U.S. Judge Upholds Use Of 'Exit Tests' For Handicapped
Peoria, Ill.--Special-education students are not exempt from "minimal-competency" testing programs, and school districts can deny high-school diplomas to such students who fail the exam, a federal judge here has ruled.
Judge Robert D. Morgan of the Central District of Illinois upheld the right of the Peoria School District to give 11 graduating special-education students "certificates of program completion" rather than diplomas because of their failure to pass the district's competency test. All of the students have learning disabilities or other handicaps.
Judge Morgan reversed the administrative ruling of State Superintendent of Education Donald G. Gill, who had ordered the district to award diplomas to the 11 students on the basis that their constitutional right to due process had been violated.
In overturning Mr. Gill's position, the judge also rejected the plaintiffs' contention that the Peoria test is "scientifically invalid" and should be voided.
Scholars in education law have predicted that so-called "exit tests'' will be subject to an increasing number of legal challenges by handicapped students. No such case has yet been decided by a federal court of appeals, and a federal district court and a state court have differed on two previous cases.
A New York state-court judge found last year that handicapped students who had failed competency tests, but had completed their individual educational programs, were entitled to diplomas.
But in Georgia, also last year, a federal district judge found that the denial of a diploma to a student who fails the exit test does not necessarily violate federal law.
The issue debated in the Peoria case was first raised in 1980 when the school district implemented a policy adopted by the school board in February 1978 requiring all students to pass the minimal-competency test in language arts, mathematics, and reading to receive a high-school diploma.
The handicapped students and their families who disputed the policy filed their suit, Brookhart v. Illinois State Board of Education, in March 1981.
Students must score 70 percent on each part of the test to qualify for a diploma. The test is first administered to 11th graders.
Students who pass any part of the test need not retake that part, but may take any portion they fail as many times as needed to pass it or until they reach age 21.
All sections of the test are offered each semester, as are remedial courses for students who fail them. The students who fail may retake the test anytime up until their graduation.
Severely mentally retarded and some autistic students may be exempted from taking the test, but they do not receive diplomas, and parents are advised of that provision when they request the exemption.
Judge Morgan noted that during the 1978-79 and 1979-80 school years, the 11 plaintiffs, who all anticipated graduating in June 1980, had taken the competency exam one or more times.
Several of the students, he said, passed one or more parts, but none passed all three and consequently none received a diploma.
The students petitioned the state board of education for an order directing the Peoria district to issue them standard diplomas.
Mr. Gill agreed and in his ruling concluded that:
The Peoria board had the right to impose reasonable additional standards for graduation from high school with a regular diploma.
Neither the federal Education for All Handicapped Children Act nor Section 504 of the Rehabilitation Act of 1973 prohibits local school districts from requiring that exceptional students meet all otherwise reasonable standards for graduation, including the minimal-competency test.
Federal law requires the school districts to make "reasonable modifications" to tests such as minimal competency exams, to minimize the effect of an individual student's handicapping condition.
The Peoria district violated the due-process rights of the plaintiffs by failing to give them adequate and timely notice that the test would be a prerequisite for receiving a diploma.
In addressing those issues, Judge Morgan said, "the court is satisfied that local boards of education and their staffs have the right, if not a positive duty, to develop reasonable means to determine the effectiveness of their educational programs with respect to all individual students to whom they issue diplomas and that the mct [minimal-competency-testing] program here is a reasonable means."
"Nothing in federal or state law stands in the way," he said.
Judge Morgan rejected the plaintiffs' contention that the Peoria board had violated the various statutes and added, "the argument that the Peoria mct is scientifically invalid is simply not persuasive."
The judge said: "Perhaps no test of human beings by human beings can always be scientifically exact, but that is not the measure.
"It is a reasonable test of the accomplishments of the school system in imparting basic knowledge to all its students, and unless some such measure is permitted, no certification of graduation from an educational program can have any meaning whatsoever, to the student or to others, as the notice of educational attainment it is meant to be."
