IV

PROPOSED SOLUTIONS TO THE QUESTION OF TESTING

The possibility of a successful constitutional attack on psychological testing in a court action appears to be a real possibility in the near future. The testimony received by the Constitutional Rights Subcommittee shows that existing procedures for psychiatric evaluations and psychological testing are deficient in terms of protection of employee rights.

The necessity for a court test, however, could be eliminated by changes in the current testing practices and procedures used by the Government. Various alterations in the present situation were suggested to the Subcommittee. One solution to at least part of the problem is to afford the employee, and perhaps the applicant, an effective means of challenging the psychological reports and the expertise of the psychologist. At the present time no such procedures are available. For example, the Committee on Standards for Government Employment of the District of Columbia Bar Association, reporting on a study of disability separation procedures, found that an employee has no effective legal recourse to an involuntary disability retirement which he feels is unwarranted.174 This is in sharp contrast to the means provided by Congress for armed forces personnel to challenge adverse retirement actions-which means include a full hearing and the right to counsel.175 It was recommended that such a system of hearing procedures be established for federal employees. Until such legislation becomes a reality, the Subcommittee was told, "a serious void, with irreparable ad

74 "Among other things, the employee is exposed to the threat of disciplinary action if he does not comply with an order issued to report for a medical examination to determine his fitness or alleged unfitness for duty-an action which can be initiated by a layman. The employee has no means of effectively inquiring into the basis for the initial determination that he is unfit. The employee has no right to inquire into the medical qualifications of the medical examiner. He has no right to ascertain the adequacy of the evidence utilized in effecting his separation for disability. The employee has no forum to present medical evidence in his own behalf." Hearings Transcript 544 (statement of Byron N. Scott, Chairman, Comm. on Standards for Gov't Employment, D.C. Bar Ass'n).

176 Congress has specifically provided that "no member of the armed forces may be retired or separated for physical disability without a full and fair hearing if he demands it." 10 U.S.C. § 1214 (1964).

For an analysis of the safeguards afforded the individual in administrative discharge action by the military, see Everett, Military Administrative Discharges-The Pendulum Swings, 1966 DUKE L.J. 41.

verse consequences to the individual, will continue to exist with regard to the Constitutional rights of the federal employee . . . .”176 The American Psychological Association holds the view that Congress may prescribe the roles and functions of psychologists in the federal government, but that it should not dictate the methods and procedures for carrying out these functions. Therefore, the Association proposes a type of professional autonomy for this group of specialists within the bureaucracy. However, the Association did offer several suggestions for safeguarding the rights of individuals subject to psychological assessment procedures.177

Another possibility is a severe limitation upon the circumstances in which testing might be used.178 A parallel could be drawn to Cole v. Young179 in which the Supreme Court limited the application of certain summary dismissal procedures to personnel intimately connected with the "national security."180 Because of the individual interest in privacy, psychological testing might be held-by legislation or judicial decision—to be justified only when this interest is outweighed by the actual presence of a genuine “national security” issue.

In the final analysis, a thorough-going reform of existing procedures relating to psychological testing is a matter which must be confronted by Congress. Congress must decide whether, in light of the evolving law surrounding the right of privacy and the employment

170 Hearings Transcript 545 (statement of Mr. Scott).

177 Hearings Transcript 147-49 (statement of Dr. Arthur H. Brayfield, Executive Director, American Psychological Ass'n). The Association proposed the following: Government should "1. Insure that all non-research test use and psychological assessment such as is not under the direct cognizance, or administration, of the Civil Service Commission [such as in the Peace Corps] should be under the direction of highly qualified staff psychologists directly responsible to operating or line administrators. 2. Maintain a review or appeal procedure for personnel decisions in which psychological test data and psychological assessment have had an important part, perhaps with the possible use of an outside panel composed in part of psychologists. 3. Establish an Interagency Committee on Assessment composed of representative agency psychologists... [to] share experiences and formulate guidelines . . . . 4. Establish an Advisory Panel to such an Interagency Committee, composed of recognized psychologists from outside government to periodically review agency assessment procedures and programs and to assist the Interagency Committee in its activities. 5. Establish a Task Force under contract with the National Academy of SciencesNational Research Council . . . to survey and evaluate current agency assessment procedures and practices and to make recommendations." Id. at 147-48.

