Parents in Action on Special Ed.(Pase) v. Hannon

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 Vio 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.

The EMH curriculum is designed for the child who cannot benefit from the regular curriculum. It is designed for children who learn slowly, who have short attention spans, slow reaction time and difficulty retaining material in both the short term and the long term. The curriculum also recognizes the difficulty an EMH child has in *834 seeing similarities and differences, in learning by implication, in generalizing and in thinking abstractly. The curriculum thus involves much repetition and concrete teaching. Subjects are taught for short periods of time, in recognition of the children’s short attention spans. The subject matter of the EMH courses is oriented toward socialization, language skills and vocational training. Academic subjects are taught, but on an elementary level and with the objective of helping the child become economically independent. The assumption of the EMH curriculum is that the child will not go on to college, and, in fact, children who graduate from EMH programs in the Chicago school system are given special diplomas which do not qualify them for college entrance.

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. 1 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.

The case was tried to the court over a period of three weeks in January 1980. Each side presented a number of expert witnesses, mostly psychologists and educa *835 tors. Each side also offered a large volume of reading material, including a number of articles in psychological and education journals. At the conclusion of the testimony, I recessed to examine this voluminous material prior to final arguments. During the recess, the United States Department of Justice filed a motion for leave to file an amicus curiae brief and to participate in oral argument. Defendants objected to the motion, pointing out that the case had been pending for six years and that the Department of Justice had at all times been aware of it. The objection was overruled and the Department did file a brief and participate in the oral argument, which took place on March 11, 1980. The government sided with the plaintiffs on all issues.

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. 2

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.

The question remains, what does the IQ score measure? Dr. Leon J. Kamin, a psychologist from Princeton University, testified for plaintiffs that the IQ tests measure *836 “current performance.” Dr. Kamin is the country’s leading exponent of the view that the tests measure nothing innate. He writes and lectures extensively on the subject. He testified that in his opinion differences in performance on the tests are due solely to differences in exposure to “information” called for by the tests.

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 Ijer 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. 3

*837 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 cor *838 rectly. 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.

*839 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. 6V2 in. or 5 ft. IIV2 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 *840 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 wear *841 ing 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.

*842 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 *843 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 báck 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 lk less. When no one bought it, the store owner reduced the sale price by lh. 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.

*844 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 . . .1 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 *845 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