Judge Morgan concluded that the plaintiffs proceeded "upon basic fallacy" in arguing that such tests must be modified to take into account the lack of mental ability or capacity.
"It is certainly true," said the judge, "that giving a blind person a test from a printed test sheet discloses only his handicap and nothing of his knowledge.
"This, however, certainly does not mean that one can discover the knowledge or degree of learning of a mentally impaired student by modifying the test to avoid contact with a mental deficiency.
"To do so would simply be to pretend that the deficiency did not exist and to fail completely to measure the learning. A diploma issued as a result of passing such a modified test would be a perversion of the program to lend meaning to the diploma as a record of educational achievement."
'Avoidance of Pretense'
Such a position, Judge Morgan argued, "does not involve any lack of compassion or feeling for people living with serious handicaps; it simply involves the avoidance of pretense, the integrity of a knowledge-testing program, and reserves some meaning for a high-school diploma in relation to the attainable knowledge and skills for which the schools exist."
The judge also questioned an amendment to the Illinois school code, which took effect last fall, prohibiting denial of a standard diploma to a handicapped student who fails a minimal-competency exam when the failure can be "directly related to the student's handicapping condition."
"This presumably does not mean," he said in a footnote, "that a person who knows nothing due to total inability to learn, must receive a high-school diploma. Exactly what it does mean should be decided first at least by the educators and the courts of Illinois."
'Goals and Objectives'
In addressing the legal issue of whether the students' due-process rights had been violated, Judge Morgan disputed Mr. Gill's conclusion that the Peoria district failed to give the students "notice of the particular goals and objectives of the minimal competency tests that would allow a sufficient period of time in which to be exposed to the materials necessary to pass" the tests.
"It would seem apparent," Judge Morgan said, "that the 'particular goals and objectives' of any such tests would be to discover as well as possible whether the student tested possessed the degree of knowledge considered minimal in the subject matter involved in the test.
"There is no indication here that any plaintiff, student, or parent, didn't know precisely that objective at least a year before it became a factor in his or her graduation, and they also knew that passing the mct test would be required for graduation at least that long."
The judge also rejected the contention that because, according to Mr. Gill, "the record reflects that individual petitioners lacked exposure to as much as 90 percent of the material tested in the minimal competency tests," the students were entitled to diplomas anyway.
He said the school system was not required to give the plaintiffs "several years' notice" that the omission of basic areas of instruction in the handicapped students' individual education plans might prevent them from receiving diplomas if they could not pass the tests covering such areas.
"It appears to this court," Judge Morgan said, "that this is a misunderstanding and debasement of the concept of the due process of law."
A local district's requirement of a minimal standard of learning for graduation "is completely legitimate," the judge said, "and due process of law does not require pretending that such a standard has been achieved by a person whose handicap clearly makes attainment of that standard impossible or inappropriate in the overall interest of that person."
The judge acknowledged the argument advanced by Mr. Gill that some may attach a stigma to those failing to obtain a high-school diploma and that access to a diploma therefore could become a constitutionally protected right.
But, he added, such an argument "simply has nothing whatsoever to do with the legitimacy of a minimal competency test that is reasonably designed to test for a basic level of learning which a school district wished to make certain it imparts to all those who receive its diploma."
"The means to avoid such a stigma exists in attainment of the necessary knowledge. If the capacity for such does not exist, the law does not require pretense to the contrary," the judge concluded.
The case marks the second time in less than two months that Judge Morgan has overruled Superintendent Gill in a special-education case. In early February, in a case also involving the Peoria school system, the judge found that school officials were justified in suspending a handicapped student who was accused of verbally abusing a teacher. Mr. Gill had overturned the suspension, claiming that a suspension constituted a "change in educational placement" and was thus subject to a placement hearing under federal law.
But Judge Morgan found that the student's outburst was not directly related to his learning disability and was not covered by the special provisions.
The individual plaintiffs have not decided whether they will appeal the decision; the state board will consider an appeal after a briefing by its attorney later this month.