Florida's Minimum-Competency Test Ruled Constitutional

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Peggy Caldwell contributed to this report.

Tampa, Fla.--The state of Florida can legally withhold high-school diplomas from students who cannot pass a functional-literacy test, a federal district judge ruled last week in a decision that is expected to have national impact.

In Florida, Judge George C. Carr's decision means that as many as 3,100 seniors--about two-thirds of whom are black--will not receive diplomas this year. Instead, they will receive "certificates of completion" that indicate only that they have completed 12 years of public schooling.

In issuing his 30-page decision on Wednesday, Judge Carr said the black plaintiffs had failed to prove that they did not have an adequate opportunity to learn the mathematics and communications skills tested on the state-developed examination, known as ssat-ii.

He also acknowledged that the schools remain scarred by the state's history of seg-regation, but that this year's black seniors, who have attended integrated schools since 1st grade, have had equal educational opportunities "in the constitutional sense." Judge Carr had been ordered by a federal appellate court to consider those issues.

Proficiency Testing for Pupils

The case, Debra P. v. Turlington, has been closely watched by educators nationwide since it was filed four years ago. Thirty-eight states have adopted some form of proficiency testing for pupils, according to the Education Commission of the States (ecs), and laws in 20 of those states provide for diploma sanctions, either statewide or as a local option.

Some states, however, have delayed putting the diploma sanctions into effect because of uncertainty over legal issues of the sort raised in Debra P.

"Not having read the decision, I would say that the case is far from over," said Christiane H. Citron, senior attorney at ecs, who writes and lectures on legal issues raised by competency testing.

"These are important issues of the first impression that have never been ruled on before," she said. "The student minimum-competency-testing movement is here to stay, and no state has repealed its testing program. ... The courts are saying that this is a legitimate educational tool for states or districts to use. This decision appears to say that. There are legal pitfalls, but they are problems that can be addressed."

She added that states and districts that have such diploma sanctions should, as Florida does, award "certificates of completion" to students who fail the tests but complete all other graduation requirements. "It is my legal opinion that they should get something," she said.

Steve Hanlon, a Tampa lawyer on the legal team representing the group of black Hillsborough County students who challenged the constitutionality of the basic-skills examination in 1979, said he will appeal the decision. "We profoundly disagree with Judge Carr's decision and we will appeal," Mr. Hanlon said. He said statistics clearly show that Florida's long history of segregated schools has left "vestiges" that make it harder for black students to pass the test.

Mr. Hanlon also said that his legal team will most likely seek a stay that would prevent the state from withholding diplomas this year.

Ralph Turlington, who as Florida's commissioner of education was the lead defendant in the case, praised Judge Carr's decision as one that will improve the quality of the state's high-school graduates. "The students in Florida and the nation are the real winners through this court decision," Mr. Turlington said. "Judge Carr's decision comes as no surprise, for we have felt that the state has presented a strong and compelling case for approval of the test as a graduation requirement."

Functional Literacy Test

State education officials say the functional-literacy test is nothing more than an attempt to determine whether high-school graduates can actually apply the 24 separate mathematics and communications skills they were supposed to learn during their years in public schools. Skills tested on the examination include figuring discounts, computing sales taxes, using graphs, and balancing checkbooks. The test also includes multiple-choice questions covering reading and writing skills.

Thomas H. Fisher, the state's testing director, said none of the skills goes beyond the 8th- or 9th-grade level. Students first take the test when they are in the 10th grade and have four more chances to pass it while in high school. State officials told Judge Carr earlier this year that they require Florida schools to provide students who fail the test with "any necessary remediation."

In 1980, Judge Carr ruled that the test was neither racially nor culturally biased. He said, however, that the state had to wait until this year to use the exam as a diploma requirement because the senior class of 1983 is the first to have attended desegregated schools from the 1st grade onward. A federal-court order forced Florida to integrate its schools in 1971.

The U.S. Court of Appeals for the Fifth Circuit upheld Judge Carr's 1980 ruling, but ordered the district judge to determine whether all of the skills tested on the examination actually are taught in Florida schools. (Florida is in the newly created 11th Circuit; an appeal would go to the U.S. Court of Appeals in Atlanta.)

"Curricular Validity"

In March, Judge Carr held a week-long hearing on that issue, commonly known as "curricular validity." In the ruling released last week, he said it is "impossible to prove conclusively" the degree to which each of the more than 100,000 seniors in Florida was exposed to the skills, but he said he is satisfied that the test is constitutional.

"[T]he districts have reported that these skills are included in their curriculum, and ... a substantial number of public-school teachers have stated that they adhere to this curriculum by including these skills in their course of instruction," Judge Carr wrote.

"In addition, and of even greater significance in determining the constitutionality of the test," he added, "it is known that students are given five chances to pass the ssat-ii between the 10th and 12th grades of school, and that, if they fail, they are offered remedial help."

Ms. Citron said the issue of curricular validity "was what made this case interesting."

"How the burden of proof was allocated is a terribly significant legal determination," she said. "The case could turn on that. Pragmatically speaking, we've all been wondering how the state shows what was really taught as opposed to what was in the curriculum. I think this case is definitely going to present the appellate court with an opportunity to clarify exactly what it meant by the first Debra P. decision."

"No court has ever ruled on content validation," Ms. Citron said. ''To me, that's the $64,000 question. How does one prove and how does one validate what is actually taught?"

Last month, Judge Carr held another hearing on a second question raised by the plaintiffs: Does the fact that black students in Florida are suspended, expelled, and placed in programs for the mentally handicapped at disproportionately high rates deprive them of an equal opportunity to pass the examination?

The plaintiffs' lawyers told the judge, for example, that even though blacks in 1981-82 made up only 22 percent of Florida's student population, they received 38 percent of the suspensions and accounted for 60 percent of the students placed in classes for the mentally handicapped.

The lawyers claimed that the most damning statistics of all, however, are those concerning black students' performance on the exam.

As of last October, 2,178 blacks, or 10.2 percent of the state's black seniors, had failed to pass the exam. In comparison, 1,077 whites, or 1.4 percent of the white high-school seniors statewide, failed. In other words, the plaintiffs' lawyers said, the failure rate among blacks is more than seven times higher than that among whites.

Years of Inferior Education

In his opinion, Judge Carr acknowledged the disproportion, but said the class of 1983 no longer "shoulders the burden of years of inferior education."

"Black and white members of the class of 1983 have had the same textbooks, curricula, libraries, and attendance requirements throughout their school years," the judge wrote. "Thus, while no two students can have an identical academic experience, their educational opportunities have nonetheless been equal in a constitutional sense."

Judge Carr said it was "unfortunate" that the problems resulting from Florida's history of segregation are not likely to go away "today, tomorrow, or even by the end of the decade."

"Indeed, as long as past, purposeful segregation remains part of our collective memory," he wrote, "its vestiges will, sadly, remain with us not only in our schools but in every aspect of our lives."

Ms. Citron said that, in her opinion, the Debra P. rulings indicate that in districts that have not been desegregated for at least 12 years, "the test is going to have to be delayed as a [diploma sanction], but not for remedial purposes. I think it is unconstitutional to withhold a diploma on the basis of a test where kids had part of their education in a legally inferior setting," she said.

Vol. 02, Issue 33

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