Commentary

Raising Standards Without Undue Fear of Judicial Reprisal

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During the last few years, the American public has feasted on criticism of allegedly poor schools, ineffective teachers, and unmotivated and undisciplined students. Many Americans are becoming convinced that their educational dollars are not buying a high-quality product. Regular investigations by high-level committees and commissions continue to document lower student achievement and generally inadequate educational preparation. Somebody, agree the critics, should do something.

And yet, many educators argue, when school officials do attempt to raise standards and achievement levels, their efforts are also met with contempt--ranging from criticism in the media to actual lawsuits in which schools are sued for depriving children of their constitutional rights. Litigation is a constant threat to those who must make decisions as to student placement, promotion or retention, and reasonable requirements for graduation. But it is my strong feeling, after observing a number of cases in which schools attempting to raise standards have been sued, that educators not only have responsibilities and rights to make these decisions, but, in the words of the U.S. Supreme Court in Wood v. Strickland, should do so "without undue timidity."

Several examples show how state and federal courts have sustained the reasonable efforts of local school districts to improve their educational programs and to assure the public of better-qualified graduates.

Prior to 1981, the Tuscaloosa, Ala., schools had no districtwide policy on promotion and retention. Some schools required specific achievement levels for promotion and others did not. At least three schools practiced social promotion whereby children were passed on to the next grade level while receiving instruction at their (lower) academic levels. For example, a 3rd-grade student might be passed on to 4th grade in June, but in September he might be instructed in reading on a 2nd-grade level because that was the level of his skill. Consequently, if he did well, he could receive an A in reading on his 4th-grade report card for 2nd-grade work.

On June 22, 1981, the Tuscaloosa school board adopted a plan to develop minimum districtwide promotion standards for implementation the following year. Each child's reading level was recorded on the first report cards of the 1981-82 school year. On March 2, 1982, the superintendent sent a letter to all parents informing them of the new promotion policy and noting that their children might be retained if specific achievement levels were not reached. These levels were officially adopted as district policy by the board on March 15, 1982. Subsequently, 29.4 percent of all children were not promoted at the end of the year.

A number of parents challenged this action in court charging that:

  • a change in policy that affected such a large number of students was not proper, and
  • the time period for implementation did not allow opportunities for remediation.
  • The parents brought no charge of racial bias, although 23.6 percent of those retained were black, or of arbitrary or capricious action on the part of the school board. The parents instead based their argument on an earlier decision of the U.S. Court of Appeals for the Fifth Circuit in the 1978 Florida case, Debra P. v. Turlington.

    In 1976, the Florida legislature established new standards for high-school graduation effective the following year. These included successful completion of a minimum number of credits, mastery of certain basic skills, and satisfactory performance on a statewide functional-literacy examination.

    A group of black students who failed the examination and did not graduate filed a class action claiming they had been denied their 14th-Amendment property rights (to a diploma) without due process--that is, enough time to prepare for the new examination. The students also claimed that they were at an educational disadvantage in taking the test because they had attended segregated schools. In 1979, the court agreed that the state had the power to create a law requiring new standards and tests for graduation, but it also required the state to prove that the content and skills tested had actually been taught. The general practice had been that if students passed the required courses they would receive a diploma. That was a reasonable expectation, according to the court, and the added requirements imposed so quickly upon the students by the state were declared arbitrary and improper. The expected diploma was a piece of legitimate property.

    (Incidentally, in a continuation of this case, the court last spring gave full approval to the Florida law because of the passage of time and the opportunities for students to prepare themselves for the state examination. The court also decided that the schools do teach the information on the test, and that there was no "causal link" between the proportion of black students failing and past segregation. See Education Week, May 9, 1984.)

    The Tuscaloosa case, however, was seen in a different light by the U.S. Court of Appeals for the 11th Circuit. That court did not feel that property (promotion or graduation) had been improperly withheld by the school board's action. Referring to the definition of property in another precedent-setting case, Board of Regents v. Roth, the court said: "To have a property interest in a benefit, a person clearly must have more than an abstract need for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it."

    In summary, the court said, "The plaintiffs have no property right in an expectation that they will be promoted despite objectively substandard classroom work." These students, and their parents, did have an "abstract need" for promotion and they expected it. However, they had no legitimate claim to property they had not earned.

