Teachers, Math Tests, and Racism? Ontario Teacher Candidates’ Council v Ontario

In Ontario Teacher Candidates’ Council v Ontario (Education), 2023 ONCA 788 [OTCC], the Ontario Court of Appeal (“ONCA”) overturned a Divisional Court decision deeming Ontario’s Math Proficiency Test (“MPT”), aimed at incoming teaching candidates, constitutional and not contrary to s 15 of the Canadian Charter of Rights and Freedoms (“Charter”). 

Facts 

In order to teach at a public elementary or secondary school, teachers must be accredited through the Ontario College of Teachers, who require candidates to complete a three- or four-year undergraduate degree, followed by a two-year Bachelor of Education. All accredited teachers can be assigned to teach math to students in Grade 6 or below. To teach math to students above Grade 6, additional qualifications are generally required. There are exceptions set out under the Ontario College of Teachers Act (OCTA) that permit a principal to assign a teacher to a subject not listed on their certificate. To do so, agreement of the teacher and approval of a supervisory officer are required. Given the competitive nature of teaching positions, newly accredited teachers will often agree to teach subjects outside their certificate, so many teachers without math qualifications teach math to students in Grades 7 to 12 (OTCC, paras 14-15). 

Between 2015 and 2019, there was a marked decline in Ontario students’ math scores, as measured by the Education Quality and Accountability Office (EQAO). In response, in 2019, Ontario amended the OCTA to require all candidates obtaining teaching accreditation to complete math examinations (OTCC, para 16). Notably, candidates are given an unlimited number of attempts to pass the examination (OTCC, para 25). This MPT was to be developed and implemented by the EQAO (OTCC, para 17).

To develop the MPT, the EQAO undertook a literature review investigating the connection between compulsory teacher competency testing and student outcomes (OTCC, para 17). They found that standardized tests such as the MPT could have negative impacts on racialized groups (OTCC, para 17). The EQAO field tested a draft version of the MPT, which included a voluntary demographic questionnaire to monitor results for racialized groups. Of the 4,065 teacher candidates who participated in the field test, 81% were successful (OTCC, para 20).

After this field test, the MPT was officially administered in May to August and September to December of 2021 (OTCC, para 21). The test was available in English or French and candidates at any stage of their Bachelor of Education program could write the three-hour test. Notably, the test was designed to be completed in two hours. The MPT itself was computer-based and composed of 75 multiple-choice questions, with two thirds of the test focused on mathematics and one third focused on math pedagogy (OTCC, para 22-23). A successful candidate was required to achieve a score of 70% on both the math and pedagogy portions. The College was only informed of the results if a candidate successfully completed the test. 

The results were as follows: a total of 8,349 candidates wrote the MPT, 6,948 candidates were successful on their first attempt, of the 1,401 candidates who were unsuccessful on their first attempt, 1,100 retook the test and 969 were subsequently successful. In sum, out of the 8,349 candidates, 7,917 (94.85%) were successful while 432 (5.2%) were unsuccessful (OTCC, para 28). The demographic analysis indicated that non-racialized candidates had a success rate of 97.3%, whereas racialized candidates had a success rate of 93.3% (OTCC, para 31). The EQAO noted that this data could not be fully extrapolated since there were very small numbers of test takers from certain racialized demographic groups (OTCC, para 32). 

Judicial History

The Divisional Court found that the MPT had a disproportionate adverse impact on racialized teaching candidates, and that there were alternatives to the MPT available to the government that were less infringing of the Charter. 

This ruling was made based on the quantitative, expert, and qualitative evidence before the court. With regards to quantitative evidence, the Divisional Court only had access to the data up to July 2021, which included the field test with 81% success rate, and a portion of the first window of administration, which had a 87% success rate (OTCC, para 34). Though results from candidates who provided demographic information reflected disparities between the success rates of different racial groups, the EQAO cautioned that such disparities need to be interpreted in light of the small sample size from certain demographic groups, specifically Indigenous and Latinx (OTCC, para 35). With regards to expert evidence, they relied on reports from two sources: first,  the OTCC, who advised that such testing has a detrimental effect on racial diversity within the profession (OTCC, para 39); and second, Ontario, who advised that the MPT encourages candidates to acquire necessary math knowledge to the benefit of students  (OTCC, paras 43-46).  With regards to qualitative evidence, the Divisional Court heard testimony from a current Bachelor of Education candidate who expressed various concerns with the MPT, but went on to pass after three attempts (OTCC, paras 48-51, 78). 

To evaluate whether the MPT infringes s 15 of the Charter, the Divisional Court relied on Fraser v Canada (Attorney General), 2020 SCC 28 [Fraser], which requires s 15 applicants to show that a  law or state action: (1) on its face or in its impact creates a distinction based on enumerated or analogous grounds; and (2) imposes burdens or denies benefits in a manner that has the effect of reinforcing, exacerbating, or perpetuating disadvantage (OTCC, para 53). 

Under the first prong of the inquiry, the Divisional Court noted the significant disparities in success rates for racialized candidates in comparison to non-racialized candidates, finding additionally that requiring unsuccessful candidates to retake the test multiple times imposes additional burdens of time, money and energy which is again disproportionately experienced by racialized candidates (OTCC, para 55-56). Under the second inquiry, the Divisional Court found that the lower pass rate for racialized candidates means fewer racialized teachers which perpetuates the MPT’s adverse impacts (OTCC, para 60). Moreover, while the Court acknowledged that the available data on the impact of the MPT is somewhat limited, they rejected the notion that further time is required to assess an adverse impact on racialized candidates (OTCC, para 58). 

