Many States Assess Lessons of Florida 'Exit-Test' Lawsuit
As the first state to try to withhold the diplomas of high-school seniors who failed an "exit test," Florida has learned some expensive lessons from the legal challenge that followed.
But the courts' scrutiny of the state's program--which was permitted to take effect last week by the U.S. Court of Appeals for the 11th Circuit--was seen by many as an inevitable, if painful for Florida, step in the expansion of the exit-test concept nationwide.
By outlining an important set of legal guidelines, the case has already exerted a powerful influence on the formulation of general principles for such programs in other states, those familiar with the activities say.
Legal analysts and state testing experts say the case, Debra P. v. Turlington, tends to support the judicious use of "exit tests" and sets forth a manageable standard for establishing that students have been taught the material covered on the tests. In addition, they note, the rulings in the case confirm the importance of three practices in the administration of exit-testing programs: giving students adequate notice before withholding diplomas; offering extensive remedial help for those who do not pass; and providing several opportunities for retaking the examination.
"Obviously, we're very pleased with the outcome of the Florida case," said Stan Bernknopf, coordinator of the student-assessment program in Georgia, where the class of 1985 will be the first to face the threat of withheld diplomas. "We think that it reiterates what we've believed--that states have not only a right, but an obligation, to set criteria and hold people to those criteria, as long as it's being done in a fair and equitable fashion."
Noted one state official: "Having Florida as a bad model of what not to do, people listened and tried to avoid the problems."
Florida's case has not yet been resolved entirely. Last week, a three-judge panel of the 11th Circuit denied a motion for a stay filed by the plaintiffs. U.S. District Judge George C. Carr had earlier refused to interfere with the state's plan to deny diplomas to some 1,300 seniors--two-thirds of whom are black--who have not passed the state's functional-literacy test.
Judge Carr, who three weeks ago found the test constitutional, said the black plaintiffs in Debra P. v. Turlington "have not shown [that] the stay will serve the public interest. To the contrary, the public interest would appear to be best served by allowing the state to implement a plan which is the keystone of its new educational policy."
Following the ruling of the 11th Circuit, Steve Hanlon, a lawyer for the black plaintiffs, said he was uncertain whether he would appeal the case to the U.S. Supreme Court.
Address the Issues
Officials in other states involved in developing or using exit tests, however, say that Florida's experience has enabled them to develop programs that address in advance the issues raised in Debra P. Unlike Florida, where education officials were required by the legislature to design and implement a program on very short notice, other states are able to take the time necessary to plan their programs.
Although they still face the possibility of litigation, officials in these states hope they are establishing programs that are less vulnerable to legal challenges.
"When we first got involved in this, when the Florida case was going through the courts, we pretty much adopted the attitude that it was a matter of time [until we faced a court suit]," Mr. Bernknopf said. ''I don't believe that any more. It's been through the courts, and it's been through the professional literature. The issues that they'd use to bring a case just aren't that valid any more."
In Tennessee, where about 4.6 percent of this year's seniors will not receive diplomas because they failed the tests, state officials say they know of no impending legal challenges. "To tell you the truth, what we'd been saying here is not 'if' there's a case, but 'when.' Frankly, after the decision in Florida, if a case was in the works, it may have taken a little wind out of their sails," said Bobby J. Woodruff, director of basic skills and proficiency testing.
The states involved in developing exit-test programs have paid particularly close attention to the issue of "curricular validity." Legal experts say that Debra P. and other cases appear to put the burden on plaintiffs to prove that the skills tested were not taught, rather than on the state to prove definitively that they were.
"When the Fifth Circuit first dealt with the curricular-validity issue and said schools have a responsibility to prove they have tested what's actually been taught, tremendous waves went through the education community, because how do you really satisfy that?" said Martha M. McCarthy, associate dean of faculties and professor of education at Indiana University and a specialist in school law.
"There are some people who feel that you can't really meet the standard," she added. "The state would have to show that every school and every teacher taught what was on the exam--and then you get into the issue of whether they taught it well.
"There have been several pieces to this besides Debra P. In New York, Illinois, and Georgia, the courts bought the curricular validity of those exams," Ms. McCarthy said. "They said, 'We're going to accept that the schools taught what's on the exam.' That lessened the burden of proof a little bit.
"Now, it's different if you have to produce content validity--these are the [curriculum] objectives and the test matches those," she continued. "That's different from instructional validity. And that's what the courts seem to be leaning toward: 'As long as you can show that the objectives match, and there's no evidence to the contrary, we will accept the validity."'
