High Stakes Testing of Students



Shelley Mack



spring 2000



summary



The cases below are, I think, fairly self-explanatory. Detailed explanations of facts are included in some places because these cases seem to turn so heavily on the facts and the efforts made by the various defendants. Some general conclusions can be put forward first, however (although these are undoubtedly not the only conclusions that can be drawn).



The claims brought against high-stakes tests are pretty similar in each case. Typically, plaintiffs were alleging violations of the Fourteenth Amendment Equal Protection Clause, Fourteenth Amendment procedural and substantive Due Process guarantees, Title VII, Title VI, and sometimes the EEOA. As one would imagine, the Title VII claims seem to have been most successful (presumably because plaintiffs need not show discriminatory intent). Plaintiffs in one case (Triplett) alleged violations of the Hatch Act, right to privacy, parental rights, and free exercise of religion; the court fairly summarily dismissed each claim.



There are equal numbers of cases upholding the validity of high stakes tests (Debra P. I, Anderson v. Banks, Crump, Rankins) and striking them down as unconstitutional (Debra P. II, Williams, Triplett, G.I. Forum). It should be noted that no court has invalidated a high stakes test since 1994. Of course, there just aren't a lot of cases on the subject in general, so six years might not mean much. However, I think it's significant that the early high stakes testing cases relied so heavily on academic opportunities within school districts still under desegregation orders. Both Debra P. and Anderson v. Banks held that high stakes tests would be valid when the school system no longer served students who had attended school under the dual system, and the most recent statement on the issue in G.I. Forum indicates that the distinction between dual and unitary districts may be critical in the high-stakes testing arena.



Courts are essentially in agreement now that students have a property interest in their diplomas (G.I. Forum), although that interest doesn't extend to participation in the graduation ceremony itself (Williams).



There are seven factors that these cases turn to religiously in evaluating the validity of a high-stakes test. These citations aren't exhaustive, but I think these are the major themes:



1) DISPARATE IMPACT: Courts generally analyze this either by way of the EEOC's four-fifths rule or under the Hazelwood and Shoben standard deviation formulas. (G.I. Forum) If there's no disparate impact, there's probably no case. Although courts say that the EEOC Guideline is a rule of thumb rather than a strict requirement, only one decision found disparate impact in the absence of a four-fifths disparity - and that case involved suspicious behaviour on the part of the school board. Courts also take into account whether disparate impact was or should have been foreseen before the exam requirement was implemented. If it was or could/should have been, it weighs heavily against defendants. (Anderson).

2) VALIDATION STUDIES: Tests must be validated. This means they should be content valid (reflecting material actually taught in the curriculum), valid as to the particular school system they are to be used in (i.e. field tested), and valid with respect to the cut score (it should accurately predict whatever the school system is using it to predict). The keys in this category are studies and experts, and lots and lots of them. See Debra P., Anderson, Crump & G.I. Forum for lengthy discussions.

3) STATE INTERESTS: The state must have an interest, a justification for adopting the exit exam. Typically, defendant districts are pointing to remedial educational goals and motivational incentives to explain why they've turned to a high stakes test. And as in Debra P. and Anderson, the courts are buying it…

4) NOTICE AND IMPLEMENTATION (DUE PROCESS): Courts will examine how much notice was given before an exam was actually used as a diploma sanction. Debra P. said 13 months was too little and recommended 4 to 6 years (cited again in Crump), but that those latter numbers seem to have been proffered to coincide with the graduation of the last class that attended school under de jure segregation. Anderson indicates that two years notice can be sufficient. Courts will also be favorably impressed by districts that have extensive remedial educational schedules.

5) JUDICIAL DEFERENCE: Courts are definitely paying lip service to state's rights, local control over the educational system, and the need to defer to the expert judgment of professional educators. In no case, however, was this argument decisive. It seems to have been more frequently invoked to precede paragraphs where the court gives no deference at all. Given the current composition of the Court, however, judicial deference may become more important if one of these cases gets heard.

6) REMEDIATION/RETAKES: Courts pay keen attention to the kinds and amounts of remediation offered to students who fail to pass the exam on the first try. Courts are also careful to note how many times students may retake the exam. The better the remediation plan and the more opportunities students have to pass the test, the less successful plaintiffs seem to be. See Debra P., Rankins, and G.I. Forum for explanations.

7) NO HOMEMADE TESTS: Courts look askance at districts or states that try to concoct their own exam without the assistance of professional test developers. Debra P. is a case in point, and Anderson and G.I. Forum make much of the fact that defendants relied on reputable test developers for their exams.







Brady v. Turlington, 372 So.2d 1164 (Fla. Dist. Ct. App. 1979): The court held that a Florida State Board of Education rule requiring students to pass a State Student Assessment Test before being awarded a diploma was not illegally retroactively applied. Brady, 372 So.2d at 1165. The court also held that the rule did not irremediably disadvantage students who failed the exam, since they were permitted to retake it. Id. The court found the rule to comport with due process requirements. Id.



Debra P. v. Turlington, 474 F. Supp. 244 (M.D. Fla. 1979), aff'd in part and vacated and remanded in part, 644 F.2d 397 (5th Cir. 1981), reh'g en banc denied, 654 F.2d 1079 (5th Cir. 1981), aff'd, 564 F. Supp. 177 (M.D. Fla. 1983), aff'd, 730 F.2d 1405 (11th Cir. 1984). Summary: Plaintiffs challenged the Florida Functional Literacy Examination ("SSAT II"), claiming its use to deny them high school diplomas as unconstitutional. Debra P., 474 F. Supp. at 246. Specifically, plaintiffs alleged that 1) the SSAT II was racially biased in violation of the Fourteenth Amendment equal protection clause; 2) that plaintiffs were provided inadequate notice of the graduation requirements and inadequate time to prepare for the exam, both in violation of Fourteenth Amendment due process guarantees; and 3) that the SSAT II was used to resegregate Florida public schools, in violation of the Fourteenth Amendment, Title VI, and the EEOA, by instituting remedial classes for those who failed the exam. Id. at 246-47. Plaintiffs sought a declaratory judgment, an injunction against use of the exam as a graduation requirement, an injunction to purge their academic records of any note of their failure on the exam, and an order prohibiting use of SSAT II exam results as a means of assigning students to remedial courses. Id. at 247. The court granted declaratory and injunctive relief and enjoined use of the exam as a graduation requirement until the 1982-83 school year. Id. at 269.

Facts: In 1978, the Florida legislature amended the Educational Accountability Act to require that students pass the SSAT II in addition to completing the required number of units in order to be awarded a high school diploma. Id. at 247-48. Students who completed the requisite number of credits but failed to pass the exam would be awarded only a certificate of completion. Id. at 248. Upon the exam's first administration, 78% of African American students failed one or both sections (math and verbal) of the exam; only 25% of white students fared so poorly. Id. On the second administration one year later, 74% of African American students retaking the test failed one or both sections. Id. at 248-49. One year later, 20% of African American seniors failed the test on a third retaking compared to only 1.9% of white graduating seniors. Id. at 249. African American students were ten times more likely to fail the exam than their white peers. Id.

The court emphasized that both academic and economic consequences flowed from denial of a high school diploma, noting that only 10% of the State of Florida's labor force lacked a diploma and that these employees were trapped in menial positions. Id. A certificate of completion is not considered a diploma for employment purposes, and admission to a state university is predicated upon receipt of a high school diploma rather than a certificate of completion. Id. Failing students were stigmatized and branded functionally illiterate. Id.

The parties stipulated as to the existence of a dual school system in Florida stemming from de jure segregation between 1885 and 1967. Id. at 250. Both students and faculty were completely racially segregated, and African American schools were inferior in terms of physical facilities, libraries, curricula, duration of the school day and year, supplies, and textbooks. Id.

Almost all of the plaintiffs attended segregated and inferior schools at the beginning, most formative stage of their academic careers. Id. at 251-52. Even after the dual system was abolished, African American students were subjected to disparate busing schedules, racial stereotypes, disproportionate termination of African American administrators and principles, and higher suspension rates. Id. at 252. Florida did not begin to remedy these lingering effects until 1977, the first year of use of the SSAT II. Id.

Discussion: Plaintiffs alleged first that the SSAT II was unreliable, invalid and not correlated to the curriculum, that the exam was racially biased, and that passage of the exam was not required in private schools. Plaintiffs claimed that the higher African American failure rate was a foreseeable and probable consequence of amendment of the Act. Id. at 250-51. The court found that the vestiges of the inferior elementary education plaintiffs had received continued to linger and affected their performance on the exam. Id. at 252. While disproportionate impact is not the sole touchstone of a racial discrimination inquiry, it remains a factor to be considered. Id. The court found that the SSAT II had a clear disproportionate impact on African American students, and noted that Florida intended to discriminate against African American children between 1967-1971 (when the current graduating class was in school under the dual system). Id. at 252-53. Defendants acknowledged that they anticipated high African American failure rates after the SSAT II was implemented, and admitted that part of the failure rate was due to the prior de jure system. Id. at 253. The court held the defendants to have intended the natural, reasonably foreseeable consequences of their actions. Id. at 253. Adverse consequences, the court found, were clear to the State Board of Education at the development and implementation stages of the SSAT II. Id. at 254. Although the court conceded that the state had a legitimate interest in adopting an exam to measure performance on state-wide objectives and to identify deficiencies for remedial purposes, it found the timing of its implementation objectionable because of its harsh consequences for graduating seniors. Id. Plaintiffs, however, failed to show that the exam was adopted "because of" disproportionate African American failure rates rather than "in spite of" them, and thus failed to present proof of present intent to discriminate. Id. The court still found, however, that past purposeful discrimination was perpetuated by the SSAT II and the diploma sanction even in the absence of intent to discriminate. Id. at 254-55. The court stressed that "failure premised on equal educational opportunities, unaffected by the dual school system of the past is of a completely different genre than that presented in the instant case." Id. at 256. The court held that the SSAT II would be permitted as a diploma requirement once a unitary system had been attained, without remaining vestiges from the prior dual system. Id. at 257. Use of the SSAT II as a diploma sanction for students who had attended the de jure segregated schools, however, was enjoined as violative of the Fourteenth Amendment, Title VI, and the EEOA. Id.

