Texas Exit Exam Under Challenge In Federal Court

By Mary Ann Zehr — September 29, 1999 6 min read

The Texas graduation exam, one of the country’s best-known high-stakes assessments, is being put to a test that could have national repercussions.

In a trial that began last week, a federal district court in San Antonio is hearing arguments that the exit exam of the Texas Assessment of Academic Skills violates the constitutional and civil rights of black and Hispanic students.

The plaintiffs, who are being represented by the Mexican American Legal Defense and Educational Fund, are asking U.S. District Judge Edward C. Prado to strike down the test as a graduation requirement.

The outcome of the trial, which is expected to last four weeks, could set a new legal precedent.

Across the United States, high school exit exams are now in effect or scheduled to be implemented in 26 states.

“It has real, serious implications for graduation tests across the country,” said Robert M. Hauser, a sociology professor at the University of Wisconsin--Madison and the chairman of a congressionally mandated study of high-stakes testing issued this year by the National Academy of Sciences.

“It’s an important case,” agreed Jay P. Heubert, an associate professor of education at Teachers College, Columbia University, and the director for the testing study.

“Although this case is aimed primarily at the graduation test, it could have implications for [student] promotion as well,” Heubert said.

In Texas, students first take the exit exam in the 10th grade and have eight chances to pass it before they leave school.

The test contains three parts--reading, writing, and math--and is designed to cover what students should have learned by the end of 9th grade. If students fail any of the sections, they fail the test, but only need to be retested on the part that they failed.

The exit exam is part of TASS, the 5-year-old program that tests students, starting in grade 3, to assess basic skills. By grade 8, students are tested in reading, math, writing, science, and social studies.

Education and testing experts say the lawsuit, GI Forum, et. al. v. Texas Education Agency, et. al., could have an impact on graduation exams in other states.

“There are so many states that have put in place exit exams, so they will pay attention,” said Kathy Christie, a policy analyst for the Education Commission of the States in Denver. “You do have to be careful and do it right.”

Legal Points

Albert H. Kauffman, the regional counsel for MALDEF and the lead lawyer for the plaintiffs, argues in court papers that the Texas test violates the due process clause of the 14th Amendment of the U.S. Constitution and Title VI of the Civil Rights Act of 1964 because minority students are “disproportionately negatively affected” by the exam. Title VI prohibits racial discrimination in programs that receive federal funds.

Mr. Kauffman, who argued a lawsuit filed by MALDEF in the 1980s that forced Texas to revamp the way it finances education, writes: “Texas has not met national standards in the development and use of these tests, and Texas could have used significantly less discriminatory means to meet the state’s objectives.”

He points out that the failure rate among blacks and Hispanics was more than twice that of whites in February 1997--51 percent for blacks, 49 percent for Hispanics, and 19 percent for whites.

Even in an analysis of scores that excluded students who are poor, learning English, deemed at risk, or in special education programs, 36 percent of blacks and 24 percent of Hispanics failed the test, compared with just 8 percent of whites.

The plaintiffs include the Hispanic advocacy groups GI Forum, started by Mexican-American veterans of World War II, and Image de Tejas and seven Hispanic and black students who were denied high school diplomas because they failed the TAAS test.

Geoffrey Amsel, the lawyer representing Texas Education Agency, said in court papers that the TAAS system has the reverse effect from what MALDEF is claiming: “The TAAS test is an instrument of positive change for the very segments of the high school population to which the named plaintiffs belong.”

In addition, the agency has told the court that students have ample opportunities to take the test and to receive any needed remedial help.

Moreover, schools are rewarded or penalized depending on how all groups of students perform on the assessment. And the gap in test scores between minority students and white students continues to narrow, the state says.

Past Lawsuits

The outcome of the Texas lawsuit could change the legal precedent on state exit exams set in 1983 by a federal case in Florida, experts say.

In the Florida suit, Debra P. v. Turlington, filed in 1978, African-American students who had failed the state’s exit exam and were denied high school diplomas contended that the test was racially biased, was given to students without adequate notice, and was intended to assign blacks to segregated remedial classes.

Federal courts ultimately supported the state’s implementation of the exam. But they delayed it to ensure that students were no longer in the system who had attended racially segregated schools and perhaps not had exposure to the academic content on which they would be tested. The court lifted its injunction against the test in 1983.

Debra P. is considered to be the leading case regarding challenges to the use of high-stakes tests in the K-12 educational setting,” said Arthur L. Coleman, the deputy assistant secretary in the office for civil rights in the U.S. Department of Education.

“It raised issues including discrimination under civil rights laws as well as under the Constitution, which were centrally due process issues,” he said.

Mr. Coleman declined to comment specifically on the Texas case.

While several other federal court decisions since Debra P. have addressed similar issues, “there has been no wholesale elimination of a test as long as steps were taken to ensure that the appropriate supports were in place to guarantee fair educational opportunity for students,” Mr. Coleman said.

The OCR currently is investigating complaints of alleged discrimination in high-stakes assessments in Nevada and North Carolina, he said.

In 1997, the office resolved a complaint that the TAAS test discriminated against students on the basis of race and national origin by upholding the test but requiring annual meetings with state officials to monitor the situation, Mr. Coleman said. The resolution included an agreement by the state to ensure that students would be provided with the necessary instruction to give them a fair chance to pass the test.

If anything, said Mr. Heubert of Teachers College, the public is even more supportive now of large-scale tests than when Debra P. was decided.

But Mr. Heubert said he believes MALDEF has presented some strong evidence for a discrimination case in showing the disparity between test-failure rates between minority and white students, particularly because Texas requires a passing score on the exam for graduation.

“There are threats to validity, ways that high-stakes tests have been used improperly,” Mr. Heubert said. “Depending on how seriously the court takes those concerns, the court could come out either way.”

Under Title VI of the Civil Rights Act, Texas will have to show that the use of the TAAS exit exam is educationally necessary, Mr. Heubert said.

The state education agency is confident that its test will stand up to the challenge, said Debbie Graves Ratcliffe, a spokeswoman for the agency. But, she added, “we’re taking the case seriously. ... MALDEF has a great lawyer challenging the test.”

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