Officials in states with exit-test programs in place or under development are taking care to ensure that the tests cover only material that all students are exposed to. They have been working toward establishing a closer link between curriculum objectives and test objectives.
"We say that the content is valid. Our opponents disagree with us," said James Whitney, attorney for the New York State Department of Education, whose exit test has been challenged by special-education students. " ... We can't prove that in a particular classroom it was taught or not taught, but there's no reason to believe it was not. We're talking about very basic skills, not something exotic."
Tennessee's test is "strictly academic" and includes no so-called ''life skills." Mr. Woodruff noted that this may make the state somewhat less vulnerable to legal action, since it is easier to document that academic skills are included in both curriculum plans and textbooks.
"We didn't want to fall into the same trap Florida did and assume that if you teach school skills, students can take it and apply it," said Richard Causey, assistant director for the division of audits and management services for the Alabama education department. "You've got to put it in your curriculum."
The question of what constitutes adequate notice remains a matter of judicial debate, but in practice, most states appear to be giving at least two to three years' notice; some are giving as many as 12.
"We gave three years' notice and we felt that was acceptable and adequate," said Mr. Whitney of New York. "Initially in Illinois [the trial court] said one year, then the circuit court reversed and said, 'no, that wasn't adequate.' In Anderson [Anderson v. Banks, a Georgia case], it was a two-year period. The question is how much exposure you need to the curriculum."
When the Missouri state board of education meets in late June, it is expected to begin discussing whether to make competency tests a prerequisite for graduation. Since 1978, the state has required all 8th graders to take a three-part basic-skills test; those who do not pass one or more sections may retake them any time through grade 12.
If the board decides to make the awarding of diplomas contingent on passing the test, said P.J. Newell, assistant commissioner for education, the lead time given students will be crucial. "It will be my recommendation that appropriate lead time [be given]--for example, that this year's 8th graders be given notice that it will be required as of 1987, giving them four more chances to pass it. If we did this, I think there would not be a question as to whether this would be legal, and we would not have denied them a diploma without adequate notice. We have spelled out clearly the educational objectives that are tested."
A spokesman for the Maryland state education department said of that state's competency test: "It's not an exit test in that 12th graders have to pass or they don't graduate. They've got several shots at it, starting in 9th grade. The object is not to keep kids from getting diplomas." The official, Gus Crenson, said he did not know how many members of the senior class of 1982 had failed to pass the reading test, but added that most of those failing had also failed courses required for graduation.
"I don't think there's anything in the Florida case that makes it necessary to reconsider what we've done," he said. "We're pretty comfortable with it."
Ms. McCarthy also believes that lead time is a critical issue in avoiding claims of racial discrimination such as those made in Debra P. Although some analysts believe that any minority child who has been in an unconstitutionally segregated school for any part of his education cannot be denied a diploma on the basis of a test, Ms. McCarthy maintains that a four-year notice period may suffice.
"If there's been a history of racial discrimination in the districts," she said, "you've got to show that there's a sufficient phase-in time from the time that you adopt the mandate until it is made a graduation requirement to eliminate the taint of segregation. I think the Fifth Circuit was most interested in those four years of high school in the Florida case."
For handicapped students, however, "it may need to be even longer than four years; you may need to give notice in elementary schools and alter [individualized education programs]," she said.
Extensive Remedial Help
Judge Carr's opinion seemed to reinforce the policies that provide extensive remedial help for those who fail the test, and several--or unlimited--chances to pass the test. Most states with exit-test programs place heavy emphasis on remediation.
In North Carolina, state officials suggest, a successful remediation program may already have warded off litigation.
In 1980, the American Civil Liberties Union and the National Association for the Advancement of Colored People filed suit against the state's exit-test requirement, enacted by the legislature in 1977. Students are given at least five chances to pass the test and may continue to try through their 21st year. Throughout the process, those having difficulties may take remedial classes.
It was the data describing the remediation process that persuaded the plaintiffs to abandon the lawsuit, according to William J. Brown, special assistant for research for the North Carolina Department of Education.
"They concluded that remediation was so effective that they asked that the case be withdrawn," Mr. Brown said. 'It never did get to the courtroom."
"Remediation is a really key part of this program. It's really been the hallmark," Mr. Brown added.
"I think it's here to stay in Nevada," said Herb Steffens, director of the planning and evaluation unit for the state education department. Nevada, in fact, is already facing the next generation of issues surrounding exit testing. "There is concern about the level of the standards," Mr. Steffens said, adding that over the next two years, the state will increase the requirements for passing the reading, writing, and mathematics tests. "The public is saying, 'Let's ask more."'
Vol. 02, Issue 35