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Seventh Circuit Rules Favorably Regarding Use of Banding

David W. Arnold
Reid London House

On May 3, 2001 the 7th U.S. Circuit Court of Appeals held that treating employment examination scores within a certain range as identical does not violate Section 106 of the Civil Rights Act of 1991. See Chicago Firefighters Local 2, et al. v. City of Chicago, et al. Nos. 00-1272, 00-1312, 00-1313, 00-1314 and 00-1330.

According to the Civil Rights Act of 1991 (CRA), it is an unlawful employment practice to adjust the scores of, use different cutoff scores for, or otherwise alter the results of employment-related tests on the basis of race, color, religion, sex, or national origin. In the above-referenced case, a White firefighter alleged that the City of Chicagos use of banding constituted a violation of this provision of the CRA.

While the 7th Circuit panel acknowledged that the use of banding has been upheld as an acceptable professional practice in a variety of cases (e.g., Boston Police Superior Officers Federation v. City of Boston, 147 F.3d 13, 24 (1st Cir. 1998), Officers for Justice v. Civil Service Commission, 979 F.2d 721 (9th Cir. 1992), the court emphasized that whether banding constitutes unlawful race norming is one of first impression.

The opinions initial comment regarding the issue indicated that the court had no doubt that if banding were adopted in order to make lower Black scores seem higher, it would indeed be a form of race norming, and therefore be forbidden. However, the court stated that banding is not race norming per se. In its opinion, the court recognized that banding is a universal and normally unquestioned means of simplifying scores by eliminating meaningless gradations. Any school that switches from number grades to letter grades is engaged in banding. In fact, the court opined that even number grading systems are commonly banded. For instance, if an examination contained 200 items, an individual answering 199 items correctly might commonly receive a score of 99%the individual has been place in a band. In essence, the court recognized that making distinctions in examination scores can sometimes be misleading rather than illuminating.

While the 7th Circuit held that in this particular case the City of Chicagos use of test score banding did not constitute unlawful race norming, it is important to note that banding is not lawful per se. Arguably, the practice is best legitimized from the perspective that it aids in the interpretation of test data and is appropriate from a scientific (e.g., measurement error) and/or common sense perspective. 

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