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Appendix A: Glossary of Legal Terms

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This glossary is provided as a plain language reference to assist non-lawyers in understanding commonly used legal terms that are either used in this guide or are important to know in understanding the terms in the guide. Legal terms are often ?terms of art.? In other words, they mean something slightly different or more specific in the legal context than they do in ordinary conversation.

Burden of proof - the duty of a party to substantiate its claim or defense against the other party. In civil actions, the weight of this proof is usually described as a preponderance of the evidence. Black?s Law Dictionary 196-97 (6th ed. 1990); see also Disparate impact.

Constitutional rights - the rights of each American citizen that are guaranteed by the United States Constitution. See Brown v. Board of Educ., 347 U.S. 483 (1954); Bolling v. Sharpe, 347 U.S. 497 (1954); Black?s Law Dictionary 312 (6th ed. 1990).

De jure segregation or discrimination - term applied to systemic school segregation that was mandated by statute or that was accomplished through the intentionally segregative actions of local school districts or state agencies.

Different Treatment - a claim that similarly situated persons are treated differently because of their race, color, national origin, sex or disability. Under federal nondiscrimination laws, policies and practices must be applied consistently to an individual or group of students regardless of their race, national origin, sex, or disability, unless there is a legally permissible reason for not doing so. Title VI, Title IX, Section 504, and the ADA prohibit intentional discrimination on the basis of race, national origin, color, sex, or disability. Elston v. Talladega County Bd. of Educ., 997 F.2d 1394, 1406 (11th Cir. 1993). This requires a showing that the decision-maker was not only aware of the person?s race, national origin, sex, or disability, but that the recipient acted, at least in part, because of the person?s race, national origin, sex, or disability. However, the record need not contain ?direct evidence of bad faith, ill will or any evil motive,? on the part of the recipient. Id., at 1406 (quoting Williams v. City of Dotham, 745 F.2d 1406, 1414 (11th Cir. 1984)). Evidence of discriminatory intent may be direct or circumstantial such as evidence of different treatment. Different treatment may be justified by a lawful reason, for example, to remedy prior discrimination. See generally United States v. Fordice, 505 U.S. 717, 728-30 (1992); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 290-91 (1986); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 305-20 (1978); Hopwood v. Texas, 78 F.3d 932, 948-50 (5th Cir. 1996), cert. denied, 518 U.S. 1033 (1996); Black?s Law Dictionary 470 (6th ed. 1990).

Disparate impact - disparate impact analysis applies when the application of a neutral criterion or a facially neutral practice has discriminatory effects and the criterion or practice is not determined to be ?educationally justified? or ?educationally necessary.? In contrast to intentional discrimination, the disparate impact analysis does not require proof of discriminatory motive. Under the disparate impact analysis, the party challenging the criterion or practice has the burden of establishing disparate impact. If disparate impact is established, the party defending the practice must establish an ?educational justification.? If the educational institution provides sufficient evidence that the test use in question is justified educationally, the party challenging the test has the opportunity to show that there exists an alternative practice that meets the institution?s goals as well as the challenged test use and that would eliminate or reduce the adverse impact. See Board of Educ. v. Harris, 444 U.S. 130, 143 (1979); Georgia State Conf. of Branches of NAACP v. Georgia, 775 F.2d 1403, 1412 (11th Cir. 1985); Groves v. Alabama State Bd. of Educ., 776 F. Supp. 1518 (M.D. Ala. 1991),

Dual system - a previously segregated educational system in which black and white schools, ostensibly similar, existed side-by-side. See Brown v. Board of Educ., 347 U.S. 483 (1954); Anderson v. Banks, 520 F. Supp. 472, 499-501 (S.D. Ga. 1981).

Due process - a constitutionally guaranteed right. The Fifth Amendment states that no citizen shall ?be deprived of life, liberty, or property, without due process of law.? The Fourteenth Amendment applied this passage to the states as well. Today it is used by the judiciary to define the scope of fundamental fairness due to each citizen in his or her interactions with the government and its agencies. Some courts have held that a student?s expectation in receiving a high school diploma in return for meeting certain attendance and academic criteria is a form of a property right or liberty interest. See Debra P. v. Turlington, 644 F.2d 397 (5th Cir. 1981); Crump v. Gilmer Indep. Sch. Dist., 797 F. Supp. 552, 555-56 (E.D. Tex. 1992); Black?s Law Dictionary 500-01 (6th ed. 1990); see also Procedural due process, Substantive due process. But see Board of Educ. v. Ambach, 458 N.Y.S.2d 680, (N.Y. App. Div. 1982), aff?d, 457 N.E.2d 775 (1983).

Educational necessity - once the party challenging the practice has shown a significant disparate impact, the educational institution using the challenged practice must present sufficient evidence that it is justified by educational necessity. Educational necessity generally refers to a showing that practices or procedures are necessary to meeting an important educational goal. Elston v. Talladega County Bd. of Educ., 997 F.2d 1394, 1412 (11th Cir. 1993) (citing Georgia State Conf. of Branches of NAACP v. Georgia, 775 F.2d 1403, 1412, 1417 (11th Cir. 1985)). In the context of testing this means the test or assessment procedure must serve a legitimate educational goal and be valid and reliable for the purpose used.