The court turned next to the development and validity of the SSAT II, noting that stigma associated with the term "functional illiterate" caused substantial harm to plaintiffs. Id. at 258. The court held that validity of the test would turn on whether it was a "valid and reasonable measure for dividing students into classifications" for the purpose of graduation and whether the exam "reasonably or arbitrarily evaluates the skill objectives established by the State Board of Education." Id. at 260. The court found that the definition of functional literacy given by the DOE and State Board of Education comported with the exam and that the skill objectives of the SSAT II were adequately evaluated by the test questions. Id. at 260-61. The court held the SSAT II to bear a rational relation to a legitimate state interest, thus rendering it constitutional. Id. at 261.

The court also considered whether the SSAT II employed racially biased test questions, noting that professional testing companies had reviewed the questions for racial and/or ethnic bias. Id. The court found no unconstitutional racial or ethnic bias in the exam questions. Id. at 262.

The court held that since public school students were prohibited from attending private schools (where the SSAT II was not administered) because of class rather than race, no suspect classification was implicated and the decision to apply the SSAT II diploma sanction to public schools alone passed rational basis scrutiny. Id. at 262-63. The state, it held, has a stronger interest in more stringently evaluating the schools it finances and directly controls. Id. at 263.

The court turned next to the notice component of plaintiff's due process claim. Id. Although teachers learned of the objectives of the SSAT II four months prior to its first administration, only two months were available for instruction. Id. Only 13 months of instructional time was available between the first and last administrations of the exam, during which time remedial classes were held for students who had failed. Id. at 264. The court observed that instruction in previous years took place without the specific objectives of the SSAT II in mind and without any diploma sanction. Id. Students, the court held, should have been warned at the time they were taught functional literacy skills that such skills must be mastered before they would be awarded diplomas. Id. The court characterized Florida's program of instruction in basic and functional skills and testing for mastery and deficiencies as a "step forward," but the implementation schedule for the exam was simply too severe. Id. at 265. Had the SSAT II been used solely for remedial purposes, it would have passed constitutional scrutiny, but students had a due process right to timely notice of the exam when used to deny them diplomas. Id. Although the court acknowledged that the judiciary should refrain from intervening in educational matters whenever possible, the instant case challenged a legislative enactment rather than the school's evaluation of a student's academic performance. Id. at 266. Students in the plaintiff classes, the court determined, have a property right in graduation with a diploma if they meet all graduation requirements save the SSAT II and complete the requisite number of units. Id. Plaintiffs also have a liberty interest in avoiding the stigma associated with the label of "functional illiteracy." Id. For notice of the exam to comport with due process requirements, four to six years should pass between announcement of the SSAT II's objectives and the implementation of the diploma sanction. Id. at 267.

The court addressed plaintiff's final claim, that implementation of the diploma sanction perpetuates the effects of prior de jure segregation and resegregates students in violation of the Fourteenth Amendment, the EEOA, and Title VI. Id. at 268. Plaintiffs alleged that defendants foresaw that a substantial number of African American students would fail the exam and be placed in disproportionately African American remedial classes. Id. The court stressed that although African American students were disproportionately represented in the remedial classes, pupil assignments in remedial courses were not static and students attended remedial courses for only a small proportion of the school day. Id. Any isolation and stigmatization of African American students in the remedial program was no greater than necessary to remedy their educational deficiencies. Id. The court found no constitutional or statutory violation due to use of the SSAT II to assign students to disproportionately African American remedial classes. Id.

The court ordered declaratory and injunctive relief, but specified that Florida could resume using the SSAT II as a diploma sanction once all students who had attended school in the segregated system had graduated and once sufficient time (4-6 years) had passed to give students adequate notice and time to prepare for the exam. Id. at 269. The SSAT II could be reinstituted as a graduation requirement for the 1982-1983 school year, and could be administered in the interim for the purposes of assigning students to remedial programs. Id.

On appeal in the Fifth Circuit, the Court vacated the district court's ruling that the SSAT II could be used in the 1982-83 school year and remanded for findings of fact to determine whether the SSAT II covers subjects actually taught in the curriculum. Debra P., 644 F.2d at 400. If the exam covers material not actually taught, the court reasoned, it violates the Fourteenth Amendment equal protection and due process clauses. Id. at 402, 406. The court emphasized at length that the federal courts should refrain from intervening in state educational policy except where necessary to protect constitutional rights. Id. at 403, 406. The court reiterated the lower court's holding that students have a legitimate expectation that they will receive a diploma for attending school for the required number of years and passing the required courses, and that this expectation rises to the level of a constitutionally protected property interest. Id. at 404. The court affirmed the district court's holding that the implementation schedule for the SSAT II violated due process rights and may have been fundamentally unfair if it covered material not actually taught in Florida schools. Id. Defendants stipulated during pre-trial proceedings that the State Board of Education had made no attempt to learn whether all the minimum performance standards tested on the SSAT II were actually being taught in public schools, and did not conduct any formal studies to this end. Id. at 405. The court noted that "we do not question the right of the state to condition the receipt of a diploma upon the passing of a test so long as it is a fair test of that which was taught." Id. at 406. The court affirmed the portion of the opinion below which found a rational relation between the exam and a valid state interest, but conditioned that affirmance upon a finding on remand that the exam covered material actually taught in Florida public schools. Id. The Fifth Circuit also affirmed findings below that the exam was not racially biased, did not violate due process or equal protection by only making it a graduation requirement in public schools, and could be used as a remedial tool, but was unconstitutional to the extent that it punished African American students for educational deficiencies created by de jure segregation. Id. at 407-08. If the material tested on the SSAT II was in fact taught in the classroom, no violation of Title VI would be found. Id.

The Fifth Circuit later denied a request by another member of the court for a rehearing en banc. Debra P., 654 F.2d at 1079. The court clarified its earlier opinion, stating that its holding 1) did not forbid a state from providing quality education; 2) did not declare that the purpose of public education is not to educate but to award diplomas; 3) did not hold that African American children were not prepared for quality education; 4) did not order any specific educational requirements for public schools; 5) did not interfere with the public school curriculum; and 6) did not suggest that African American and white students receive disparate treatment. Id. The court stressed that it did not find a constitutional entitlement to a diploma in the absence of an education, but that it did hold that 1) a diploma has a unique value in the job market; 2) that the State requires school attendance for children of certain ages; 3) that the State has a public school system; 4) that if attendance and mandatory course requirements are met, a diploma will be conferred; 5) that the State thus creates mutual expectations between the state and students; 6) that if a student complies with the aforementioned requirements he has a property right in a diploma; 7) that any exit examination imposed as a graduation requirement must be a fair test of material actually taught; 8) that the State has a legitimate interest in the quality of public education; and 9) that the State may use an exam such as the SSAT II for remedial purposes and as a diploma sanction, provided all requirements above are met. Id. at 1079-1080.

The dissenting judges argued that the due process clause created no constitutionally cognizable property interest in a diploma (students have only a property interest in a quality education, not academic certification). Id. at 1081. Public schools may modify their graduation requirements to further a legitimate interest in quality education even if some material tested is not explicitly taught in the classroom. Id. at 1082. Students have no property right, the dissenters maintained, in academic success, and have only a conditional right to a diploma. Id. The dissenters emphasized that the exam covered only basic, fundamental skills and that the State has a legitimate interest in ensuring that its students receive a quality education. Id. They feared that the State would never be able to meet the onerous burden of proof to show that every skill tested on the SSAT II was taught to every student in every classroom across the state. Id. at 1083. The dissenters also disagreed from the court's equal protection analysis, stating that "if Brown stands for anything, it is that in the educational arena a state must treat black and white students equally…it is inexcusably iniquitous to compel the state to certify as academically proficient an avowedly functionally illiterate minority student based on the institutionalized assumption that he cannot be expected to achieve on the same level as white students." Id. at 1084-85. African American students have a right to an equal education, and the SSAT II was instituted to ensure that they receive it; "the wrong [of inferior education] has been suffered and now it must be corrected. It is no answer to cover the fundamental hurt with an empty equality of form that ignores the underlying substance." Id. at 1085. Academic requirements should properly be left to the states to establish. Id. at 1088-89.

