasons which are not entirely clear in the record, some children, without regard to race, are given the WISC rather than the WISC-R. The two tests combined are given to a total of 69 per cent of the children who are given intelligence tests, with the WISC-R being used in the majority of these instances. The revised Stanford-Binet, Form L-M, the third test under attack in this case, is given to 19 per cent of the children tested.

There is a temptation to shorten this opinion by saying that the WISC is substantially similar to the WISC-R, so that whatever conclusions one draws as to the racial bias of one will apply to the other. The temptation is particularly strong because the parties themselves have made no effort to distinguish between the two tests. But as I have indicated, I believe the persuasiveness of judicial opinions in this area must depend upon exposition and analysis of the test materials, not upon bald pronouncements or conclusions. Where the WISC is identical to the WISC-R, I will so indicate. Where there are differences, I will describe the actual test items of the WISC.

THE WISC

The WISC test was published in 1949. It was standardized on 2,200 children, with 200 in each age group, in much the same manner as the WISC-R. The 1940 census was used as the statistical base and the sample was drawn so as to reflect the general population in terms of geographic areas, urban versus rural, and parental occupation. The manual notes, without comment, that "only white children were examined."

The WISC is divided into the same twelve sub-tests as the WISC-R. The general instructions to the examiner as to how to give the tests are in all significant respects of the same tenor as those in provided with the WISC-R. In describing the various sub-tests, it will generally be unnecessary to refer to the instructions concerning administration or scoring.

The first sub-test on the WISC is entitled "General Information." It consists of thirty items, as did the Information sub-test on the WISC-R. The following items on the two sub-tests are identical:

WISC      WISC-R
  1          2
  2          1
  3          3
  5          4
  7          5
  8          7
  9         12   (Who discovered America?)
  10        10   (Where does the sun set?)
  11        11
  13        14
  14        13   (What does the stomach do?)
  15        18
  19        24   (How tall is the average American man?)
  21        20
  22        23
  23        30
  27        25
  28        28

In addition, Item 20 on the WISC, "Where is Chile?," was replaced by the less ambiguous, "In what continent is Chile?," as Item 21 on the WISC-R. The remaining eleven items on the WISC were not carried over into the WISC-R. They are as follows:

Item 4 asks, "From what animal do we get milk?" The answer is: "cow(s); goat(s)." (On the WISC-R, Item 9 is, "From what animal do we get bacon?").

Item 6 on the WISC is, "In what kind of a store do we buy sugar?" The answer is: "grocery store; food store; name of local store like A & P."

Number 12 on the WISC is, "What is the color of rubies?" The answer is: "red; maroon." Dr. Williams criticized this item as confusing to black children because "Ruby" can be a woman's name. Dr. Williams testified that he had a little boy say, "Well, she's black." Dr. Williams commented he felt this was a "very creative response," and that it was not appropriate to score that response a zero. It is doubtful that such an answer would be evaluated as indicating mental deficiency. The WISC manual (p. 18) cautions the examiner that the responses of the subject should be recorded exactly as they are given and states that ". . . a full recording of the subject's answers permits a subsequent evaluation and a fuller consideration of them in comparison with responses obtained on other tests." Thus, while the test item might be a poor one (it was not repeated on the WISC-R), I am not persuaded that a black child who misunderstands the question would be penalized. If the more complete instructions in the WISC-R manual were applied to the WISC where appropriate, the chance of a mistaken evaluation lessens. The WISC-R Manual (p. 60) indicates that the examiner should ask the child to elaborate upon an ambiguous answer and also to give full credit to any response that is "equal to or better than" the sample answers.

Notwithstanding these observations, we will not discount Dr. Williams' suggestion that a black child could be penalized by Item 12. Item 16 on the information sub-test is, "Who wrote `Romeo and ...


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