Equal protection - classifications based on race, sex or other grounds may be challenged under the equal protection clause of the Fourteenth Amendment to the U.S. Constitution when imposed by state or local government agencies. Distinctions explicitly based on race or ethnicity, neutral criteria having a discriminatory purpose, or other intentionally discriminatory conduct based on race or ethnicity will violate the Fourteenth Amendment, unless the action is narrowly tailored to serve a compelling purpose. Intentional sex discrimination will violate the Fourteenth Amendment unless there is an exceedingly persuasive justification. United States v. Virginia, 518 U.S. 515 (1996). Distinctions based on other grounds will not violate the equal protection clause unless they are not rationally related to a legitimate governmental objective.

Facially neutral - a regulation, rule, practice or other activity that does not appear to be discriminatory. A facially neutral practice may be found in violation of federal law if the practice results in significant differences in the distribution of benefits or services to persons based on race, national origin, sex or disability without a substantial legitimate educational justification or there are equally or comparably effective alternative practices available that meet the institution?s goals with less disparate impact. See, e.g., Lau v. Nichols, 414 U.S. 563 (1974); Larry P. v. Riles, 793 F.2d 969 (9th Cir. 1984).

High-stakes educational decisions for students - a regulation, rule, practice or other activity that does not appear to be discriminatory. A facially neutral practice may be found in violation of federal law if the practice results in significant differences in the distribution of benefits or services to persons based on race, national origin, sex or disability without a substantial legitimate educational justification or there are equally or comparably effective alternative practices available that meet the institution?s goals with less disparate impact. See, e.g., Lau v. Nichols, 414 U.S. 563 (1974); Larry P. v. Riles, 793 F.2d 969 (9th Cir. 1984).

Less discriminatory alternative - if the education institution presents sufficient evidence that the test use or educational practice in question is justified educationally, the party challenging the test has the opportunity to show that there exists an equally or comparably effective alternative practice that meets the institution?s goals and that would eliminate or reduce the adverse impact. Elston v. Talladega County Bd. of Educ., 997 F.2d 1394, 1407 (11th Cir. 1993); Georgia State Conf. of Branches of NAACP v. Georgia, 775 F.2d 1403 (11th Cir. 1985). Costs and administrative burdens are among the factors considered in assessing whether the alternative practice is equally effective in fulfilling the institution?s goals. Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 661 (1989); Sharif v. New York State Educ. Dep?t, 709 F. Supp. 345, 363-64 (S.D.N.Y. 1989) (defendant?s claim that proposed alternative was not feasible and was excessively burdensome not persuasive since most other states used proposed alternative).

Procedural due process - the right each American citizen has under the Constitution to a fair process in actions that affect an individual?s life, liberty or property. Procedural due process includes notice and the right to be heard. Some courts have found that procedural due process applies to the implementation of minimum competency examinations required for high school graduation. Debra P. v. Turlington, 474 F. Supp. 244, 263-64 (M.D. Fla. 1979), aff?d in part and vacated in part, 644 F.2d 397 (5th Cir. 1981); Erik V. v. Causby, 977 F. Supp. 384, 389-90 (E.D.N.C. 1997); Crump v. Gilmer Indep. Sch. Dist., 797 F. Supp. 552, 555-56 (E.D. Tex. 1992); Black?s Law Dictionary 1203 (6th ed. 1990).

Significantly disproportionate - when statistical analysis shows that the success rate of members of an identified group is significantly lower than would be expected from random distribution within the appropriate qualified pool, the test in question is said to have a disproportionate adverse impact. There is no set formula to determine when a sufficient level of adverse impact has been reached; the Supreme Court has stated that statistical disparities must be sufficiently substantial that they raise an inference of causation. Courts have advanced percentage disparities, standard deviations or other statistical formulae to address this component. Disparate impact itself does not necessarily mean that discrimination has taken place, but it does trigger an inquiry regarding the educational justification of the challenged practice. See Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994-95 (1988); Groves v. Alabama State Bd. of Educ., 776 F. Supp. 1518, 1529-32 (M.D. Ala. 1991); Richardson v. Lamar County Bd. of Educ., 729 F. Supp. 806, 815-16 (M.D. Ala. 1989), aff?d, 935 F.2d 1240 (11th Cir. 1991).

Statutory rights - rights protected by statute, as opposed to constitutional rights, which are protected by the Constitution.

Substantive due process - often stated as ?fundamental fairness.? In an education context, proof that students had not been taught the material on which they were tested might be a substantive due process violation. Some courts have held that students have the equivalent of a property or liberty interest in graduating or being promoted according to the expectations given them. See Debra P. v. Turlington, 644 F.2d 397 (5th Cir. 1981); Crump v. Gilmer Indep. Sch. Dist., 797 F. Supp. 552, 555-56 (E.D. Tex. 1992); Black?s Law Dictionary 1429 (6th ed. 1990).

Unitary system - a desegregated school system. The Supreme Court has held that all previously intentionally segregated school systems are required to become unitary systems. Although the term has been interpreted in different ways by different courts, a ?unitary system? is typically one in which all vestiges of past discrimination and segregated practices have been eliminated. See Freeman v. Pitts, 506 U.S. 467, 486-89 (1992); Board of Educ. v. Dowell, 498 U.S. 237, 243-46, 249-51 (1991); Keyes v. School Dist. No. 1, 413 U.S. 189, 208, 257-58 (1973); Georgia State Conf. of Branches of NAACP v. Georgia, 775 F.2d 1403, 1413-16 (11th Cir. 1985); Bester v. Tuscaloosa City Bd. of Educ., 722 F.2d 1514, 1517 (11th Cir. 1984); Debra P. v. Turlington, 474 F. Supp. 244, 249-57 (M.D. Fla. 1979) aff?d in part and vacated in part, 644 F.2d 397 (5th Cir. 1981).

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