On remand, the district court considered whether material tested on the SSAT II was actually taught in public schools and examined the effect of vestiges of de jure segregation upon graduating African American students. Debra P., 564 F. Supp. at 179. The court relied on the testimony of the state's three expert witnesses in holding that the SSAT II was instructionally valid and tested material actually taught in the curriculum. Id. at 181-82, 186. Students who failed the SSAT II in the tenth grade could still master the skills tested before graduation. Id. at 182. The court refused to require the state to provide evidence following each child throughout his/her school career to ensure that each skill was actually taught, and accepted instead the conclusions of experts and survey results. Id. at 183-84. The state, it held, need only establish the exam's instructional validity by a preponderance of the evidence and need not meet any heightened evidentiary standard. Id. at 184. The court held the students' property interest in receiving a diploma to be roughly equal to the state's interest in ensuring that each public school student receives a quality education. Id. The court noted that teachers and administrators had been aware for four years of their obligation to teach students the skills required by the SSAT II and that state-approved instructional materials were available which had been screened to ensure that they implemented the curricular objectives of the exam. Id. The state also provided districts with additional funding for remedial programs, tracked the students enrolled in remedial courses, required districts to establish pupil progression plans to prevent social promotion, and established uniform testing standards for students in grades 3, 5, 8, and 11 to monitor basic skill comprehension. Id. at 185. Survey results showed that districts had included the SSAT II skills in their curricula and teachers reported that they included such skills in their instruction. Id. The court found it significant that students were given five chances to pass the exam before graduation, were offered remedial instruction if they failed, and were allowed to remain in school for an additional year in order to receive remedial instruction and eventually pass the exam. Id.

In addressing the vestiges issue, the court maintained that "if the disparate failure of blacks is not due to the present effects of past intentional segregation or if the test is necessary to remedy those effects, then the four year injunction entered in 1979 cannot be extended." Id. at 186-87. The court reiterated its earlier holding that vestiges of the de jure segregated system lingered between 1971 and 1979. Id. at 187. The court found that some vestiges continued to operate in 1983, but that the remaining effects were not so burdensome as to constitute a denial of equal educational opportunity. Id. Specifically, the court pointed to the fact that over 90% of African American students in Florida public schools had passed the exam and that African American students in counties employing African American administrators did no better on the test than their counterparts in counties where African American role models were not present. Id. Disproportionate rates of failure between white and African American students did not compel a different result; the court noted that vestiges could only be eliminated "to the extent practicable" and that they might not be eradicated "root and branch." Id. The court found no causal link between the disproportionate failure rates and vestiges of prior segregation, and stated further that even if such a link were present the defendants had shown that the SSAT II was essential to remedying such effects. Id. at 188. The court accepted expert testimony that notifying students of educational goals and sanctions would motivate them and stimulate them to succeed academically. Id. Students graduating in 1983 were never part of the dual educational system and had received constitutionally "equal" educational opportunities (Florida public schools had been physically unitary for twelve years). Id. at 189. The court found no violation of the EEOA, construed the test as an "affirmative step" towards eliminating remaining vestiges, and refused to extend the injunction to the 1983 graduating class. Id.

On appeal, the Fifth Circuit affirmed. Debra P., 730 F.2d at 1406. The court rejected plaintiffs' argument that the state should have been required to produce direct evidence of classroom activities and instruction, holding instead that proof of the content of the curriculum was sufficient. Id. at 1409. The court noted that the bulk of SSAT II instruction occurs in the later years of a student's school career, putting the present plaintiffs' instruction sometime after 1977 (when the test requirement had already been announced), and found it significant that the state had implemented extensive remedial programs. Id. at 1410. Even students who had already obtained a certificate of completion were permitted to take adult education classes and/or retake the SSAT II to receive their diploma. Id. at 1411. The court also emphasized that 90% - 99% of students statewide reported that they had been instructed in the skills tested on the SSAT II. Id. Instructional validity was also implied by the high SSAT II pass rates in the class of 1983. Before graduation, between 97.2% and 99.8% had passed both sections of the exam. Id.

The Fifth Circuit also affirmed findings below on the vestiges issue, reasoning that "the fact that 91% to 95% of the black students nonetheless pass the SSAT II is strong evidence that the vestiges do not cause blacks to fail the test." Id. at 1415. The court also found that remedial programs would help to remedy any remaining vestiges which affected the performance of African American students. Id. "The remarkable improvement in the SSAT II pass rate among black students over the last six years demonstrates that use of the SSAT II as a diploma sanction will be effective in overcoming the effects of past segregation." Id. at 1416.



Wells v. Banks, 266 S.E.2d 270 (Ga. App. 1980), rev'd sub nom., Anderson v. Banks, 520 F. Supp. 472 (S.D. Ga. 1981), rev'd in part on reh'g, 540 F. Supp. 761 (S.D. Ga. 1982), appeal dismissed sub nom., Johnson v. Sikes, 730 F.2d 644 (11th Cir. 1984). Plaintiffs asked the court to enjoin a county board of education requirement that they pass an exit examination testing mastery of ninth grade math and reading skills before being awarded a diploma. Wells, 266 S.E.2d at 271. The court declined to grant relief, finding no conflict between the county requirement and standards set forth by the State Board of Education and holding that the county had authority to impose graduation requirements in addition to those created by the state. Id. at 271-72. The court also rejected plaintiffs' contention that implementation of the diploma sanction violated Fourteenth Amendment due process and equal protection. Id. at 272. The court found that plaintiffs had not been denied their right to a public education and had been given adequate notice of the new graduation requirement. Id. The court also declined to find that plaintiffs had been denied equal protection although students in other counties throughout the state were not required to take and pass an exit examination in order to receive their diplomas; it was constitutionally sufficient that the exam was uniformly applied within the county. Id. at 272-73.

Anderson v. Banks was pending in federal court at the time Wells v. Banks was decided. Summary: The federal court reached the opposite conclusion, holding that the diploma sanction did not in itself violate the Fourteenth Amendment but that it could not be constitutionally imposed on students who had attended school during de jure segregation. The diploma requirement, as imposed, was held to violate Title VI and the EEOA, and although notice of the sanction was constitutionally adequate, the exam still violated substantive due process in the absence of a showing that materials tested were actually taught in school.

Facts: The Tattnall County School District (TCSD) imposed a diploma sanction in 1978, requiring all students to perform at ninth grade level on the CAT in order to be awarded a diploma. Anderson, 520 F. Supp. at 476. The de jure system of segregation, which required separate schools for African American and white students in the TCSD, was abolished in the 1970-71 school year. Id. at 478. Even after the dual system was abolished, however, busing remained unequal, no remedial programs were offered to African American students leaving inferior schools, and no special efforts were made to ensure the success of integration. Id. at 480. TCSD instituted an achievement/ability tracking system the same year that schools and classrooms were integrated (1970-71), and this system quickly created racially identifiable classrooms. Id. Experts testified that in the TCSD, IQ scores and race were not related and that African American and white children began their school careers with equal abilities. Id. at 481. Given these findings, the court found the disproportionate number of African American children in lower tracking groups inexplicable and concluded that African American students in the TCSD had not been classified appropriately. Id. at 481-82. TCSD records showed that African American students had been placed as many as three classes below their white peers with the same scores. Id. at 482. Students in lower tracking groups covered the same material as those in higher groups without the benefit of any remedial education. Id. The court found no basis for concluding that the TCSD tracking system was beneficial to students. Id. at 485. At the time the diploma sanction was instituted, there were no remedial programs and no procedures for identifying students not performing at their grade level. Id. The court found no evidence that the diploma sanction was adopted with discriminatory intent or that defendants actually foresaw that the policy would work to the disproportionate disadvantage of African American students. Id. at 486. School Board members testified that they thought the diploma sanction would motivate students and improve their performance. Id. The court concluded, however, that had TCSD administrators considered the possible racial impact of the policy in light of the TCSD's history of segregation, disproportionate impact could have been foreseen. Id. Parents and students were notified of the new graduation requirement two years before the diploma sanction was imposed. Id. Students who fail to perform at ninth grade level on the CAT by graduation were allowed to retake the exam and enroll in further course work. Id. Statistical analysis showed that the diploma sanction had a clear racial impact and that as the number of African American children in a student's class rose, the less likely the student was to pass the CAT. Id. at 487. The average of the percent of African American children in a student's class was the most accurate predictor of that student's CAT score, and the racial composition of a child's class alone accounted for 48% of the variance in scores on the CAT reading section and 33% of the variance in scores on the math section between African American and white students. Id. at 487-88. The court declined to require defendants to conduct a local validation study on the CAT in Tattnall County, since the exam was a national norm referenced test. Id. at 490.

The court rejected plaintiffs' assertion that the CAT test questions were racially biased. Id. at 490-91. Plaintiffs also challenged the diploma sanction on the grounds that the CAT failed to test what was actually taught in the TCSD. Id. at 491. The court noted that defendants did not show that the questions asked on the CAT could be traced to the TCSD curriculum, but acknowledged that such a showing would be extremely difficult to make. Id. The court also noted that students in remedial programs do not complete the full curriculum and that tests were often misgraded (although such errors did not result in the denial of a diploma to any student). Id. The court also questioned the reliability of the exam, calling the results of a retest given shortly after the original exam "plainly bizarre," but eventually concluded that the deviation in scores could be explained by assuming that some students failed to perform to their potential on the CAT and were motivated to apply themselves to the test and their remedial courses after the diploma sanction was implemented. Id. at 492.

CAT scores in the TCSD improved after the institution of the diploma sanction, although the exam still disproportionately disadvantaged African American students. Id. The court credited testimony by TCSD administrators and instructors who stated that the diploma sanction motivated students and that students overwhelmingly supported the requirement, and concluded that the diploma sanction generated some beneficial effects. Id. at 492-94.

