Special education and high stakes testing for high school graduation: An analysis of current law and policy

Journal of Law and Education, Apr 2001 by O'Neill, Paul T

GRADUATION TESTING IN THE COURTS

While the recent proliferation of state-mandated high stakes exit exams is unusual, states have imposed such tests for decades, and courts have had numerous occasions to pass on the validity of testing tied to high school graduation and promotion. Suits challenging state testing regimes have most often been grounded on the Due Process Clause and the Equal Protection Clause of the 1411 Amendment. Suits involving special education issues have also relied on Section 504 and IDEA. What follows is an account of significant case law drawing on each of these areas, which should provide precedent for and insight into the ways that courts will approach such claims in the future.

1. Due Process Claims

the government abused its power in acting to restrict it. In making this determination, courts consider the interests and the value of the procedures available.47 The Due Process Clause offers procedural safeguards to protected interests and provides protection for substantive aspects of liberty against impermissible governmental restrictions.48 Procedural due process guarantees that a state proceeding which results in the deprivation of property or liberty must be fair, while substantive due process insures that such state action is not arbitrary and capricious.49 Each of these aspects of due process will be dealt with in turn below. While they represent separate analyses, these aspects tend to blend in application.

Courts have often been reluctant to second-guess the discretion of public school officials with regard to evaluation of the academic performance of their students,50 "but judicial intervention in school affairs regularly occurs when a governmental educational institution acts to deprive an individual of a significant interest in either liberty or property."51 Indeed, the Supreme Court has consistently upheld the rights of students in the face of improper actions by schools, holding that young people "do not shed their constitutional rights at the schoolhouse door."52

A. Procedural Due Process Claims

Under the Due Process Clause, individuals are entitled to adequate notice and opportunity to be heard before being deprived by the government of their constitutionally recognized interest in liberty or property." Graduation testing implicates both interests.

(i) Property (entitlement)

entitlement to a public education as a property interest which is protected by the Due Process Clause . . .`55

One of the seminal cases laying the groundwork for the ways in which courts might assess high stakes exams, Debra P v. Turlington,56 was predicated in large part on a finding that a testing program was implemented in such a way as to deprive a student of her property interests without Due Process. There, the Fifth Circuit Court of Appeals found unconstitutional a Florida law requiring students to pass a statewide minimum competency test in order to receive a diploma. It found that the state's compulsory education law and student education program gave children a constitutionally-protected expectation that they would receive a high school diploma if they successfully completed high school.57 This property interest, it said, effectively prevented the state from imposing new criteria without adequate notice and sufficient educational opportunities to prepare for such tests. Notice allows children to prepare for the tests, allows school districts time to develop and implement the tests, and allows schools the chance to correct any deficiencies in the test and to set a passing score. The court in Debra P. was persuaded by expert evidence indicating that at least four to six years of preparation time is required in order for children to adequately prepare for a high stakes exam.58