178 Of course, it might be concluded that the validity and reliability of psychological tests are such that they should be abandoned completely by the Government. See part II F of this article.

17 351 U.S. 536 (1956).

100 See note 32 supra and accompanying text.

relationship, a government employee's rights are inferior to those of any other citizen. Congressional hearings on testing have pointed the way to solutions. They have, from all indications, also initiated a much-needed dialogue between lawyers and others concerned with individual rights and the scientists, technicians, and professional medical men responsible for the new scientific instruments and devices. In the private sector, observance of the individual's rights will depend to a very great extent upon the intensity and continuity of that debate. However, insofar as a citizen's relations with his Government are concerned, Congress has it within its power to insure that individual rights and liberties are not seconded to technology.

THE IMPACT OF TECHNOLOGY ON PRIVACY: THE DEBATE OVER PSYCHOLOGICAL TESTING

(Invited address to the American Psychological Association, by Alan F. Westin, professor of publication and government, Columbia University, September 2, 1966, Waldorf-Astoria Hotel, New York City.)

Though personality testing has long been a controversial facet of psychological measurement, the past few years have seen a sharp rise in political and intellectual criticism of personality testing for personnel selection. Those reading or hearing this paper are no doubt familiar with the books of William H. Whyte, Jr., Martin Gross, and Vance Packard; the Congressional hearings of 1965,' and the recent wave of articles in the popular and scholarly press debating the merits of personality testing.

While this debate has proceeded on several levels simultaneously, ranging from dispute over the scientific predictability of personality testing to the ethics of psychologists who work for institutional clients, the growing core of the debate has become the issue of personal privacy. Increasingly, the psychological profession has seen itself attacked by leading spokesmen from the legal profession and the legislative community on the ground that personality tests represent an improper invasion of privacy in a free society. To these charges, psychological spokesmen have responded that personality tests do not invade privacy more than other currently used techniques of personnel evaluation (such as oral interviews, reference checks, and personnel investigations); that persons who apply for employment with public or private institutions have to give up their personal privacy to a reasonable extent to assure proper selection and promotion decisions; and that the overwhelming majority of persons applying for jobs in American society do not find such testing a violation of their privacy. Psychologists have also defended specific questions about sex, religion, and politics in pencil-and-paper tests and the discussion of such themes in projective tests as not violating civil liberty guarantees against governmental or private-employer inquiries into personal ideology; the argument is made that it is not the specific answers to these inquiries that the tests seek but simply a means of comparing the profile of the subject with previously determined scales measuring various personality traits and tendencies. Finally, psychologists have suggested to critics that the "right to privacy" is a very difficult term to define, and while psychologists have not defined this for the purpose of setting standards for proper and improper personnel selection through personality testing, neither have critics from law, legislatures, or the social sciences provided any clear and precise definitions of privacy to use as norms for psychologists in a disputed area such as personality testing.

For the past four years, the Special Committee on Science and Law of the Association of the Bar of the City of New York has been conducting a study of "The Impact of Technology on Privacy". The study ranges from physical surveillance techniques of listening to and watching individuals to data surveillance techniques for providing documentary monitors on individuals and groups to the field of psychological surveillance, which includes polygraphs, personality testing, subliminal suggestion, drug interrogation, and brain wave analysis. The purpose of the Committee's work has been to identify the present and foreseeable effects of new surveillance technology and its adoption by private and public authorities on the traditional balance in American society among the values of privacy, disclosure, and surveillance. Early in 1967, a book will be published by this writer entitled, "Science, Privacy, and Freedom”, one of the major publications to emerge from the Committee's work. One topic treated at length in the book is that of personality testing. In one chapter. there is a detailed account of the spread of personality testing from use in clinical counseling and research situations into personnel selection by industry,

1 U.S. Senate, Subcommittee on Constitutional Rights, Judiciary Committee (Ervin Committee), 1965; U.S. House of Representatives, Special Subcommittee on Invasions of Privacy, Government Operations Committee (Gallagher Committee), 1965.