Discussion: The court first addressed plaintiffs' claim that the diploma sanction itself violates the Fourteenth Amendment. Id. at 498. The court required plaintiffs, in order to prevail, to show that the sanction has both a racially discriminatory impact and a discriminatory purpose. Id. The court acknowledged the racially disproportionate impact of the policy, but refused to hold that the TCSD instituted the diploma sanction with a discriminatory purpose. Id. at 498-500. The court concluded that foreseeability alone was not enough to establish a Fourteenth Amendment violation, but left room for such a violation to be found if a clearly foreseeable impact were unexplained by any permissible rationale. Id. at 499. The court allowed plaintiffs to introduce historical evidence, but concluded that the diploma sanction was adopted without racial animus and that although disproportionate impact was foreseeable, it was not actually foreseen. Id. The court also held improved student performance to be a legitimate goal for the TCSD to pursue, and ultimately found no Fourteenth Amendment violation. Id.

The court next addressed plaintiffs' contention that the diploma policy, considered in light of the former dual system under de jure segregation and the subsequent institution of a tracking system, violated the Fourteenth Amendment as a perpetuation of the prior system of segregation. Id. at 500. The court reiterated that while racial makeup of a student's class was a fairly accurate predictor of CAT success, that student's IQ scores were not. Id. The court also noted that the TCSD tracking system was adopted "on the heels of the dissestablishment of the dual system," and "did not operate fairly." Id. African American students subjected to the diploma sanction attended segregated schools during the crucial early years of their school careers. Id. The court stated that a district converting from a segregated system has "an affirmative duty to convert to a unitary system in which discrimination is to be eliminated root and branch...if present facially neutral actions serve to perpetuate past intentional discrimination, there is no requirement that intent be proved again." Id. So long as the poor performance of African American students on the CAT can be attributed to their early education in the segregated system, the court held, the diploma sanction cannot be constitutionally imposed upon them. Id. The court also invalidated the TCSD's tracking system, citing precedent for the proposition that facially neutral tracking resulting in racially identifiable classrooms may not be permitted until the district has operated for several years as a unitary system. Id. at 501. The court, in making this determination, found it important that the tracking system was established the same year that the dual system was abolished, that the system was not administered fairly (students were misclassified), and that no remedial programs were offered in lower levels. Id. The court still declined to require plaintiffs to show, before reinstituting their tracking system at a later date, that any underachievement of African American students is due to factors other than the prior dual system. Id. at 502. The court refused to equate the racially identifiable tracking system to a dual system of segregation, saying that "surely the school district cannot be locked into a system of social promotion until 1992 when no member of the graduating class will have been exposed to discriminatory tracking." Id. at 502-03.

The court held that the diploma sanction could not be imposed until 1983, when graduating students would not have been exposed to the dual system. Id. at 503. Defendants would be allowed to reinstitute the diploma sanction in 1983 if they could then show that the educational benefits of the policy outweighed any "lingering causal connection between the discriminatory tracking system and the imposition of the diploma sanction." Id. Since the court found that the diploma sanction violated the Fourteenth Amendment, it also held the policy to violate Title VI and the EEOA. Id.

Turning next to plaintiffs' due process claims, the court declined to consider plaintiffs' allegations under procedural due process. Id. at 504-505. Instead, plaintiffs claims were considered under substantive due process analysis. Id. at 505. The court stated that notice of the diploma sanction would only be constitutionally inadequate to the extent that it rendered the policy unreasonable, and noted that courts generally afford discretion to educational institutions to create their own graduation requirements. Id. The court found substantive due process principles to be satisfied in light of the TCSD's two year notice period, its policy of allowing students to retake the test, the motivational value of the exam, and the TCSD's provision of remedial classes to students who failed. Id. at 505-06. Debra P. was distinguished on the grounds that 24, rather than 13, months notice was given, remedial courses were provided, and the TCSD encountered none of the coordination problems present in the state of Florida after implementation of the SSAT II. Id. Plaintiffs, the court ruled, failed to meet their burden of showing that the institution of the diploma sanction was arbitrary and capricious. Id. at 506. The court approved the TCSD's desire to improve student performance as a legitimate goal justifying the adoption of a diploma sanction and held as reasonable the requirement that students perform at ninth grade level or better in order to graduate. Id. The court relied on the fact that "the CAT is not a hastily constructed vehicle, but rather a test instrument constructed with the utmost care." Id. at 508. The court also found the success of the CAT in motivating students to achieve their potential as sufficient to prove the policy's rationality. Id.

The court also dealt with Debra P.'s requirement that the exam test material actually taught in the TCSD. While defendants' experts did not determine whether all the material tested on the CAT was actually taught in the TCSD, they did stipulate that any recognized standard curriculum would teach such material. Id. at 508-09. The court held that the TCSD had failed to meet its burden of proof on this issue. Id. at 509.

The court granted defendants' petition for rehearing on the issue of whether the material covered on the CAT was actually taught in the TCSD. Anderson, 540 F. Supp. at 761. Defendants argued that they hadn't met their burden of proof because they were not aware that they bore the burden; the Fifth Circuit had only decided Debra P. after the trial in Anderson and while the matter was under advisement. Id. If defendants, upon rehearing, were found to have met their burden of proof, use of the CAT as a diploma sanction would not be violative of substantive due process requirements. Id.

Defendants submitted a curriculum study which concluded that the CAT's category objectives were included in the TCSD curriculum, and teachers and principles testified that the materials upon which the study was based were actually taught in TCSD public schools. Id. at 762. The court accepted this evidence as establishing defendants' prima facie case that the CAT was a fair test of material actually taught in TCSD public schools. Id. Plaintiffs challenged this analysis, alleging that the CAT differed from material taught in schools in terms of readability, passage type, and question complexity. Id. Plaintiffs' experts testified that the readability of CAT passages was more difficult than the readability of practice passages used in the TCSD curriculum, that the passage types on the exam were more technical, expository and difficult than the passages used in remedial reading classes, and that the CAT vocabulary questions were more complex than the practice questions used in the classroom. Id. at 762-63. Defendants, however, called experts who had designed the CAT to testify that the standardization process obviated plaintiffs' concerns. Id. at 763. The court agreed with defendants' experts, concluding that the "difficulty, readability and complexity of the questions were subsumed in the norming process." Id. Plaintiffs also attempted to infer from statistical evidence of performance on particular questions that students were never exposed to parts of the curriculum, but the court reasoned instead that students simply may have failed to master some of the more difficult concepts tested on the CAT. Id. Remedial courses, the court determined, better prepare students for easier exam questions, but "it is a far cry from recognizing this fact to concluding that use of CAT 19 is constitutionally unsound because the students were not taught the material contained therein." Id. at 764. The court held that the material tested on the CAT was contained in the TCSD curriculum and that the curriculum was actually being taught in the classroom. Id.

Plaintiffs also alleged, based on statistical evidence, that students made greater score gains on the CAT if they were not enrolled in remedial classes. Id. The court, however, concluded the opposite: that the remedial program was a success and that students who took remedial courses and supplemented them with regular courses outperformed their peers who were only enrolled in the remedial program. Id.

The court distinguished Debra P., noting that while the state of Florida had made no attempt to determine whether materials on the SSAT II were actually being taught, TCSD administrators performed a "meticulous correlation." Id. at 765. The court recognized the possibility that students performing below grade level throughout their school career might not have been exposed to the entire curriculum, but declined to require the district to show that their academic evaluative decisions were consistent with the requirements of substantive due process. Id. The court ruled that although defendants bore the burden of proof to show that the CAT was a fair test of materials actually taught, deference would be given to the administrators' decisions when that evidence was reviewed. Id. "To require school officials to produce testimony that every teacher finished every lesson and assigned every problem in the curriculum would impose a paralyzing burden on school authorities…" Id. The court also emphasized the fact that TCSD officials relied on expert test construction rather than attempting to design an exam themselves (as did the state in Debra P.), and held that the defendants had met their burden of proof. Id. at 766. Plaintiffs' substantive due process claims were rejected. Id.

On appeal to the Eleventh Circuit, plaintiffs alleged that the court below erred in holding that the CAT diploma sanction could be reinstated in 1983 (arguing instead that it could only be reinstituted if defendants can show that the educational disadvantages of the tracking system had ended) and that the CAT covered material taught in the TCSD. Johnson, 730 F.2d at 647. Plaintiffs also claimed that the court below misapplied Debra P.'s test for determining whether a diploma sanction comports with due process requirements. Id. The court held that, in the absence of a district court ruling that the exam may be reinstated, the matter was not ripe for adjudication. Id. at 647-48.



Love v. Turlington, 733 F.2d 1562 (11th Cir. 1984): The court denied class certification to plaintiff, distinguishing the SSAT I from the exam at issue in Debra P. Love, 733 F.2d at 1563-64. The SSAT I, the court held, simply identified eleventh grade students in need of remedial instruction. Id. at 1564. Judgments as to whether students were eligible to receive a diploma were made by individual teachers rather than on the basis of performance on the SSAT I. Id.



Crump v. Gilmer Independent School District, 797 F. Supp. 552 (E.D. Tex. 1992): The court held that two plaintiffs had been unconstitutionally denied a high school diploma after failure to pass the Texas Assessment of Academic Skills Examination (TAAS). Crump, 797 F. Supp. at 553. Defendant's denial of a diploma to a third plaintiff was adjudged constitutional. Id.

Facts: The TAAS is a statewide competency examination evaluating student performance in mathematics and writing. Id. The TAAS had been used as a diploma sanction since 1985, but was only made a graduation (i.e. walking in the ceremony) requirement in 1991. Id. The two successful plaintiffs had completed all other requirements for a high school diploma, while the third plaintiff had not. Id. at 553, 557.

