Thompson v. Borg-Warner Case Settled...by Maureen P. Toner and David W. Arnold, Esq., Reid Psychological Systems

Earlier this month, Borg-Warner, the nation's largest security firm, settled a lawsuit regarding its use of a preemployment test for $2.1 million. In 1994, the American Civil Liberties Union had filed a class action suit against Borg-Warner Protection Services, alleging that the defendant's subsidiary, Burns International Security Services, had violated the Americans with Disabilities Act ("ADA") and the California Labor Code when it declined to hire plaintiffs such as Mel Craig Thompson as a result of a preemployment test, the PASS-III D.A.T.A Survey ("PASS-III").

The Court, when asked in a pre-trial motion to grant summary judgment for these claims, granted summary judgment to the defendant with regard to the ADA claims. In the opinion of the Court, the test had not violated the ADA for two reasons. First, the test was not considered a preemployment medical examination as defined by the Equal Employment Opportunity Commission ("EEOC"). Further, the test had also not violated the ADA because it had not inquired about past drug or alcohol addiction. The Court noted that pre-offer inquiries about current unlawful drug use, past casual use and the use of alcohol, short of alcoholism, are permitted under the ADA.

However, the Court denied summary judgment for the claim that the test violated the California Labor Code prohibiting discrimination on the basis of political views or affiliations. In the opinion of the Court, the issue of whether questions designed to reveal attitudes towards illegal drug use could be interpreted as political barometers should be decided in court. Some questions which could be interpreted as such are:

	The government has no right to interfere with a person who chooses to use drugs if it doesn't hurt anyone.
	The police and courts are lenient on drug users.
	The drinking age should be lowered.
	Marijuana should be legalized.

The plaintiffs argued that applicants who tend to exhibit lenient attitudes toward drug use (and other politically charged topics) also tend to hold more liberal political beliefs, and that a question regarding the legalization of marijuana was particularly politically charged in the state of California.

According to the lawyers for the plaintiffs, the settlement would cover the approximately 8,000 applicants who were administered the PASS-III between 1991 and 1995, at which time Burns Security discontinued its use as a preemployment screening tool. Those who were denied employment as a result of the test would receive an estimated $1,259, while applicants who took the test and were hired would receive $500. According to the San Francisco Chronicle, Borg-Warner issued a statement: "We denied all liability...and our decision to settle was based on business and economic reasons."

The court still must approve the settlement which is due back later this summer.

The debate about how to achieve diversity in higher education and its impact on testing

Toward Diversity in Higher Education...by Patricia H. McAllister, Director, ETS State and Federal Relations Office

This article, which appeared in the May/June 1998 edition of Capital News and Views has been reprinted with permission of the Educational Testing Service, the copyright owner.

The debate about how to achieve diversity in higher education has intensified among public policy makers, educators and others in the wake of the Hopwood decision, California Proposition 209 and related initiatives. The controversy on affirmative action is related to the appropriate role and use of admission test scores within the context of achieving diversity in higher education. The (ETS) State and Federal Relations Office closely follows federal, state and other initiatives relative to affirmative action.This article provides an update on recent initiatives and issues of interest...

An initiative to ban affirmative action as part of the higher education and admissions process was recently considered in Congress. The Riggs amendment to the Higher Education Act ("HEA"), which was voted down, would have barred public institutions of higher education receiving federal funds from giving preferences in admission to applicants based on race, ethnicity, gender or national origin. The active opposition to the amendment by members of the higher education community, including the Educational Testing Service ("ETS"), culminated in bipartisan resistance and subsequent defeat in the House.

State legislatures are also considering legislation on this topic. Last year eleven states considered bills to limit affirmative action in some way, and such considerations, continue this year in 12 states. The California state legislature is considering legislation to establish a pilot student success study which utilizes alternative admissions criteria and waives the use of standardized tests in undergraduate admissions. The bill describes three pools of talented students to which the University of California (UC) will apply alternative criteria for admissions. One pool will consist of applications of potentially eligible students from schools with a historically low rate of UC eligibility. For these students, SAT II subject test scores will be waived, provided that students complete a college preparatory sequence of courses and earn grade point averages (GPA's) above the minimum required by the University. The SAT I /ACT will be waived if the earned score does not fall more than one-half standard deviation below the score needed to attain regular eligibility, and all other requirements are met.

The pilot study will be in place for five years to monitor the academic progress and success of all students granted alternative admission, compared with a control group of regularly admitted students. The study will examine term-to-term and year-to-year persistence, successful completion of degree requirements and degree receipt, among other things.

Another proposal receiving active consideration in California involves offering admission to UC to the top four percent of graduating seniors from every public high school in the state. Students' class rank would be based on their grades in the academic courses already required for UC admissions. These students would still be required to take the SAT, but it would be for record keeping purposes only. This proposal would need UC Board of Regents' consideration and approval which may come as early as July.

The Texas legislature recently created a Senate Interim Committee to forge a legislative plan on affirmative action in higher education, state contract and employment. Houston Mayor Bob Lanier was selected to head this Committee, whose work began in May with the goal of developing a plan in time for the 1999 session of the Texas legislature. (There is no legislative session in Texas this year.)

The Texas Higher Education Coordinating Board has created the Texas Commission on a Representative Student Body to undertake a serious assessment of current efforts associated with the recruitment, retention, and graduation of minority students at colleges and universities in the state.

By August 1998, the Commission will develop recommendations for the future designed to encourage more representative student populations at Texas colleges and universities.

Observers of affirmative action initiatives are also attuned to a forthcoming ballot initiative in Washington state this fall. The Washington proposal is similar to California's Proposition 209 in that it would ban "preferences" based on race or sex in state contracting, hiring and admissions to public colleges and universities. The Washington ballot initiative is receiving special attention because minorities constitute only 14 percent of the population, and most ballot and legislative initiatives with the exception of Proposition 209 have not been successful.

Passage of the Washington state ballot initiative could signal renewed vigor in the ballot movement. The courts are the venue where anti-affirmative action bans have had the most success.

The University of Wisconsin Board of Regents recently approved a 1990s affirmative action plan (Plan 2008) to expand the pool of qualified minority students by doubling the number of precollege programs the university sponsors in elementary and secondary schools. This proposal is intended to improve teaching, along with college and career counseling in the schools. It also is likely to forge a stronger partnership between K-12 educators and the higher education sector. Higher education has often been criticized for not having a stronger presence in K-12 education reform and the Wisconsin initiative will be worth watching, as it focuses on expanding the pool of qualified applicants without altering admission standards

LONG-TIME "ETS" LEADER TO HEAD ATP BOARD OF DIRECTORS AS 1998-99 CHAIR