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Published in Print: March 6, 2002, as Court Declines Case Challenging Promotion-Assessment Ties

Court Declines Case Challenging Promotion-Assessment Ties

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The U.S. Supreme Court declined last week to step into the debate over the legality of high-stakes testing.

Without comment, the justices refused to hear the appeal of a Louisiana parents' group that alleged the state's testing program for 4th and 8th graders violated the students' 14th Amendment right to due process of law. The appeal in Parents Against Testing Before Teaching v. Orleans Parish School Board (Case No. 01-1025) was the first over high-stakes testing to reach the Supreme Court since the recent blooming of the school accountability movement.

The group, representing 13 New Orleans parents, had sought to bar the state and school districts from denying promotion to students who fail tests under the Louisiana Educational Assessment Program for the 21st Century, or LEAP 21. The group said 42 percent of 4th graders and 53 percent of 8th graders in the 75,000-student Orleans Parish district scored "unsatisfactory" on the 1999 tests.

The Louisiana state board of elementary and secondary education in 2000 adopted a policy of mandatory nonpromotion of students who fail either the mathematics or English portion of the test. During the 2000-01 school year, some 18,000 Louisiana students were denied promotion based on their performance on the test, according to court documents.

The parent group's 2000 lawsuit challenging the testing program alleged that the state had denied the property rights of failing students without due process of law. A federal district judge in New Orleans ruled that year, however, that while courts have recognized a property interest in receiving a diploma, "no court has ever recognized a property interest in promotion."

In a terse opinion last September, a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, unanimously upheld the lower court's dismissal of the suit. The panel said a 1979 5th Circuit decision cited by the plaintiffs, Debra P. v. Turlington, upheld a property interest in receiving a high school diploma, but did not apply to "any expectation of promotion in the public schools from year to year."

In its appeal to the Supreme Court, Parents Against Testing Before Teaching cited the recent decision by Congress to mandate annual mathematics and reading tests for students in grades 3-8 as a reason for the court to decide whether high-stakes tests involve a 14th Amendment property interest in student promotion.

"Educational improvement is long overdue in Louisiana, but this state did too much too soon," the group's appeal said.

The justices denied the appeal without comment on Feb. 25.

They Shalt Not Rule

In separate action last week, the Supreme Court:

  • Declined another opportunity to be drawn into the debate over the display of the Ten Commandments on government property.

The justices declined to hear an appeal from Gov. Frank L. O'Bannon of Indiana, a Democrat, who wanted to erect a 7-foot-high monument depicting the commandments on the grounds of the state capitol in Indianapolis.

Two lower federal courts blocked the monument plan as an unconstitutional government establishment of religion. The appeal was O'Bannon v. Indiana Civil Liberties Union (No. 01-966).

Last May, the high court declined an invitation to clarify its 1980 ruling in Stone v. Graham, which struck down a Kentucky law that required the posting of the Ten Commandments in public school classrooms.

In the case last year, which dealt with a Ten Commandments monument in front of a municipal building in Elkhard, Ind., three justices dissented from the court's refusal to consider the case.

Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas suggested the display of the commandments in that case was constitutional.

  • Ruled unanimously that to survive a motion for dismissal, an employment- discrimination claim in federal court—which would include such claims involving school districts—need not meet the legal test for establishing a prima facie case, a legal definition that means enough evidence exists to justify sending a case to trial.

The complaint must only contain "a short and plain statement of the claim showing that the pleader is entitled to relief," Justice Clarence Thomas wrote for the court in Swierkiewicz v. Sorema (No. 00- 1853).

The decision revives a suit filed by a 53-year-old insurance executive that alleged discrimination on the basis of age and national origin.

Vol. 21, Issue 25, Page 30

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