Discussion: In determining whether plaintiffs should be granted a temporary restraining order, the court found that plaintiffs would suffer irreparable harm if denied the opportunity to participate in their graduation ceremony. Id. at 553-54. Defendant was found to suffer no harm if the students were allowed to participate. Id. at 554. The court found that any marginal benefits that might accrue to the district by denying plaintiffs the right to participate in the graduation ceremony were outweighed by the tremendous risk of irreparable harm to plaintiffs. Id. The court also held that the public would not be harmed by allowing plaintiffs to participate in the ceremony, and noted that the Texas legislature determined that the public interest would be sufficiently served by denying students such as plaintiffs a diploma until they pass the TAAS. Id.

The court next considered the likelihood that plaintiffs would succeed on the merits of their claims. Id. It turned first to notice required under the due process clause, noting that the TAAS was first implemented in fall 1990 and made a graduation requirement in Fall 1991. Id. at 555. Remedial programs to help students pass the test began in the spring of 1991. Id. While the court recognized that the notice required varies by the circumstance of the case, similar implementation periods had been declared unconstitutional. Id. The court referred to Debra P., which held that at least four to six years notice should be given before implementation of a new diploma sanction. Id.

The court also required, following Debra P., that the district furnish proof that matters tested were actually taught in the curriculum. Id. at 556. It found that defendants were unlikely to be able to meet this burden of proof since teachers and administrators were not allowed to review the contents of the exam and no statute provided that the exam be based on the curriculum. Id. The court also stipulated that even if the curriculum "theoretically" includes the material tested by the TAAS, the district is still required to show that the material is actually taught. Id. Early indications, based on plaintiff and school district employee testimony, suggested that the TAAS covered material outside the curriculum. Id. The court held that plaintiffs had made a substantial showing of likelihood of success on the merits. Id.

The court granted relief to the two plaintiffs who had successfully completed all graduation requirements save the TAAS, and denied relief to the remaining plaintiff who had not completed all other requirements. Id. at 557.



Williams v. Austin Independent School District, 796 F. Supp. 251 (W.D. Tex. 1992): The Western District of Texas, when presented with a case factually identical to Crump, denied plaintiff's request for a temporary restraining order to prevent the AISD from denying him a diploma and the right to participate in his high school graduation ceremony. Williams, 796 F. Supp. at 252, 256.

Facts: Plaintiff failed the math portion of the TAAS by one point in April 1991. Id. at 252. He retook the exam in April 1992, failed once again, and received his test results in May 1992. Id. Texas statutes provide that students may retake the exam until they pass, at which time they will be issued a diploma. Id. Although Texas students have been subject to a secondary exit exam as a diploma sanction since 1984, the TAAS was only adopted as a requirement in fall 1991. Id. at 252-53. Plaintiff alleged that the TAAS was "substantially more difficult" than the exam previously used. Id. at 253.

Discussion: The court considered plaintiff's request under the traditional test for preliminary injunctive relief, and found that plaintiff was unlikely to succeed on the merits of his claim. Id. at 253-256. The court held that the legislature or the State Board of Education should be left to decide whether a student should be awarded a diploma, reasoning that "absent allegations of equal protection violations, decisions regarding educational requirements are not generally subject to federal court scrutiny under the Fourteenth Amendment." Id. at 253. Plaintiff made no equal protection claim and did not allege that the test was racially biased; rather, plaintiff argued that he was given inadequate notice of the diploma sanction and that the courses he took in high school failed to prepare him for the TAAS, constituting a due process violation. Id. Noting that plaintiffs in Debra P. were given only thirteen months notice of the exit exam requirement, the court found that Texas students have known of the diploma sanction for seven years and that both the high school guide and faculty notify students of the TAAS requirement. Id. at 254. The court held that the district did not violate due process requirements by switching to a more difficult exam, provided that students were (as here) given a fair opportunity to pass. Id. Plaintiff, the court ruled, was given adequate notice of the diploma sanction and was unlikely to prevail on the merits of his notice claim. Id.

The court also held that plaintiff was unlikely to succeed in his claim his high school failed to teach all the material tested on the TAAS. Id. The AISD presented "substantial evidence" that the high school provided and plaintiff took classes which adequately prepared him for the exam. Id. Although administrators and teachers had not seen the actual exam questions, they were provided with a booklet describing the thirteen objectives of the TAAS and 138 subcomponents, and course curricula had been tailored to teach these subjects. Id.

Plaintiff, the court held, suffered no irreparable injury by being barred from participating in his high school graduation ceremony since students have no constitutionally protected property interest in such participation. Id. at 255. Although students have a property interest in their diplomas, there is no constitutional right to receive this diploma at a specific ceremony. Id. Texas, the court ruled, had modified the property right in a diploma so that students only had a legitimate expectation in receiving one after completing all graduation requirements (including the TAAS). Id. Plaintiff would be awarded his diploma as soon as he successfully completed the exit examination. Id.

The court found that the threatened injury to both plaintiff and defendants was comparable. Id. Although Williams would not be allowed to participate in the ceremony, he remained eligible to receive his diploma at a later date. Id. The AISD, on the other hand, would not be greatly injured by allowing plaintiff to participate in the ceremony but had to right to decide not to allow such participation in order to send a message to students that the TAAS really is a fixed graduation requirement and to recognize those students who had successfully completed all graduation requirements. Id.

The court finally held that the public interest would be best served by allowing state educational institutions to make their own decisions about graduation requirements, since citizens of the state have a "right to expect that a high school graduate is educated and that a diploma is not a meaningless piece of paper." Id. at 255-56. Courts should only interfere when constitutional rights were clearly violated. Id. at 256.



Rankins v. Louisiana State Board of Elementary and Secondary Education, 637 So.2d 548 (La. App. 1994), cert denied, 635 So.2d 250 (La. 1994), cert denied, 513 U.S. 971 (1994): The Louisiana Court of Appeals found no equal protection violation in the imposition of the Graduation Exit Examination (GEE) as a diploma sanction and vacated a preliminary injunction issued by the lower court. Rankins, 637 So.2d at 555.

Facts: The GEE had been a graduation requirement since 1989 (for five years, by the time of the initiation of this suit). Id. at 550. The five plaintiffs, all high school seniors, had successfully completed all graduation requirements save the GEE. Id. Because they failed the exit examination, plaintiffs had not yet been awarded diplomas. Id. Plaintiffs sought and injunction requiring the district to award them diplomas and a declaration invalidating the Board of Elementary and Secondary Education's (BESE) diploma sanction. Id. The court below found that the GEE was unconstitutionally administered in violation of the equal protection clause and issued a preliminary injunction preventing defendant from withholding plaintiffs' diplomas. Id. at 550-51.

Discussion: Although the state legislature had not specifically authorized a graduation exit examination, the court held that BESE, under the state constitution and state statutes, had authority to establish one on its own. Id. at 551. The court found it relevant that the legislature had granted broad authority to the BESE and had not declared a contrary intent with respect to exit examinations. Id. at 552.

The court also rejected plaintiffs' claim that since private school, home-study and GED students were not required to pass the GEE before being awarded diplomas, the exam was unevenly administered in violation of the equal protection clause of the Fourteenth Amendment and the Louisiana Constitution. Id. The court held that under the First and Fourteenth Amendments and state statutes, the BESE had no authority to dictate graduation requirements in private schools. Id. at 552-53. The court also noted that Debra P. found no equal protection violation solely because the diploma sanction applied only to public school students, so long as the exit exam is "specifically tied to the curriculum." Id. at 553-54. In the instant case, the GEE was administered beginning in tenth grade; students could retake the exam until they passed, and remediation was offered to all students who failed to pass portions of the test. Id. at 554. Students remained eligible for remedial courses and further testing after they completed all other graduation requirements. Id. Students were allowed four opportunities to pass the science and social studies portions of the GEE, and six opportunities to pass the other sections. Id. at 554, n. 6. The court found that Debra P. mandated that home-study, GED and private school students be exempt from the diploma sanction since the state could not require an exit examination unless it tested material actually taught in school. Id. at 554. The court held that no suspect classification was implicated by distinguishing between public and non-public school students, and that under rational basis analysis the state had a valid interest in insuring the "minimum competency of persons obtaining a state diploma." Id. at 554-55. The GEE, the court found, bore a rational relationship to this legitimate goal. Id. at 555. The state, the court noted, has a stronger interest in regulating public education. Id.



Triplett v. Livingston County Board of Education, 967 S.W.2d 25 (Ky. App. 1998), cert denied, 119 S.Ct. 870 (Jan. 19, 1999): The court held that the Livingston County Board of Education (LCBOE) did not violate the Hatch Act, infringe upon the free exercise of religion, violate privacy, interfere with parental rights, deny due process right, or run afoul of statutory rights. The court also held that the exam itself was exempt from public disclosure requirements.

Facts: The state court below held that the Kentucky Instructional Results Information System (KIRIS) exam and the county exam requirement did not violate constitutional rights or federal law, but required that the exam be open for public review. Triplett, 967 S.W.2d at 27. KIRIS was developed by professional test authorities and the state of Kentucky for the purpose of evaluating school systems throughout the state rather than for evaluating individual student achievement. Id. School districts that performed well on KIRIS were financially rewarded, while districts which performed poorly were penalized. Id. at 28. At the beginning of the 1993-94 school year, the LCBOE did not require students to take KIRIS; on February 14, 1994, however, the LCBOE passed a resolution requiring all students to take the KIRIS exam before graduating or being promoted to the next grade. Id. Plaintiffs parents were allowed to review KIRIS upon request, and refused to let plaintiffs take the exam in 1994 because of religious objections. Id. As a result, one plaintiff was not awarded his high school diploma and the other was not promoted to the ninth grade. Id. Both plaintiffs had met all other requirements for graduation and promotion. Id. Plaintiff Chad Triplett requested that the court permanently enjoin the LCBOE from preventing him from graduating, and both plaintiffs sought declaratory relief establishing that they had fulfilled all requirements for graduation/promotion. Id. Plaintiffs also requested that they be allowed to review KIRIS in preparation for trial. Id. The court below granted defendant's motion for summary judgment and dismissed the petition after ruling that KIRIS should be open for public inspection. Id. at 29.

