It is important for educators and policy-makers to understand the test measurement principles and the legal principles that will enable them to ask informed questions and make sound decisions regarding the use of tests for high-stakes purposes. The goal of this chapter is to explain the legal principles that apply to educational testing. The primary focus of this chapter is four federal nondiscrimination laws, enacted by Congress, and their implementing regulations: Title VI of the Civil Rights Act of 1964 (Title VI), Title IX of the Education Amendments of 1972 (Title IX), Section 504 of the Rehabilitation Act of 1973 (Section 504), and Title II of the Americans with Disabilities Act of 1990 (Title II).165 Within the U.S. Department of Education, the Office for Civil Rights has responsibility for enforcing the requirements of these four statutes and their implementing regulations. Although the Office for Civil Rights does not enforce federal constitutional provisions, an overview of these constitutional principles, including under the Fifth and Fourteenth Amendments of the U.S. Constitution, has also been included for informational purposes because of their importance to sound test use. The discussion of legal principles in this chapter is intended to reflect existing legal principles and does not establish new requirements.166
I. Discrimination Under Federal Statutes and Regulations Congress has enacted four statutes prohibiting discrimination based on race, color, national origin, sex, and disability in elementary and secondary schools, colleges, and universities. Title VI prohibits discrimination based on race, color, or national origin; Title IX prohibits discrimination based on sex; and Section 504 and Title II of the Americans with Disabilities Act (ADA) prohibit discrimination based on disability. Title VI, Title IX, and Section 504 apply to all educational institutions that receive federal funds. Title?II of the ADA applies to public entities, including public school districts and state colleges and universities.172 The Title VI, Title IX, Section 504, and Title II statutes and their implementing regulations as well as the equal protection clause of the Fourteenth Amendment to the United States Constitution, prohibit intentional discrimination, based on race, national origin, sex, or disability.173 In addition, the regulations that implement Title VI, Title IX, Section 504 and Title II prohibit policies or practices that have a discriminatory disparate impact on students based on their race, national origin, sex, or disability.174 This section describes two central analytical frameworks for examining allegations of discrimination as set forth in federal nondiscrimination regulations: different treatment and disparate impact.175 It also includes a further discussion of legal principles that apply specifically to students with limited English proficiency and to students with disabilities. A. Different Treatment Under federal law, policies and practices generally must be applied consistently to similarly situated individuals or groups, regardless of their race, national origin, sex, or disability.176 For example, a federal court concluded that a school district had intentionally treated students differently on the basis of race where minority students whose test scores qualified them for two or more ability levels were more likely to be assigned to the lower-level class than similarly situated white students, and no explanatory reason was evident.177 In addition, educational systems that previously discriminated by race in violation of the Fourteenth Amendment and have not achieved unitary status have an obligation to dismantle their prior de jure segregation. In such instances, school districts are under ?a ?heavy burden? of showing that actions that [have] increased or continued the effects of the dual system serve important and legitimate ends.?178 When such a school district or other educational system uses a test or assessment procedure for a high-stakes purpose that has significant racially disparate effects, to justify the test use, the school district must show that the test results are not due to the present effects of prior segregation or that the practice or procedure remedies the present effects of such segregation by offering better educational opportunities.179 B. Disparate Impact The federal nondiscrimination regulations also provide that a recipient of federal funds may not ?utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination.?180 Thus, discrimination under federal law may occur where the application of neutral criteria is shown by the party challenging those criteria to have discriminatory effects and those criteria are not shown by the recipient to be educationally justified. Even if the criteria are educationally justified, discrimination may be found if it is shown by the challenging party that there are alternative practices available that are equally effective in serving the educational institution?s goals and have less disparate impact. It is important to understand that disparities in student performance based on race, national origin, sex, or disability, do not alone constitute disparate impact discrimination under federal law; nothing in federal law guarantees equal results. Rather, significant disparities trigger further inquiry to ensure that the given policy is in fact nondiscriminatory. Courts applying the disparate impact test have examined three questions to determine if the practice at issue is discriminatory: (1) Does the practice or procedure in question result in significant differences in the award of benefits or services based on race, national origin, or sex? (2) Is the practice or procedure educationally justified? and (3) Is there an equally effective alternative that can accomplish the institution?s educational goal with less disparity?181 (For a discussion of disability discrimination, including disparate impact discrimination, see discussion infra Chapter 2 (Legal Principles) Part III (Testing of Students with Disabilities).182) The party challenging the test has the burden of establishing disparate impact. If disparate impact is established, the educational institution must demonstrate the educational justification (also referred to as ?educational necessity?) of the practice in question.183 If a sufficient educational justification is established, then the party challenging the test must establish that an alternative with less disparate impact is equally effective in meeting the institution?s educational goals in order to prevail.184