    In the Florida case, students had a reasonable expectation of a diploma after successfully completing their courses. In effect, the rules of the game were changed as they were running from third to home. However, in the Tuscaloosa case, the court found that those students could not reasonably expect diplomas when they had not successfully completed their courses. In fact, the court upbraided the parents for knowingly accepting substandard work and expecting that their children would be rewarded with automatic promotions.

    Another interesting case, this time involving handicapped children, was the result of action by the Peoria, Ill., school board. The board decided to require a passing rate of 70 percent on separate minimum-competency tests for reading, language arts, and mathematics before its students received a graduation certificate. The tests were in preparation from 1974 through 1977, adopted formally in February 1978, and first given in the spring of 1979 to juniors expecting to graduate in 1980. These minimum-competency examinations are given each semester. Remedial help is available and, if necessary, students can continue to take the individual tests each semester through age 21 to try to pass them and receive a diploma. Those failing the tests are given a Certificate of Program Completion.

    Among the students who failed the exams that first year were 12 handicapped pupils enrolled under the provisions of the Education for All Handicapped Children Act (P.L. 94-142). They appealed to the state superintendent, who ruled that the board must give regular diplomas to the handicapped students since they had reasonably expected this property as the outcome of their years in school. The state superintendent agreed that the students' 14th-Amendment rights had been denied as the board had taken property from them without the required constitutional due process. The school board then appealed to the U.S. District Court.

    The court decided in favor of the school board, finding that the board's action was anything but sudden and arbitrary, and its intention was to lend credibility to the issuance of a diploma. The fact that some of the students might not have been exposed to materials on the examinations was not the fault of the board but the result of each student's individualized education plan. That plan, required by federal law for each child designated as handicapped, established the level and scope of education best suited for each child. The court noted that the board's failure to grant diplomas to these handicapped children did not demonstrate a lack of compassion; it simply helped guarantee that a quantum of knowledge and skill was represented by the diploma. It avoided a pretense often practiced by school districts that everyone receiving a diploma possesses a minimum level of achievement.

    The time element that had figured crucially in the Florida case was not a cause for concern. The Peoria planning stage had been lengthy, all parents were notified more than a year in advance, and the remedial efforts made were much greater than those legally required of any school district under P.L. 94-142. The board's actions in upgrading the quality of its diplomas were solidly supported by the court.

    Another case demonstrating judicial support for reasonable administrative decisions also involved the Peoria school board in action against the Illinois State Board of Education. A high-school student, diagnosed as having a "learning disability" as defined by P.L. 94-142, was given a detention on Nov. 18, 1980, for disturbing his auto-mechanics class. He refused loudly and forcefully to accept the detention, directing at his teacher at least two forms of a common invective. He was given a five-day suspension by school authorities for gross misconduct and verbal abuse of a teacher.

    The student received a hearing before the suspension, and the impartial hearing officer agreed with the administrator's decision. The state superintendent, however, ordered the suspension lifted and the student's personal record cleared of the disciplinary action. His reasoning included the fact that federal law does not permit termination (even for a few days) of the education of a handicapped child by suspension unless he or she is a danger in school to himself or others.

    The U.S. District Court disagreed with the state superintendent and could find no fault with the actions of the school board. Commenting on the fact that the young man had progressed through at least 11 years of school, the court pointed out that he certainly knew that his outburst was unacceptable behavior even if he was somewhat handicapped. The court also considered the short suspension a learning experience, and, aiming a barb at the state superintendent, stated that "... any theory that some harm of the brief interruption of classroom work could outweigh the educational value of the suspension can only be recognized as pure imagination." Once again, a reasonable and rational decision by a school administrator was upheld and applauded by the court.

    Can standards of educational achievement and behavior in schools be raised by educators without undue fear of judicial reprisals? These are only three of many court cases that provide a resounding "yes!" If standards are to be raised, school authorities must be able to proceed without constant intimidation by the media and threats of frivolous legal action. Litigation is a daunting prospect, even if you suspect you are going to win. But the state and federal courts are regularly upholding the responsible decisions of educators and therefore educators should be confident in setting and maintaining their own reasonable standards.

    Vol. 04, Issue 17, Page 16-17

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