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

finding on testimony produced by the plaintiffs indicating that denial of their diplomas would have grave consequences for their "future life chances"62 and future employment opportunities, which the court found to represent a substantial deprivation of significant and protected property interests.63

The Debra P property rights analysis has not, however, been universally adopted by the courts. For example, in Bester v. Tuscaloosa,64 the Eleventh Circuit Court of Appeals held that a class of plaintiffs challenging a new reading standard designed to prevent social promotion from grade to grade had no protected property rights in the expectation that a former, lower standard would continue to be accepted as the threshold for academic promotion.65 Bester, it should be noted, did not involve a diploma requirement.

(ii) Liberty (notice)

Students have also been found to have a protected liberty interest in school settings and, in particular, to have a protected liberty interest in avoiding the sorts of damaging stigma and curtailed career opportunities that can result from the improper implementation of high stakes exams.

Similarly, in Ambach, the court found that there was a protected liberty interest at stake where diplomas were invalidated. "By stigmatizing an individual or imposing an obstacle which forecloses his freedom in pursuing employment opportunities, the State deprives a person of a liberty interest."61 The court noted that such stigma can have devastating effects, asking rhetorically: "Will [these children] be labeled as incompetent because of their failure to pass basic competency tests and thus considered unable to function in society?"69

Having identified such a deprivation, the court then addressed the question of what process was due, stating that "[i]n determining the applicable requirements the court balances the private interests of the petitioners, the risk of an improper deprivation of such interest and the governmental interest involved."70 After balancing these interests the court determined that potential harm to the petitioners outweighed all other concerns, especially since the school system had failed to provide timely notice of the new diploma requirement.71 In the court's estimation, students with handicaps were provided less than two years' notice that they would be required to pass the exit exam in order to receive a diploma. Since the educational program followed by these students focused on their IEP requirements and not on mastering the subjects covered by the test, and because the court was persuaded by expert testimony indicating that early notice of exam requirements is essential for children who need special help in developing their academic skills,72 it found that the notice period there was insufficient and that the diplomas should be validated. The court declined to "set a specific time period which would be adequate."73

ed only a year prior to the suit, and it replaced a substantially less rigorous one that had been given in the previous six years." In Mahavongsanan v. Hall," a masters degree student was found to have received ample notice that successful completion of a comprehensive examination was a requirement for graduation, even though the notice period lasted less than a year. In making its decision, the court pointed out that the student had had both an opportunity to retake the test and to complete additional coursework in lieu of passing the test. Similarly, in Anderson v. Banks,79 a notice period of slightly more than two years was found to be adequate for the imposition of a high stakes exam where there was ample opportunity for students to re-take the test and where remedial courses were also available.80