The first question in the disparate impact analysis is whether there is information indicating a significant disparity in the provision of benefits or services to students based on race, national origin, or sex. Courts have used a variety of methods to distinguish differences between outcomes that are statistically and practically significant from those that are random.185 To determine if a sufficient disparate impact exists, courts have focused on evidence of statistical disparities.186 Generally, a test has a disproportionate adverse impact if a statistical analysis shows a significant difference from the expected random distribution.187 There is no rigid mathematical threshold regarding the degree of disproportionality required; however, the statistical evidence must identify disparities that are sufficiently substantial to raise an inference that the challenged practice caused the disparate results.188 To establish disparate impact in the context of a selection system, the comparison must be made between those selected for the educational benefit or service and a relevant pool of applicants or test takers.189 In general, a specific policy, practice, or procedure must be identified as causing the disproportionate adverse effect on the basis of race, national origin, or sex.190 For example, when a particular use of a test is being challenged, the evidence should show that the test use, rather than other selection factors, accounts for the disparity.191
Where the use of a test results in decisions that have a disparate impact on the basis of race, national origin, or sex, the test use causing the disparity must significantly serve the legitimate educational goals of the institution.192 This inquiry is usually referred to as determining the ?educational necessity? of the test use or determining whether the test is ?educationally justified.?193 In evaluating educational necessity, both the legitimacy of the educational goal asserted by the institution and the use of the test as a valid means to advance that goal may be at issue. Courts generally give deference to educational institutions to define their own legitimate educational goals194 and focus more directly on whether the challenged test supports those goals.195 While the test need not be ?essential? or ?indispensable? to achieving the institution?s educational goal,196 the educational institution must show a manifest relationship between use of the test and an important educational purpose.197 In conducting this analysis, courts have generally considered relevant evidence of validity, reliability, and fairness198 provided by the test developer and test user to determine the acceptability of the test for the purpose used, giving deference, as appropriate, to the educational institution?s testing practices that are within professionally accepted standards.199 The educational justification inquiry thus generally looks at technical questions regarding the test?s accuracy in relation to the nature and importance of the educational institution?s goals, the educational consequences to students, the relationship of the educational institution to the student, and other factors bearing on test use, such as whether and how additional information beyond the test score enters into the educational decision at stake.200 Where a test is used for promotion or graduation purposes, a major consideration is the extent to which the educational institution has provided the student with the opportunity to learn the content and skills being tested.201
If the educational institution provides sufficient evidence that the test use in question is justified educationally, the party challenging the test has the opportunity to show that there exists an equally effective alternative practice that meets the institution?s goals with less disparity.202 The feasibility of an alternative, including costs and administrative burdens, is a relevant consideration.203 II. Testing Of Students With Limited English Proficiency Testing of students with limited English proficiency in the elementary and secondary education context raises a set of unique issues. To understand the obligations of states and school districts with regard to high-stakes testing of such students, it is important to understand the basic obligations of school districts and states under Title VI and federal law that relate to language minority students who are learning English. Title VI prohibits discrimination based on race, color, or national origin. On May 25, 1970, the United States Department of Health, Education, and Welfare?s Office for Civil Rights issued a policy memorandum entitled ?Identification of Discrimination and Denial of Services on the Basis of National Origin.? The May 25th memorandum clarified the responsibility of school districts, under Title VI, to provide equal educational opportunity to national origin minority group students whose inability to speak and understand the English language excludes them from effective participation in any education program offered by a school district.204 This memorandum was cited with