Discussion: The court first rejected plaintiffs' argument that they received inadequate notice of the examination, which they alleged operated as an ex post facto law; the court held that KIRIS required no advance preparation, that further notice would have been useless, and that plaintiffs were not prejudiced by the amount of notice given. Id. The court also held that the LCBOE had statutory authority to make KIRIS a requirement for graduation or promotion, since such requirement did not conflict with the Act (KERA) establishing KIRIS or with the Kentucky Board of Education's delegated authority under the KERA. Id. at 30.

The court moved next to plaintiffs' claims under the constitution and the Hatch Amendment. Id. Plaintiffs alleged that KIRIS offended their religious beliefs by establishing a religious or moral code, invading their religious and moral beliefs, discriminating on the basis of religion, and compelling students to select morally objectionable answers. Id. The court found that nothing in the exam compelled plaintiffs to reveal information protected under the Hatch Amendment and that students could refuse to answer factual questions about themselves in the test questionnaire without being penalized. Id. at 30-31. The court applied the Lemon test to plaintiffs' free exercise claim (requiring that the Act have a secular purpose, that its primary effect neither promote nor inhibit religion, and that it not foster excessive religious entanglement), and found that Lemon's requirements had been met. Id. at 31. The court noted the secular legislative purpose behind KIRIS and found that the exam did not foster or inhibit religion or constitute an excessive government entanglement. Id. It maintained that "not every state action implicating religion is invalid if one or a few citizens find such an action offensive." Id. The exam questions did not have the primary effect of advancing religion and did not ask students to affirm to deny any particular religious belief. Id. at 32. The court also noted that even if a governmental action "substantially burdens a religious practice," it may survive a free exercise challenge if it furthers a compelling state interest. Id. The free exercise clause was held not to excuse plaintiffs from their duty to comply with valid neutral laws of general applicability simply because the law may conflict with proscriptions or prescriptions of their religion. Id.

Since, however, plaintiffs alleged that the KIRIS requirement burdened the right of parents to direct the upbringing and education of their children, the court applied strict scrutiny to that additional claim. Id. The court noted that the state was charged with providing uniform and equal educational opportunities to children throughout Kentucky, and held that KIRIS was an appropriate device for measuring whether such equal opportunities were being provided. Id. at 33. The court found that the state's interest in improving its educational system through the KIRIS assessment exam was sufficiently compelling to support the LCBOE's KIRIS requirement, and acknowledged that measurements of educational equality would be hindered if students were excused from the exam. Id.

The court dealt finally with the Kentucky Open Records Act, and held that the court below had exceeded its authority to order that the exam, exempt from public inspection under the Act, be produced for open perusal. Id. at 33-34. The court held that the effectiveness of the exam would be diminished were the public allowed to inspect it, and that a special showing of necessity beyond simple curiosity had not been made. Id. at 34. The court also held that since KIRIS is not part of the regular curriculum and serves no instructional purpose, it does not fall within the Hatch Amendment's provisions for public inspection despite the fact that it was used by the LCBOE as a requirement for graduation and promotion. Id.



Gibson v. Waco Independent School District, 971 S.W.2d 199 (Tex. App. 1998): The court held that plaintiffs challenging the Waco Independent School District's (WISD) promotion policies need not exhaust administrative remedies before filing suit.

Facts: In 1997, the WISD adopted new promotion requirements for grades one through eight. Gibson, 971 S.W.2d at 200. The new policy required that students maintain a passing grade in each subject area and receive a satisfactory score on the Iowa Test of Basic Skills (ITBS, for first and second grade students) or the Texas Assessment of Academic Skills Test (TAAS, for third through eighth grade students). Id. Plaintiffs alleged that the promotion policy violated the equal rights and due course of law provisions of the Texas Constitution and violated statutory provisions of the Education Code and the Open Records Act. Id. Plaintiffs also alleged that the policy was adopted in violation of the Open Meetings Act, and asked for a temporary restraining order to prevent implementation of the policy, a temporary injunction, and a permanent injunction. Id. The court below granted defendant's motion to dismiss all claims save the Open Meetings claim, since plaintiffs failed to exhaust administrative remedies prior to filing suit. Id. Plaintiffs filed this interlocutory appeal. Id.

Discussion: The court held that irreparable harm would be done to plaintiffs were the requested relief not granted, and that the administrative agency in question had no authority to grant immediate injunctive relief. Id. at 201. Monetary damages would not remedy a student's wrongful retention based on an unlawful policy. Id. at 203. Plaintiffs were not required to exhaust administrative remedies since they alleged that the action they challenged was taken without statutory authority. Id. at 201, 203. The court also held that plaintiffs need not exhaust administrative remedies before bringing legal constitutional challenges to the school board's policy. Id. at 202-203. The court did not, however, decide whether the WISD policy was in fact unlawful; it only held that plaintiffs were not barred from suit by their failure to exhaust administrative remedies.



G.I. Forum v. Texas Education Agency, 2000 U.S. Dist. LEXIS 153 (W.D. Tex. Jan. 7, 2000): Plaintiffs alleged that the Texas Assessment of Academic Skills (TAAS) discriminated against minority examinees and violated their due process rights. Plaintiffs requested an injunction prohibiting defendants from requiring a passing TAAS score as a condition for receipt of a diploma and requiring defendants to issue them diplomas. The court denied plaintiffs' requests and entered judgment for defendants.

Facts: Plaintiffs alleged that the TAAS, because of its disparate impact on minority students, violated the Fourteenth Amendment Due Process Clause and an implementing statute under Title VI (34 C.F.R. 100.3). G.I. Forum, 2000 U.S. Dist. LEXIS 153, at *1. The TAAS was designed to measure knowledge rather than predict performance. Id. at *6. While the court found the history of dual education in Texas to be relevant to the case before it, it held that a real link must be established between that history and present educational disparities for the TAAS to be invalidated on that basis. Id. at *8. "In other words, the Plaintiffs were required to prove, by a preponderance of the evidence, that the TAAS test was implemented in spite of the disparities or that the TAAS test has perpetuated the disparities, and that requiring passage of the test for graduation is therefore fundamentally unfair." Id. at *9. The court eventually found that plaintiffs had not met this burden. Id. It concluded instead that Texas had implemented the TAAS in order to eradicate educational disparities and to foster uniform standards. Id.

Graduation exit exams were first introduced in Texas in 1987; the TAAS was adopted in 1990. Id. at *14. The TAAS was created by NCS, a nationally-recognized test developer, and Harcourt Brace. Id. State educators (chosen with attention paid to ethnic diversity) also play a primary role in test development, recommending specific material for inclusion. Id. at *15. Proposed test items are reviewed by test development and subject-matter content experts, measurement experts, and committees of teachers and educators. Id. Test items are reviewed for relevancy, difficulty, correctness of the answer, and plausibility of distracting answers. Id. Questions are also checked for passage appropriateness and difficulty. Id. Reviewers also ensure that material tested by TAAS questions was sufficiently taught in the curriculum prior to administration of the exam. Id. at *15 - *16. A second review is conducted by defendants, in conjunction with developmental and scoring contractors. Id. at *16. Test questions are field tested, and questions which prove disproportionately difficult for minority students may be removed. Id. Items may be retained, even with disparate impact, if they are a fair measure of the corresponding state objective and have no offensive language or concepts which are likely to place minority students at a disadvantage. Id.

Students are first given the TAAS exit exam, consisting of writing, reading, and mathematics sections, in the tenth grade. Id. at *18. Students must pass all three sections before being awarded a diploma. Id. Students who fail in their first attempt are allowed to retake the test up to seven times before graduation, and are given remedial instruction. Id. at *18, *20. The TAAS cut score was set at 70%, based on the cut score from the predecessor exam and expert input. Id. at *19. While suspecting that their projections were inflated, defendants anticipated at the time of implementation that under a 70% cut score 73% of African-American students, 67% of Hispanic students, and 50% of white students would fail the math section; 55% of African-American students, 54% of Hispanic students, and 29% of white students would fail the reading section; and 62% of African-American students, 45% of Hispanic students, and 36% of white students would fail the writing section. Id. On the first administration of the TAAS in 1991, 67% of African-American students, 59% of Hispanic students, and 31% of white students failed to attain the requisite cut score. Id. at *20. In every subsequent administration of the TAAS, disparities continued to be observed. Id. at *26. Despite these disparities, defendants felt the TAAS was essential to achieving uniformity in state standards and eliminating the inconsistent and subjective evaluations given by instructors. Id. at *20. Defendants produced evidence that such inconsistency disadvantages minority students through grade inflation. Id. The court was especially impressed by evidence indicating that score disparities between white and minority students were steadily narrowing, and that minority students were making rapid gains on other indicators of academic achievement. Id. at 26.