2 See, for example, James Ridgeway, "The Snoops: Private Lives and Public Service". New Republic, December 19. 1964, 13-17; Joan Zola, "Adventures of a Test Taker". National Review, January 12, 1965, 22-23; Roger Ricklefs, "Jobs and Psychology: Personnel Tests Win Widening Business Use Though Critics Fume", Wall Street Journal, February 9, 1965; The Attack on Invasion of Employee's Privacy", Industrial Relations News, Special Report, April, 1965.

government, and other private institutions. This chapter includes a survey of personality testing at the state governmental level (based on the responses from the Civil Service Commissions of eleven states, one territory, and four municipalities); a survey of federal practices in the main federal agencies as well as others such as the Department of State, Department of Defense, Peace Corps and the Job Corps; and a survey of 208 industrial organizations of diverse size, type, and location throughout the United States. A second chapter on personality testing describes the debates over the use of the tests by industry, government, and in the schools between 1945 and the present. The main lines of criticism from both intra-professional and outside critical sources are fully presented and analyzed to explain the growing centrality of privacy to the protests of the DAR and the ACLU alike. A third chapter, dealing with policy recommendations across the entire spectrum of issues raised by the use of new surveillance techniques in American society, includes a section on recommendations covering psychological surveillance methods such as personality testing, polygraphs, and narco-analysis. Since the material is quite extensive and is not easily summarized, it seemed to me that the most useful firmly the use of personality testing in this field. Thus, I will put to one side all issues about the scientific predictability of personailty testing; the questions function that might be performed at a convention of the American Psychological Association would be to focus on the main point that seems to be the heart of the controversy beween those psychologists defending the use of personality testing for personnel selection (with whatever qualifications and reservations that surely divide as diverse a profession as this) and those critics who reject of ethics raised by the psychologists representing an institution and not the individual that he tests; and any questions of law as to whether such testing violates constitutional, statutory, or administrative rules at the state or federal level. My concern will be the question of whether there is any genuine issue of privacy raised by large-scale use of personality testing by public and private authorities for personnel purposes.

Let me make as clear as I can, at the outset, that no profession has done more to illuminate man's psychological condition and his need for humane values such as privacy than the scholars and scientists working in the field of psychology and psychiatry. Let me also state unequivocally that the commitment of psychologists as a group to civil liberties principles seems to me far above that of any other professions and groups in American life and the activities of psychologists in civil rights and civil liberties movements testifies to this commitment. Thus it is partcularly ironic that the psychological profession as a whole should find itself so much on the defensive with civil libertarians, legislators, and the press as it has been during the 1960's on this issue of personality testing. There are those who might suggest that a separate wing of as large and de-centralized a profession as psychology are the ones who are defending personality testing for personnel selection and that the overwhelming majority of psychologists share the concern over privacy and disapprove of the test-psychologist's activity in the personnel field. However, no one who has worked carefully through the literature on personality testing for personnel selection or who knows the patterns of participation by leading academic and consulting psychologists in this activity would make such a sharp division. The fact is that, at least until recently, critics of personality testing for personnel selection were a distinct minority within the psychological profession and were able to express little influence or control over the spread of personality testing on a large scale in industry, school, and government circles. It should also be noted that the Special Committee on Science and Law of the Association of the Bar of the City of New York found it to be almost a universal rule that each profession whose adoption of new surveillance technology or processes was called into question was thoroughly convinced that its good intentions and concern for those it was putting under surveillance made its use of the new technique acceptable. Thus, many lawyers responding to our Committee's concern over the use of recording devices and eavesdropping detectives by law firms commented that this was justifiable or necessary in the practice of law. Behavioral scientists conducting physical surveillance of student or volunteer subjects, whether in schools or in experiments involving adults, defended their intrusions into personal privacy with the comment thatbecause science is being served and "no one is being hurt"-there is really no issue of privacy here. Members of federal executive agencies, often lawyers or professors with strong civil liberties orientations, would defend the use of polygraphs for screening government employees on the ground that questioning 71-994 0-67-56