approval by the Supreme Court in its decision in Lau v. Nichols, which held that the district?s policy of teaching national origin minority group children only in English, without any special assistance, deprived them of the opportunity to benefit from the district?s education program, including meeting the English language proficiency standards required by the state for a high school diploma.205 The Lau case held that such policies are barred when they have the effect of denying such benefits, even though no purposeful design is present.206 Subsequently, Castaneda v. Pickard,207 relying on the language of the Equal Educational Opportunities Act (EEOA), explained the steps school districts must take to help students with limited English proficiency overcome language barriers to ensure that they can participate meaningfully in the districts? educational programs.208 The court stated that school districts have an obligation to provide services that enable students to acquire English language proficiency. A school system that chooses to temporarily emphasize English over other subjects retains an obligation to provide assistance necessary to remedy academic deficits that may have occurred in other subjects while the student was focusing on learning English. Under the Castaneda standards, school districts have broad discretion in choosing a program of instruction for limited English proficient students. However, the program must be based on sound educational theory, must be adequately supported so that the program has a realistic chance of success, and must be periodically evaluated and revised, if necessary, to achieve its goals. The disparate impact framework discussed earlier in the guide in Chapter 2 Part (I)(B) may also be used to examine whether tests used for high-stakes purposes result in a discriminatory impact upon students with limited English proficiency. As part of this analysis, questions may arise regarding the validity and reliability of the test for these students.209 Depending upon the purpose of the test and the characteristics of the populations being tested, in some situations, accommodations or other forms of assessment of the same construct may be necessary. In short, the obligation is to ensure that the same constructs are being measured for all students. There are three particularly important areas involving high-stakes testing of students with limited English proficiency: (1) tests used to determine a student?s proficiency in the areas of speaking, listening, reading, or writing English for the purpose of determining whether the student should be provided with a program or services to enable the student to acquire English language skills (and, later, for the purpose of determining whether the student is ready to exit the program or services); (2) tests used to determine if the student meets the criteria for other specialized instructional programs, such as gifted and talented or vocational education programs; and (3) systemwide tests, including graduation tests, administered to determine if students have met performance standards. Tests used to determine a student?s initial and continuing need for special language programs should be appropriate in light of a district?s own performance expectations and otherwise valid and reliable for the purpose used. Tests used by schools to help select students for specialized instructional programs, including programs for gifted and talented students, should not screen out limited English proficient students unless the program itself requires proficiency in English for meaningful participation.210 When a state or school district adopts content and performance standards and uses tests for high-stakes purposes, such as graduation tests, to measure whether students have mastered those standards, a critical factor under Title VI is whether the overall educational program provided to students with limited English proficiency is reasonably calculated to enable the students to master the knowledge and skills that are required to pass the test. When education agencies institute standards-based testing, it is important for them to examine their programs for students with limited English proficiency to determine when and how these students will be provided with the instruction needed to prepare them to pass the test in question. 211 In addition, students with limited English proficiency may not be categorically excluded from standardized testing designed to increase accountability of educational programs for effective instruction and student performance. If these students are not included, the test data will not fairly reflect the performance of all students for whom the education agency is responsible.212 Such test data can also help a district assess the effectiveness of its content and English language acquisition programs. For information on the factors that help ensure accuracy of tests for limited English proficient students, see discussion infra Chapter 1 (Test Measurement Principles) Part II (B) (Testing of Limited English Proficient Students). In making decisions about testing limited English proficient students, factors such as the student?s level of English proficiency, the primary language of instruction, the level of literacy in the native language, and the number of years of instruction in English may all be pertinent.213 When students participate in assessments designed to meet the requirements of Title I of the Elementary and Secondary Education Act, as amended, those assessments must be implemented in a manner that is consistent with both the requirements of Title VI and Title I. III. Testing Of Students With Disabilities Three federal statutes provide basic protections for elementary and secondary students with disabilities. Section?504 of the Rehabilitation Act of 1973 (Section 504) and Title