The court found defendants' remedial programs to be largely successful. Id. at 21. The court accepted a defense expert's conclusion that over 44,000 students in Texas had been successfully remediated since implementation of the TAAS requirement. Id. The court also found that instructors and administrators were held sufficiently accountable for their students' performance on the TAAS. Id. Plaintiffs neglected to present evidence indicating that the TAAS was adopted for the purpose of disadvantaging minority students in Texas; the court concluded that defendants acted with the intention of helping minority students and reasoned that the lack of a rigorous education was as serious an adverse impact as the withholding of a diploma. Id. at *22. While recognizing that the State of Texas had yet to provide perfectly equal educational opportunities for all of its students, the court held that evidence was lacking to show that plaintiff students did not have ample opportunity to master the material tested on the TAAS. Id. at *23. The court found persuasive defendants' evidence that the TAAS requirement and mandatory remediation had begun to eradicate the effects of prior discrimination. Id. at *24.

The court did find, however, that legally significant adverse impact was present on first-time administration of the TAAS. Id. at *27 - *28. While it conceded that cumulative pass scores in recent years did not show adverse impact under the EEOC's four-fifths rule, the court still found the remaining disparity to be of concern. Id. at *28. No particular mathematical threshold is absolutely required to show disparate impact. Id. The court still found the positive effects of remediation to be more weighty in the instant case than the negative effects felt by those who failed to pass the TAAS after eight attempts. Id. at *29.

Several Texas schools remained under desegregation orders at the time of this litigation. Id. at *55.

Discussion: The court began by acknowledging that the decisions of educational experts and administrators deserved special deference, but concluding that claims of racial discrimination required searching investigation. Id. at *3. The court identified Debra P. as the only case on point, standing for the propositions that 1) exit examinations that tested skills not actually taught are fundamentally unfair and 2) exams which perpetuate the effects of prior discrimination are unconstitutional. Id.

Since plaintiffs' Title VI claims arise under an implementing regulation rather than the statute itself, plaintiffs were not required to demonstrate intent to discriminate. Id. at *5. The regulation prohibits entities receiving federal funds from discriminating on the basis of race. Id. at *32. The court looked to Title VII disparate impact caselaw to flesh out the disparate impact analysis under the regulation. Id. at *34. The court considered the parties' evidence of disparate impact under both EEOC guidelines (four-fifths analysis) and the Shoben formula for statistical disparities. Id. at *35 - *36. While plaintiffs successfully demonstrated a disparate adverse impact on first-time administration of the exam (according to the four-fifths formula), they failed to show such a severe impact in cumulative pass rates and could not demonstrate a four-fifths disparity for the graduating classes of 1996, 1997, or 1998. Id. at *36 - *37. Since the court credited defendants' remedial efforts, it concluded that cumulative pass rates were more informative than first-time administration statistics. Id. at *37. Despite the fact that plaintiffs failed to make a successful showing under the EEOC rule, the court found that plaintiffs had established disparate impact by revealing score disparities (cutting across socioeconomic lines) of more than two to three standard deviations. Id. at *39 - *40.

While holding that the TAAS had a disparate impact on minority examinees, the court ruled that the TAAS was reasonably related to legitimate educational goals and thus did not impermissibly discriminate against plaintiff class. Id. at *41. The TAAS was implemented to improve educational accountability and generate uniform learning opportunities for pupils across the state. Id. The court found first that the TAAS was an appropriate measure of the skills and objectives students were expected to master before graduation. Id. at *42. The court also held that the 70% cut score was rationally related to the state's legitimate interest in ensuring that students master basic skills and concepts before leaving high school. Id. at *44. The court did not find it unreasonable that students be expected to learn 70% of what they were taught. Id. The court found it relevant that the state had relied on the field test data and the expert judgment of state educators in settling on the 70% cut score. Id. at *45. It held that use of the TAAS as a diploma requirement motivated students and encouraged them to learn. Id. at *46. The court refused to pass judgment on the wisdom of the curricular decisions made by the state. Id. at *47. Although plaintiffs presented evidence indicating that minority students dropped out of school at higher rates, they failed to establish that they did so because of the TAAS requirement. Id. While plaintiffs suggested that the TAAS and grades be weighted together on a sliding scale in lieu of a TAAS-only diploma requirement, the court ruled that there was no evidence indicating that such an alternative would be as effective in motivating students and encouraging their academic progress. Id. at *48. The court held that the TAAS had been successful in both motivating students and fostering systematic accountability, and should not be displaced at present. Id. at *49.

The court next considered plaintiffs' due process claims. Id. The court noted initially that students have a property interest, protected by due process, in receiving a high school diploma. Id. Stating that exit exams implicate both procedural and substantive due process concerns, the court first turned to procedural due process. Id. at *50. Exit exams may not be employed as a diploma requirement without adequate notice, or where implementation of the diploma requirement would be arbitrary and capricious, fundamentally unfair, or would frustrate a legitimate state interest. Id. at *50 - *51. Professional judgment must be exercised in crafting the diploma requirement. Id. at *51. The court held that the TAAS comported with each of these limitations. Id. The court found that the TAAS reliably tested material actually taught in Texas public schools; it also found persuasive defendants' argument that students were given eight opportunities to pass the exam and received mandatory remediation while studying to retake the test. Id. at *52. Experts testified that the TAAS had been designed to comport with current educational testing norms. Id. at *52. The state was held to have a legitimate interest in identifying and remediating educational deficiencies. Id. at *53. The court refused to attribute TAAS test disparities to irregular administration of the exam or flaws in the test itself. Id. The court dismissed plaintiffs' due process claims. Id. at *56.



RELATED TOPICS: SCHOLARSHIPS, PROMOTIONS, AND HANDICAPS



Sharif v. New York State Education Department, 709 F. Supp. 345 (S.D. N.Y. 1989): The court held that New York state denied female students an equal opportunity to receive state merit scholarships by relying solely on SAT results to determine eligibility, violating the equal protection clause and Title IX. Sharif, 709 F. Supp. at 348. The court allowed plaintiffs to establish discrimination under Title IX by relying on evidence of disparate impact in the absence of proof of intent to discriminate. Id. The court enjoined defendants from relying exclusively on the SAT in awarding merit scholarships. Id.

Facts: The New York State Legislature established the merit scholarships in question to recognize and reward superior high school achievement. Id. Plaintiffs alleged that the SAT was not designed to, and does not, measure academic achievement. Id. Plaintiffs claimed further that even if the SAT did measure such achievement, it discriminates against female scholarship applicants by underpredicting female and overpredicting male academic performance. Id. During pretrial proceedings, defendant SED agreed to begin collecting GPAs immediately for use in awarding scholarships in the event of an adverse decision. Id. at 349. Witnesses testified that the SAT tested concepts learned at grade levels below high school, tested concepts not taught in the high school curriculum, and required students to answer questions designed specifically for the SAT. Id. at 351. Experts also testified that the SAT was never designed to test high school achievement and does not cover the high school curriculum. Id. The SED had previously declined to use GPAs and class rank as eligibility standards because of the difficulties of converting GPA information to a common scale. Id. at 352. During the 1988-89 school year, the SED gave equal weight to GPAs and SAT scores when awarding the scholarships; women subsequently received more scholarships than ever before. Id. at 353. However, the legislature reverted to its traditional eligibility requirements (SAT only) the following year because 1) collection of GPA information burdened school staff; 2) GPAs provided an inaccurate comparison between students from different schools; and 3) use of the GPA discouraged students from enrolling in more challenging courses. Id. That the SAT underpredicts female and overpredicts male academic performance was undisputed. Id. at 354. Both the ETS and the College Board (which administers the SAT) discouraged exclusive reliance on the SAT even for the purpose for which it was validated - predicting future college performance. Id. ETS researchers advised instead that a combination of GPA and SAT scores produced the highest median correlation with college grades. Id. Defendants conceded that GPAs are a better measure of high school achievement than the SAT. Id. at 355. Experts testified that the probability that the SAT score disparity between males and females occurred by chance is approximately one in a billion; the probability that this disparity would be consistent over time was estimated to be "essentially zero." Id. Because of the SED's sole reliance on the SAT to determine scholarship eligibility, male students consistently received substantially more scholarships than their female counterparts. Id. The probability that this scholarship distribution would occur by chance was estimated by experts to be "less than one in a billion" for the Empire Scholarship and even less for the Regents Scholarship. Id. at 355-56.

Discussion: After discussing standing, venue, and jurisdiction, the court determined that it could award relief with a class-wide effect before first certifying a class. Id. at 356-59. Turning to plaintiffs' request for a preliminary injunction, the court ruled that plaintiffs have demonstrated irreparable harm if an injunction is not issued. Id. at 359. The court considered next plaintiffs' likelihood of success on the merits of the Title IX claim. Noting that the Supreme Court had not determined whether intent must be shown in Title IX cases and that courts addressing Title IX issues often look to law developed under Title VI and VII, the court applied Title VI's substantive standards to the instant case. Id. at 360-61. Title IX plaintiffs were held to have the same burden of proof as Title VI plaintiffs, and the court ruled that Title IX regulations prohibit testing practices with a discriminatory effect on one sex. Id. at 361. Plaintiffs were not required to demonstrate intentional discrimination. Id. The court employed Title VII analysis for disparate impact claims: 1) does the facially neutral practice have a disproportionate effect? 2) is there a substantial legitimate justification (educational necessity) for the practice? 3) is there an equally effective alternative practice with a less disproportionate effect, or is the legitimate practice simply a pretext for discrimination? Id. To show an educational necessity, plaintiffs must show a "manifest demonstrable relationship to classroom education." Id. The court found that plaintiffs had demonstrated a likelihood of success on the merits by establishing a prima facie case of disparate impact which the SED failed to attack. Id. at 362. Plaintiffs' experts established that absent discrimination, the probability that women would consistently score 60 points lower on the SAT than men was nearly zero. Id. Defendants failed to show even a reasonable relationship between the stated purpose of the scholarships and the practice of sole reliance on the SAT for eligibility purposes. Id. The SAT was not designed to measure high school performance and does not mirror the high school math and English curriculum. Id. The court described SAT scores as a "measure of aptitude rather than achievement." Id. The court also noted that even if the SAT accurately depicted high school achievement in math and English, it neglected to evaluate a student's performance on the remaining 80% of the high school curriculum. Id. The court accepted plaintiffs' argument that use of a combination of SAT scores and GPAs was an equally effective available alternative and would better advance the stated goal of rewarding superior high school performance. Id. at 362-63. The court ruled that "the SED cannot justify its discriminatory practice because any alternative would be more difficult to administer." Id. at 363.

