A state district judge in Texas was scheduled to appoint an expert this week to gather the data needed to assess the statewide impact of the controversial “no-pass, no-play” rule.
Judge Marsha D. Anthony’s decision came during the second week of a trial in which eight Houston parents have charged that the extracurricular-eligibility law is discriminatory because it has a disproportionate impact on minorities and singles out handicapped students for special treatment.
The “no-pass, no-play” rule, approved last year by the legislature and strongly endorsed by Gov. Mark White, a Democrat, bars students who receive a failing grade from participating in extracurricular activities for the next six-week grading period.
The regulation has produced 35 court challenges since it went into effect last January. In one of the suits, the state supreme court ruled unanimously this past summer that the law was constitutional.
Decision Challenged
With the advent of the football season this fall, however, the “no-pass, no-play” rule was challenged again.
The supreme court’s July decision, which reversed Judge Anthony’s earlier ruling that the law was unconstitutional, pertained only to the issuance of a temporary injunction, lawyers said.
The plaintiffs in the renewed legal battle maintain that the rule penalizes minorities, who have higher course-failure rates than nonminorities. Judge Anthony certified the suit as a class action last month.
Although none of the plaintiffs are minority members, or the parents of minority or handicapped students, they also charge that the regulation is discriminatory because it singles out students in special-education classes for exemption.
The lawyer for the plaintiffs, Anthony Sheppard, offered as evidence last month a survey of schools that he said demonstrated the rule’s discriminatory impact. Attempts to reach Mr. Sheppard for comment were unsuccessful.
But Kevin O’Hanlon, an assistant attorney general representing the Texas Education Agency and the state, questioned the survey’s validity. He said it included responses from only about 20 of the state’s districts and did not include the three largest systems--Dallas, Houston, and San Antonio--which together account for 70 percent of Texas’s 3.2 million students.
Officials close to the case said that if Judge Anthony appoints the ''special master” to ascertain the facts of the matter, the move will be an attempt to obtain information on the rule and its effects from all of the state’s 1,100 districts. The state has not yet compiled such data.
The judge had ordered districts last month to submit information on failure rates and students affected by the rule. But the state supreme court, acting on an appeal from the Texas Education Agency, dismissed the order.
Last week, as the state presented pertinent statistics from some 300 schools, a court clerk said there remained a “slim chance” that parties in the suit would agree that a special master was not needed.
Delay Is Possible
If the master is appointed, which most of those involved in the case suggested last week was likely, the trial would be suspended pending compilation of the requested information. That action could delay a final ruling in the case for several months, according to observers.
The data now available indicate that in the first six-week grading period of this fall, approximately 85 percent of the state’s high-school varsity football players passed all courses and were eligible to play. But failure rates among all high-school students ranged from 33 percent to 40 percent and many junior-varsity players as well as cheerleaders and band members were sidelined.