II of the Americans with Disabilities Act of 1990 (Title II) prohibit discrimination against persons with disabilities by public schools.214 The Individuals with Disabilities Education Act (IDEA) establishes rights and protections for students with disabilities and their families. It also provides federal funds to state education agencies and school districts to assist in educating students with disabilities.215 Under Section 504, Title II, and the IDEA,216 school districts have a responsibility to provide students with disabilities, as defined by applicable law, with a free appropriate public education. Providing effective instruction in the general curriculum for students with disabilities is an important aspect of providing a free appropriate public education. The regulations implementing Section 504 and Title II specifically prohibit the use of ?criteria or methods of administration . . . that have the effect of subjecting qualified persons with disabilities to discrimination on the basis of disability.?217 Under Section 504, Title II, and the IDEA, tests given to students with disabilities must be selected and administered so that the test accurately reflects what a student knows or is able to do, rather than a student?s disability (except when the test is designed to measure disability-related skills). This means that students with disabilities covered by these statutes must be given appropriate accommodations and modifications in the administration of the tests that allow the same constructs to be measured. Examples include oral testing, tests in large print, Braille versions of tests, individual testing, and separate group testing. Generally, there are three critical areas in which high-stakes testing issues arise for students with disabilities: (1) tests used to determine whether a student has a disability and, if so, the nature of the disability; (2) tests used to determine if a student meets the criteria for other specialized instructional programs, such as gifted and talented or vocational education programs; and (3) systemwide tests administered to determine if a student has met performance standards. Under Section 504, Title II, and the IDEA, before an elementary and secondary school student can be classified as having a disability, the responsible education agency must individually evaluate the student in accordance with specific statutory and regulatory requirements, including requirements regarding the validity of tests and the provision of appropriate accommodations.218 These requirements prohibit the use of a single test score as the sole criterion for determining whether a student has a disability and for determining an appropriate educational placement for the student.219 When tests are used for other purposes, such as in making decisions about placement in gifted and talented programs, it is important that tests measure the skills and abilities needed in the program, rather than the disability, unless the test purports to measure skills or functions that are impaired by the disability and such functions are necessary for participation in the program.220 For this reason, appropriate accommodations may need to be provided to students with disabilities in order to measure accurately their performance in the skills and abilities required in the program. Furthermore, federal laws generally require the inclusion of students with disabilities in state- and districtwide assessment programs, except as participation in particular tests is individually determined to be inappropriate for a particular student. Assessment programs should provide valuable information that benefits students, either directly, such as in the measurement of individual progress against standards, or indirectly, such as in evaluating programs. Given these benefits, exclusion from assessment programs, unless such participation is individually determined inappropriate because of the student?s disability, would generally violate Section 504 and Title II. If a student with a disability will take the systemwide assessment test the student must be provided appropriate instruction and appropriate test accommodations.221 The Individuals with Disabilities Education Amendments of 1997 specifically require states, as a condition of receiving IDEA funds, to include students with disabilities in the regular state- and districtwide assessment programs, with appropriate accommodations, where necessary.222 The IDEA also requires state or local education agencies to develop guidelines for the relatively small number of students with disabilities who cannot take part in state- and districtwide tests to participate in alternate assessments.223 For children with disabilities, school personnel knowledgeable about the student, the nature of the disability, and the testing program, in conjunction with the student?s parent or guardian, determine whether the student will participate in all or part of the state- or districtwide assessment of student achievement.224 The decision must be documented in the student?s individualized education program (IEP), or a similar record, such as a Section 504 plan. These records must also state any individual accommodations in the administration of the state- or districtwide assessments of student achievement that are needed to enable the student to participate in such assessment. An IEP, developed under the IDEA, must also explain how the student will be assessed if it is inappropriate for the student to participate in the testing program even with accommodations.225 The individual decisions made regarding testing of the student in the IEP or Section 504 plan are subject to appeal by the parent or guardian through the due process procedures required by applicable law.226 Section 504 and Title II also prohibit discrimination against qualified persons with disabilities