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CHAPTER 12 Legal Issues and the Future of Testing

TOPIC 12A Psychological Testing and the Law

12.1 The Sources and Nature of Law (http://content.thuzelearning.com/books/Gregory.8055.17.1/sections/ch12lev1sec1#ch12lev1sec1)

12.2 Testing in School Systems and the Law (http://content.thuzelearning.com/books/Gregory.8055.17.1/sections/ch12lev1sec2#ch12lev1sec2)

12.3 Disability Assessment and the Law (http://content.thuzelearning.com/books/Gregory.8055.17.1/sections/ch12lev1sec3#ch12lev1sec3)

12.14 Legal Issues in Employment Testing (http://content.thuzelearning.com/books/Gregory.8055.17.1/sections/ch12lev1sec4#ch12lev1sec4)

Case Exhibit 12.1 (http://content.thuzelearning.com/books/Gregory.8055.17.1/sections/ch12lev1sec4#ch12box2) Unwise Testing Practices in Employee Screening (http://content.thuzelearning.com/books/Gregory.8055.17.1/sections/ch12lev1sec4#ch12box2)

12.5 Forensic Applications of Assessment (http://content.thuzelearning.com/books/Gregory.8055.17.1/sections/ch12lev1sec5#ch12lev1sec5)

In the previous chapters we have outlined the myriad of ways in which tests are used in decision making. Furthermore, we have established that psychological testing is not only pervasive, but it is also consequential. Test results matter. Test findings may warrant a passage to privilege. Conversely, test findings may sanction the denial of opportunity. For many reasons, then, it is appropriate to close the book with two special topics that bear upon the potential repercussions of psychological testing. In Topic 12A (http://content.thuzelearning.com/books/Gregory.8055.17.1/sections/ch12#ch12box1) , Psychological Testing and the Law, we review critical legal issues pertaining to the use of psychological tests. In this topic, we survey the essential laws that regulate the use of tests in a variety of settings—schools, employment situations, medical settings, to name just a few arenas in which the law constrains psychological testing. We also examine several ways that psychologists interface with the legal system in the field of forensic assessment. In Topic 12B (http://content.thuzelearning.com/books/Gregory.8055.17.1/sections/ch12lev1sec5#ch12box3) , Computerized Assessment and the Future of Testing, contemporary applications of the computer in psychological assessment are surveyed, and then the professional and social issues raised by this practice are discussed. The book closes with thoughts on the future of testing—which will be forged in large measure by increasingly sophisticated applications of computer technology but also greatly affected by legal standards.

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12.1 THE SOURCES AND NATURE OF LAW The law establishes a number of guidelines that define the permissible scope and applications of psychological testing. However, before investigating the key legal guidelines that impact testing, it will be helpful to understand the sources and nature of law. Broadly speaking, there are three sources of law: constitutional provisions, legislative edicts, and judicial opinions. We examine each briefly.

Constitutional Sources of Law The United States has a constitutional form of government, meaning that the U.S. Constitution is the final authority for all legal matters in the country. All other forms of law must be consistent with this seminal document. Thus, the Constitution places limits on legislative actions and judicial activity. The United States is also a federation of states, which means that each state retains its own government and system of laws, while ceding some powers to the central government. For example, the power to regulate interstate commerce and the responsibility to provide for the national defense both reside with the federal government. Each state has its own constitution as well, which is another source of laws that affects citizens living in a state. Of course, state constitutions cannot contradict the U.S. Constitution and, in most cases, they are highly similar to the federal document.

Three provisions of the U.S. Constitution potentially bear upon the practice of psychological testing: the Fifth, Sixth, and Fourteenth Amendments to the Constitution (Melton et al., 1998 (http://content.thuzelearning.com/books/Gregory.8055.17.1/sections/bm02#bm02bib1128) ). The Fifth Amendment provides a privilege against self-incrimination, which impacts the nature of psychological assessment in forensic evaluations. For example, as discussed previously, a forensic practitioner might be asked by the court to evaluate an alleged offender for competency to stand trial. In many states, self-incriminating disclosures made during an evaluation of competency to stand trial cannot be used to determine guilt (i.e., they are inadmissible as evidence during trial).

The Sixth Amendment states that every person accused of a crime has the right to counsel (i.e., the right to a lawyer). This is understood to mean both the presence of counsel during legal proceedings and also the right to effective assistance from counsel. Does this mean that counsel must be present during a pretrial assessment, such as a court- ordered evaluation for competency to stand trial? This will depend upon the state and jurisdiction in which the proceedings occur. Although most courts have held that the defendant does not have a right to the presence of counsel during pretrial psychological evaluations, a minority of courts have held that the Sixth Amendment guarantee does apply to such pretrial assessments (Melton et al., 1998 (http://content.thuzelearning.com/books/Gregory.8055.17.1/sections/bm02#bm02bib1128) ). In these jurisdictions, the defendant’s lawyer can be present during any psychological testing or evaluation. This raises difficult questions as to the validity of assessments undertaken in the presence of a third party. For example, what if the client asks his or her lawyer for advice on how to answer certain questions? Surely, this is not standard protocol in psychological assessment and might drastically affect the validity of the results. Fortunately, most courts favor alternative methods for protecting the rights of defendants during pretrial evaluations, such as tape-recording the session, having a defense psychologist observe the evaluation, or providing for an independent evaluation.

The Fourteenth Amendment provides that no state shall deprive any U.S. citizen of life, liberty, or property without “due process of law.” The amendment also specifies “equal protection of the laws.” The relevant section reads:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It is mainly the “due process” feature of this amendment that has impacted psychological practice. This influence is limited largely to forensic practitioners who deal with competency to stand trial, civil and criminal commitment, or the right to refuse treatment. For example, psychologists who are involved in the civil commitment of an individual who needs treatment typically must show—as a direct consequence of the due process clause of the Fourteenth Amendment—that several stringent criteria are fulfilled:

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