The court also concluded that a preliminary injunction should issue because plaintiffs had also demonstrated a likelihood of success on the merits of their equal protection claim, even under the deferential rational basis analysis. Id. at 364. Plaintiffs alleged that classification of scholarship applicants based solely on the SAT is not rationally related to the state's goal of rewarding superior high school achievement. Id. The court held that "the SED's use of the SAT as a proxy for high school achievement is too unrelated to the legislative purpose of awarding academic achievement in high school to survive even the most minimal scrutiny." Id.



Bester v. Tuscaloosa City Board of Education, 722 F.2d 1514 (11th Cir. 1984): Plaintiff class challenged the institution of minimum reading standards for promotion in Tuscaloosa schools. Bester, 722 F.2d at 1515. The court below held that the policy comported with due process since students had no property right in the expectation of promotion, and held that the policy did not violate the proscription of tracking in schools that had recently become unitary. Id.

Facts: The desegregation order in the Tuscaloosa School District was lifted in 1981. Id. Prior to this date, no system-wide promotion policy existed. Id. Plaintiffs alleged that before 1981, African American students were socially promoted while their white peers were retained when they failed to meet minimum standards. Id. In 1981, the Board established minimum reading standards for promotion in an effort to improve its schools. Id. Each student was to be evaluated based on progress in his reading program rather than by means of a separate examination. Id. Although students and parents were notified of their reading levels on their report cards, they were graded at the level at which they could read rather than the grade to which they were assigned (meaning a 5th grader reading at 3rd grade level could receive an A for performance at 3rd grade level). Id. Report cards did provide instructions to parents for converting the student's instructional level to his grade level. Id. Parents were informed of the new retention policy less than two weeks before its adoption, and under the new policy, 23.6% of African American students were held back (compared to 5.8% of their white peers). Id. Plaintiffs did not claim that the TSB adopted the new policy out of racial animus. Id.

The court held that plaintiffs had no property right in "the expectation that substandard scholastic performance would continue to be accepted as a basis for promotion." Id. at 1516. The court also held that since the TSB's system of ability grouping had not resulted in resegregation, it was not forbidden despite the fact that the district had only recently become unitary. Id. at 1517.



Eric V. v. Causby, 977 F.Supp. 384 (E.D. N.C. 1997): The court declined to issue a preliminary injunction prohibiting the county board of education from retaining students based on standardized test scores.

Facts: Beginning in the 1996-97 school year, the Johnston County School Board instituted Policy 842 which provided that students in grades three through eight who failed to attain a specified score on a state-developed standardized test would be held back the next school year. Eric V., 977 F.Supp. at 386. Students who failed to score at Level III on their end-of-grade test were given remedial instruction and retested. Id. at 387. Students who scored only at Level I upon retesting were required to attend summer school (which was optional for students scoring at Level II upon retesting). Id. All of these students were then given a third opportunity to score at Level III; those who attained this score were promoted, while those who did not were retained. Id. Procedures were instituted to allow waiver of the Level III requirement for certain students who failed the test requirement but maintained high grades, and instructors notified parents of students at risk of retention at the end of the first semester. Id. Such students were also offered remedial instruction. Id. The new policy was explained to parents in five open meetings in Spring 1997 and in local newspaper articles. Id. Plaintiffs sought a preliminary injunction to prevent the school board from retaining them in the 1997-98 school year. Id.

Discussion: The court noted at the outset that plaintiffs' request for an injunction asked the court to recognize a new constitutional right: the right to promotion. Id. at 388. Federal courts, it maintained, should not substitute their judgement for that of a local school board on issues of qualitative achievement standards for promotion. Id. Fourth Circuit precedent suggests that denying students promotion based on failure to achieve did not implicate constitutional rights, leaving plaintiffs with a "no better than even" likelihood of success on the merits. Id. Although plaintiffs argued that their retention would cause them irreparable harm (by costing them a year of opportunity to attend college/start a career, lowering their self-esteem, fostering negative attitudes towards school, and reducing their chances of academic success), the court characterized these arguments as "highly speculative" and "distant" in nature and acknowledged instead that Policy 842 was instituted to aid students who need remedial instruction. Id. The court also noted that students could only be retained once throughout their academic careers and only then after two remedial attempts and three chances to pass the exam. Id. at 389. While the court declined to find that plaintiffs were likely to suffer harm if the preliminary injunction were not granted, it held that the JCSB would suffer severe harm if relief were to issue. Id. The federal court injunction would displace a carefully considered promotion/retention policy and outweigh the school board's decision, would diminish the JCSB's credibility, and would subject unprepared students to the "challenges of a new grade." Id.

The court held that under both due process and equal protection analysis, Policy 842 should be subject only to rational basis review rather than intermediate or strict scrutiny. The court cited San Antonio Independent School District for the proposition that public education is not a fundamental right requiring strict scrutiny of equal protection claims. Id. The policy need only be rationally related to a legitimate end, characterized here as the county's interest in implementing its own promotion policy based on qualitative achievement standards and the county's desire to promote academic achievement. Id. The court rejected the notion that students have any property right in promotion which triggers procedural due process requirements. Id. at 389-90. Plaintiffs also failed to establish that Policy 842 disproportionately impacts minority students, in contravention of Title VI requirements. Id. at 390. Deferring to principles of federalism and the authority of the JCSB, the court refused to grant the relief requested. Id.



Wells v. Banks, 266 S.E.2d 270 (Ga. App. 1980), rev'd sub nom., Anderson v. Banks, 520 F. Supp. 472 (S.D. Ga. 1981), rev'd in part on reh'g, 540 F. Supp. 761 (S.D. Ga. 1982), appeal dismissed sub nom., Johnson v. Sikes, 730 F.2d 644 (11th Cir. 1984). In addition to the holdings described in the High Stakes Testing summary, the court in Anderson v. Banks concluded that the county's former tracking system was constitutionally inadequate and that §504 of the Rehabilitation Act was violated when the district misclassified students as mentally retarded. The diploma sanction, however, did not deny mentally retarded students equal protection.

Facts: While the national incidence of mental retardation is 2.3%, the TCSD classified between 5% and 7% of its students as mentally retarded in the 1977-78 and 1978-79 school years. Anderson, 520 F. Supp. at 494-95. The court noted the disastrous effects of misclassification for students who are not truly mentally retarded, yet still placed in programs for mentally retarded students; these children face lower expectations from teachers and peers, receive little academic training, will not be exposed to material corresponding to their potential, and will be stigmatized. Id. at 495. The TCSD failed to require parental consent before placing students in EMR (educable mentally retarded) programs, and did not keep accurate records reflecting the reasons motivating the placement decision. Id. As a result, a "grossly disproportionate" number of African American children were misclassified as mentally retarded while a disproportionate number of their white peers were placed in classes for children with learning disabilities. Id. at 495-96. The possibility of the misclassifications having occurred by chance was described as "almost nonexistent," and the court concluded that the TCSD's placement procedures had a severe racial impact. Id. at 496. In one school year, 26% of the children placed in EMR classes had scores above the EMR cutoff line. Id. Of 39 EMR files randomly selected by investigators, 25 African American students were misclassified and failed to meet EMR placement requirements. Id. at 497. One student was classified as mentally retarded because "she does not write letters, does not have her own spending money, she buys her own clothing, she goes out unsupervised, she does not follow current events, and she is left to care for others." Id. Before the beginning of this litigation, the TCSD denied diplomas to all EMR students; after initiation of the suit, the TCSD agreed to award diplomas to any EMR students who could satisfy graduation requirements. Id. at 498.

Discussion: In considering whether the denial of diplomas to students accurately classified as EMR violated §504 of the Rehabilitation Act, the court noted that the TCSD was subject to §504 as a recipient of federal funds, that §504 was enforceable in a private suit, and that no exhaustion of administrative remedies was required. Id. at 509. The court also recognized that the TCSD had agreed to allow students classified as EMR to receive diplomas provided they passed the CAT. Id. at 510. However, the court acknowledged that placing students in EMR classes where they were exposed to a less rigorous curriculum drastically reduced their opportunity to pass the CAT. Id. The court concluded that EMR children, "by the very nature of their handicap, cannot fully participate in the normal academic programs." Id. at 511. EMR students, therefore, were held not to be "otherwise qualified" within the meaning of §504 and the TCSD's policy was not violative of the Rehabilitation Act with respect to students appropriately classified. Id.

The court went on to rule, however, that §504 also protects the rights of those misclassified as handicapped and that the TCSD had violated the rights of students who were misclassified and denied proper procedure. Id. at 512. The court required the parties to later submit a plan to the court for evaluation of all students classified as EMR and a plan to provide for remediation of misclassified students. Id. at 512. After holding that no intentional misclassification had occurred and that the diploma policy implicated no suspect classification, the court refused to find any equal protection violation of the rights of EMR students. Id.