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Judges' Comments Support Testing of Florida Seniors

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The U.S. Fifth Circuit Court of Appeals earlier this month denied a petition asking it to re-hear the case of Debra P. v. Turlington--a class-action suit contesting the state's use of minimum-competency testing as a requirement for high school graduation.

And as the court issued its ruling, three judges on the panel released accompanying comments that are being interpreted by educators in Florida as a victory for advocates of minimum-competency exams. The commentaries may also be an important signal for other states watching the progress of the case, which is the first important challenge nationwide to the use of student minimum-competency tests in public schools.

Although the ruling did not change the substance of previous federal-court rulings on the case, the accompanying comments did clarify a decision by a three-judge panel of that court last May, which returned the case to the Federal District Court in Tampa for further review. In clarifying its earlier ruling, the judges who served on that appeals-court panel said this month that "the State of Florida may utilize a functional literacy exam both for remedial purposes and as a condition for the awarding of a diploma."

In refusing to re-hear the case, the court this month supported the May decision that the state may not make the competency tests a requirement for graduation from high school until the 1982-83 year. The latest appeals-court decision also keeps in force the May ruling that the state must provide additional proof that the test is fair.

The state's testing law was passed in 1976, requiring high school seniors, beginning in 1977, to pass a literacy examination in order to graduate. A year later, a suit was brought on behalf of 10 black students (Debra P. v. Turlington) who failed the examination.

Discriminatory and Biased

Their Tampa Bay Legal Services attorneys argued that the tests were discriminatory and biased because the students attended segregated schools in their early years and thus did not receive an adequate education.

The case was heard in a federal district court in 1979. That court accepted the validity of minimum-competency testing for graduation but ruled that the tests could not be administered until 1982-83 when all students who once attended segregated schools had left the system.

Last May, a three-judge panel of the Fifth Circuit Court of Appeals upheld the district court's ruling, and ordered it to require the state to provide further proof that the tests are fair and that they cover materials being taught in the schools. The appeals court said: "The state administered a test that was, at least on the record before us, fundamentally unfair in that it may have covered matters not taught in the schools of the state."

The May ruling, according to educators in Florida, led to some misunderstanding about the court's intention. Thomas A. Fisher, administrator of the student-assessment division of the Florida Department of Education, says that some people wrongly interpreted the federal court's decision as "simply barring minimum-competency exams."

It was this misunderstanding, in addition to concern that the May ruling weakened educational standards and interfered with state power, that prompted the petition for a rehearing of the case, say observers. The re-hearing was sought by an unidentified judge who sits on the fifth-circuit appeals court.

Because the case is the first major court challenge to minimum-competency testing, its progress is being watched closely by the 38 states that have some form of minimum-competency requirements for public-school students. Several states, according to Mr. Fisher, including Tennessee and Illinois, have delayed using competency tests as a requirement for graduation because of fear of protracted litigation.

"We interpret this as a positive decision for other states that want to have minimum-competency exams," said Louise Beauchamp, a public information officer with the Florida Department of Education.

In the view of both state education officials and the lawyer representing Florida's school-children in the class-action suit over the tests, the issue still very much in question is the fairness of the current test--not the use of competency tests as such.

"We were never against the idea of functional literacy exams," says attorney Robert Shapiro, formerly with the federally funded Tampa Bay Legal Services and now in private practice. "We're just saying that the tests shouldn't be administered if they are unconstitutional. The school system cannot be permitted to punish the victims of its own past discrimination."

State officials are confident they will be able to prove in the district court that the current test covers material taught in the schools.

"We want to be fair," says Ralph Turlington, the state's commissioner of education, "and we've got no problem with the question of having a fair test."

Ms. Beauchamp noted that when the literacy test was first given in October 1977, 63 percent of the 116,000 11th-grade students tested passed the test, but more than three out of four blacks failed. (One out of four whites failed.) Since then, both blacks and whites have done better. Last year 48 percent of the black students passed and 86 percent of the white students passed.

A.L.

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