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Judge Upholds Ohio Test for Private Students

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A federal judge in Cincinnati last week rejected a claim by private schools in Ohio that they should not have to give their students a graduation test mandated by the state.

The 32-page ruling by U.S. District Judge Herman J. Weber is believed to be the first time a federal court has weighed in on whether a state can force private schools to participate in statewide testing.

Taking part in Ohio's test is not too heavy a burden for private schools, the judge ruled, given the state's compelling interest in ensuring that its residents are adequately educated.

The decision upheld a state law that took effect last year that says nonpublic schools will lose their state charters and the authority to grant high school diplomas unless they give their students the five subject-area exams that make up Ohio's 9th-grade proficiency test.

The Ohio Association of Independent Schools had challenged the law as unconstitutional, arguing that it is too intrusive. The group is to decide next week whether to appeal the decision.

The OAIS, which represents 30 college-preparatory schools, said the law violates the schools' right of free speech--in terms of what curriculum to teach--and their right and the rights of students' parents to direct the educations of their children.

Giving the test, as the independent schools had to do for the first time last October, not only burdens the school calendar but also forces teachers to break from the normal lessons and prepare the students for the test, said John Raushenbush, the executive director of the OAIS.

Preparing students for the citizenship and science tests, he said last week, takes between 25 percent and 40 percent of the lesson time from a yearlong course.

"If you remove the class time that the tests and preparing for them requires," Mr. Raushenbush said, "then you clip off, prior to graduation, that much college-prep time."

Originally, private school participation in the tests was optional, but a 1993 law made it mandatory, beginning last fall. The tests have been given to public school students since fall 1990. (See Education Week, Nov. 1, 1995.)

For 'All Students'

Judge Weber found that the law does not require private schools to change their curricula. The law, he said, requires only that the schools give the test.

"If OAIS member schools choose to alter their curricula in response to [the law], that fact does not establish that [the law] infringes upon the First Amendment rights" of the plaintiffs, Judge Weber wrote.

Judge Weber said that the schools already teach the subjects required by the state's minimum academic standards and that the testing program measures the related skills and knowledge.

The schools had argued that there was no "direct connection" between the standards and the test, Mr. Raushenbush said. For example, he said, the minimum standards do not include a citizenship-course requirement, but the exams specifically test on citizenship.

Because of the "excellent education" the independent schools afford their students, Judge Weber found, the "only real burden" placed on the schools was the time it took to administer the tests--less than three hours a day for five days. Given that limited kind of burden, he said, the state's interests win out.

Not an Option

The ruling offered vindication for Ohio officials. "Our ultimate goal is to ensure that every student graduates from high school and is ready to enter higher education or to get a job," John Goff, the state schools superintendent, said in a written statement. "The 9th-grade tests measure basic skills that all our students--not just some of them--need to accomplish these two objectives."

But independent schools believe autonomy is central to their mission. Peter D. Relic, the president of the National Association of Independent Schools, based in Washington, said in a statement that "this kind of intrusion into the academic life of these extremely successful schools sets a dangerous precedent for more state interference in the future."

"Our question is at what point are our rights violated?" Mr. Raushenbush asked. "When the tests partially determine our curriculum, when the tests totally determine the curriculum, or when we're put out of business when we can't be distinguished from public schools?"

Solving the dilemma by forgoing the state charters is not an option for schools, Mr. Raushenbush said.

A state charter certifies that parents who send their children to a chartered school are complying with the state's compulsory-attendance laws. A charter also entitles a private school to funds and services provided by the state, such as for administrative services and bus transportation.

But Mr. Raushenbush said his member schools would gladly give up the funding if they could also get out of the tests--without losing their state charters.

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