A three-judge panel of the U.S. Court of Appeals for the 11th Circuit has upheld a ruling that Florida schools teach the skills tested on the state’s controversial “exit test,” and that the high failure rate among black students is not causally connected to vestiges of past segregation.
With neither side planning any further action, the decision closes the books on a case that education officials in other states acknowledge has affected the development of such tests. (See Education Week, May 25, 1983.) As of late 1983, at least 19 states required students to pass a similar test before receiving a high-school diploma.
The case, Debra P. v. Turlington, was filed in 1978 on behalf of several black students who challenged the constitutionality of a 1978 law that required all Florida high-school students to pass a test of basic skills in communication and mathematics before receiving their diplomas.
Ralph D. Turlington, Florida’s commissioner of education, said last week that he agreed with the panel’s finding and believed the decision was a sign that "[T]he court has supported our effort to achieve academic excellence.”
“The business of the schools is education, not litigation, and I hope with this ruling, our focus can switch from the courtroom to the classroom,” Mr. Turlington said in a statement.
The lawyer representing the students in the case said that they did not plan to appeal to the U.S. Supreme Court, having decided early on that such an appeal could easily backfire.
“Civil-rights lawyers do not run off to the Supreme Court with the same abandon that they used to,” said Steve Hanlon, the Tampa lawyer who represented the students. “We would not get within 50 feet of U.S. Supreme Court. We choose not to. We would be frightened of the results.”
Mr. Hanlon said he was concerned that the court, if given the opportunity, would use the case to “chip away at Brown v. Board of Education.” But, he noted, while the plaintiffs were “obviously disappointed with the opinion,” they were also satisfied that the case had positive effects within the state of Florida and elsewhere.
“We’re very proud of what we did along the way,” Mr. Hanlon said. ''We saved thousands of diplomas. There are thousands of graduates who have jobs who wouldn’t have if we hadn’t filed this case. The whole notion of instructional validity originated in this case.” The courts also upheld the notion of “perpetuation of past discrimination,” established the right of property with respect to diplomas, and agreed that adequate notice and adequate time were needed before such tests could go into effect, Mr. Hanlon added.
Rulings Upheld
The ruling is the fourth issued in the case. In 1979, the federal district court ruled that the use of the test as a diploma sanction violated the equal-protection and due-process clauses of the Constitution, as well as several other federal laws.
The court ruled that Florida could not use the test scores to withhold students’ diplomas until the 1982-83 school year, although schools could use test results as the basis for providing students with remedial help. By 1983, the judge in the case reasoned, graduating seniors would have spent their entire education in desegregated schools and would also have had sufficient notice of the testing requirement.
The plaintiffs had argued that they were at an educational disad-vantage in taking the test because they had attended segregated schools, were not given enough advance notice of the test requirement, and had not been taught the material covered in the test.
Following an appeal by the state, the former U.S. Court of Appeals for the Fifth Circuit upheld the district court’s ruling but remanded the case to the district court for further evidence on two issues.
First, the appeals court ruled, the state had to prove that the material covered by the test was actually taught in Florida schools. The ruling by the district court that the test was “instructionally valid” was “clearly erroneous,” the appeals court ruled, noting that the record was “simply insufficient in proof that the test administered measures what was actually taught” in Florida schools.
And second, the state had to show that the disproportionately high failure rate among black students was not due to present effects of past intentional segregation. Or, if such effects were found, the state was required to prove that the diploma test would in fact help end them.
Last spring, U.S. District Judge George Carr ruled that the state had provided adequate evidence that Florida schools teach the information on the test. The judge also ruled that, “although vestiges of past segregation still exist, and although the test still has a racially discriminatory impact, there is no causal link between the disproportionate failure rate of black students and those present effects of past segregation.” The court also found that, “even if there were a causal connection, the defendants had carried their burden of showing that the diploma sanction would remedy those effects” by identifying those students who needed remedial help.
Upheld on Appeal
The lawyers representing the students challenged Judge Carr’s decision on several counts. They argued that the evidence provided by the state did not support the claim that schools taught the material on the test.
The plaintiffs based their claim on a study conducted for the state, which looked at material taught during the 1981-82 school year. Because the state had enacted major changes in education in 1976, the plaintiffs said, the study’s findings did not represent the entire time that the students had been in school.
The court acknowledged that the evidence showed a change in what was taught after the 1976 law was passed. But the judges pointed out that, since most of the skills tested on the exit test were taught in the later grades, students’ remedial studies after 1977 covered the necessary material.
The appeals panel also pointed to Florida’s “extensive” remedial efforts and to a survey of students that showed a high percentage responding that they had indeed been taught the skills on the test.
‘Vestiges’ Rejected
In upholding the finding that vestiges of segregation are not responsible for high failure rates among black students, the appeals panel cited several pieces of evidence.
First, the judges said, the state’s expert witnesses presented convincing evidence that factors other than schooling affected black students’ success or failure on the test. The panel also pointed to evidence that black students in districts that had black administrators as role models performed no better, on average, than those in districts with no black administrators.
But the most compelling piece of evidence, the panel ruled, was the ''very high percentage” of black students who have now passed the test. Of the black students in the class of 1983--the first for whom failure meant the withholding of a diploma--99.5 percent had passed the communication section of the test, and 91 percent had passed the mathematics section.
The appeals panel also rejected the appellants’ claim that the diploma test did not help to rectify past discrimination against black students. “The remarkable improvement in the ... pass rate among black students over the last six years demonstrates that the use of the [test] as a diploma sanction will be effective in overcoming the effects of past segregation,” the panel wrote.
The plaintiffs’ lawyers had argued that the improvement in students’ performance could not be traced to the test because failure had not yet been used to deny diplomas. But the panel wrote: "[W]e think it likely that the threat of diploma sanction that existed throughout the course of this litigation contributed to the improved pass rate, and that actual use of the test as a diploma sanction will be equally, if not more, effective in helping black students overcome discriminatory vestiges and pass the [test].”