This breach of s 15 was not saved under s 1 of the Charter: though the Divisional Court found the objective of improving student math achievement is pressing and substantial, and that the MPT is rationally connected to that purpose, they found the mandating of math courses in a Bachelor of Education program to be a more effective measure in achieving Ontario’s objective in a manner less impairing of equality rights (OTCC, para 61). Following my colleague’s appeal watch article, the ONCA decision has now been released.

Issues on Appeal 

There were two issues on appeal before the ONCA: (1) did the Divisional Court err in finding a breach of s 15 of the Charter at either step of the injury; and (2) did the Divisional Court err in holding that such a breach is not justifiable under s 1 of the Charter? 

Decision 

With regards to the first issue, ONCA ruled that the Divisional Court erred in their finding that the MPT has a disproportionate adverse impact on entry to the profession for racialized teacher candidates. Specifically, ONCA noted that the Divisional Court’s reliance on results from the first seven weeks of administration–data which was incomplete and preliminary–provided an insufficient basis for a breach of s 15 (OTCC, para 70). 

Before delving into the Fraser inquiry, ONCA explored whether this case engages s 15 to begin with. They began by addressing the nature of the data, finding that by July 2021, less than half of the eventual test-takers had written the MPT. Moreover, they noted that not all of those who did write the test by July 2021 had completed the voluntary demographic questionnaire (OTCC, para 71). Thus, ONCA concluded that the Divisional Court erred in finding that MPT has a disproportionate adverse impact on racialized candidates (OTCC, para 77). Having not met this threshold component, ONCA found that the MPT does not violate s 15 of the Charter. 

Nevertheless, moving onto the first prong of the Fraser inquiry, ONCA found that the complete dataset–meaning results from the field test in addition to the complete first and second window–still does not establish that the MPT has a disproportionate adverse impact on racialized candidates (OTCC, para 82). This dataset demonstrated that the disparities between racialized and non-racialized candidates did not rise to the level of “clear and consistent statistical disparities in how a law affects the claimant’s group” as required in Fraser (OTCC para 88, citing Fraser para 63). Additionally, the Court of Appeal found that having to rewrite the test does not amount to an adverse impact: there is no delay for entry into the profession for unsuccessful candidates since they have the opportunity to write the test at any point prior to graduating from their two-year Bachelor of Education program (OTCC, para 78). 

Moving onto the second prong, ONCA again found that the MPT does not reinforce, perpetuate, or exacerbate disadvantage (OTCC, para 98). The Court of Appeal noted that the MPT’s questions are based on EQAO exams administered to Ontario students in Grades 3, 6, and 9, so any individual with a high school level education in Ontario would be reasonably expected to succeed (OTCC, para 101). Other aspects of the MPT, namely, the frequent administration, option to re-take, and informing the College only when a candidate is successful, take into account candidates who may not pass on their first attempt (OTCC, para 100-101). Not having met either prongs of the s 15 inquiry, ONCA concludes that the MPT does not infringe s 15 and thus does not engage with s 1. 

Analysis 

Establishing “Clear and Consistent Statistical Disparities” 

A finer point within the ONCA’s decision is their clarification on what constitutes statistical disparities as established in Fraser. Although they recognize there is “no universal measure for what level of statistical disparity is necessary to demonstrate disproportionate impact” (OTCC, para 54) in dismissing the OTCC’s claim–which relies on a 3% difference in success rate between racialized and non-racialized candidates– ONCA provides important guidance on the bounds and limits of statistical disparity. This is crucial guidance on the application of the Fraser inquiry, specifically for the first prong. It will without a doubt result in important precedent for future s 15 cases. 

The Problem with Standardized Tests? 

In a more abstract sense, this case was also a manifestation of the ongoing problems with standardized tests. The expert evidence presented at the Divisional Court hearing involved reports from both the OTCC and Ontario which spoke to the value of standardized tests and their potential adverse effects. The OTCC relied on a report from Dr. Mary Reid of the Ontario Institute for Studies in Education (OTCC, para 38). Although she did not review the MPT, she assumed, like other teacher certification tests employed in the US and UK, that such “high-stakes teacher testing” has detrimental effects on racial diversity within the teacher population (OTCC, para 39). Conversely, Ontario relied on a report from Dr. Ann Kajander, an expert in math pedagogy (OTCC, para 43). She found that teachers who have a better understanding of math are more effective math teachers, which in turn, results in better student performance (OTCC, para 43).

This dialogue is a manifestation of the recent debate surrounding the utility of standardized testing more broadly. For example, the American Bar Association (ABA) has voted to end law schools’ LSAT requirement starting in 2025 in an attempt to diversify the legal profession. This was following their decision in November 2021 to add the GRE as an alternative. The LSAT itself has undergone many changes over the past few years, with the most recent change involving removal of the logic games sections to increase accessibility. 

Every profession, not just teachers, are grappling with standardized tests. My concern, with both the Divisional Court’s decision and the more general trend of abandoning standardized tests, is the lack of a replacement. While organizations like the OTCC or ABA want to leave a gap for innovation for their colleges and boards, such innovation does not necessarily breed more diversity. Standardized tests are utilized particularly for their ability to capture meritocracy and reward competence, so their elimination may mean less not more diversity. 

Conclusion 

The ONCA overturned the Divisional Court’s ruling in OTCC, finding that the MPT proposed by Ontario to address poor student performance on the EQAO does not violate teaching candidates’ rights under s 15 of the Charter. In making their finding, the Court of Appeal relied on the full dataset from two windows of MPT administration to rule that the performance disparities between racialized and non-racialized groups does not rise to the level of a Charter violation as set out in Fraser. Nevertheless, debate surrounding the utility of standardized tests across all professions is sure to continue.

This article was edited by Ariel Noemi Montana.