in virtually all public and private post-secondary institutions.227 The regulatory requirements related to disability discrimination are different in post-secondary education than in elementary and secondary education. Post-secondary institutions are not required to evaluate students or to provide them with a free appropriate education. High-stakes testing issues at the post-secondary level generally relate to tests considered by post-secondary institutions for admissions, including tests given by an educational institution or other covered entities as prerequisites for entering a career or career path, and tests of academic competency required by the institution to complete a program. This guide is not intended to offer a complete or detailed explanation of each of these testing situations, but only a brief synopsis.228 The Section 504 regulation specifically provides that higher education institutions? admissions procedures may not make use of any test or criterion for admission that has a disproportionate, adverse impact on individuals with disabilities unless (1) the test or criterion, as used by the institution, has been validated as a predictor of success in the education program or activity and (2) alternative tests or criteria that have a less disproportionate, adverse impact are not shown to be available.229 In administering tests, appropriate accommodations must be provided so that the person can demonstrate his or her aptitude and achievement, not the effect of the disability (except where the functions impaired by the disability are the factors the test purports to measure).230 For other high-stakes tests that an institution might administer, such as rising junior tests, similar requirements apply.231 The institution must provide adjustments or accommodations and auxiliary aids and services that enable the student to demonstrate the knowledge and skills being tested.232 Students are required to notify the educational institution when accommodations are needed and initially supply adequate documentation of a current disability and the need for accommodation.233 The student?s preferred accommodation does not have to be provided as long as an effective accommodation is provided. Test accommodations are intended to provide the person with disabilities the means by which to demonstrate the skills and knowledge being tested. Although Section?504 and Title II require a college or university to make reasonable modifications, neither Section?504 nor Title II requires a college or university to change, lower, waive, or eliminate academic requirements or technical standards that can be demonstrated by the college or university to be essential to its program of instruction or to any directly related licensing requirement.234 Accommodations requested by students need not be provided if they would result in a fundamental alteration to the institution?s program.235 IV. Constitutional Protections In addition to applying federal nondiscrimination statutes, courts have also considered constitutional issues that may arise when public school districts or state education agencies utilize tests for high-stakes purposes in their educational programs, particularly tests required for promotion or graduation.236 Constitutional challenges to testing programs under the Fourteenth Amendment have raised both equal protection and due process claims. The equal protection principles involved in discrimination cases are, generally speaking, the same as the standards applied to intentional discrimination claims under the applicable federal nondiscrimination statutes.237 The due process clause of the Fourteenth Amendment is particularly associated with cases challenging the adequacy of the notice provided to students prior to this type of test and the students? opportunity to learn the required content.238 In analyzing such due process claims, courts have generally considered three issues:
Federal courts typically defer to educators? policy judgments regarding the value of legitimate educational benefits sought from the testing programs.239 For example, improving the quality of elementary and secondary education through the establishment of academic standards has been seen as a legitimate goal of a testing program, and colleges and universities generally have been given wide latitude in framing degree requirements.240 The constitutional inquiry then focuses on whether the challenged testing program is reasonably related to the educators? legitimate goals or whether the program produces results that are arbitrary and capricious or fundamentally unfair.241
In the elementary and secondary school context, courts have required sufficient advance notice of tests required for graduation to give students a reasonable chance to learn the material presented on the test.242 A particularly important concern in some of these decisions is the adequacy of notice provided to students. This issue has arisen in cases where racial minority students and students with disabilities received inadequate notice and did not receive a program of instruction that prepared them to pass the test.243 In looking at the length of the transition period needed between the announcement of a new requirement and its full implementation, the kind of test and the context in which it is administered are central factors to be considered. Specific circumstances taken into account include the nature of instructional supports, including remediation, that accompany the test,244 whether re-testing is permitted,245 and whether the decision to promote or graduate the student considers other information about the student?s performance.246
Several courts have found that ?fundamental fairness? requires that students be taught the material covered by the test where passing the test is a condition for receipt of a high school diploma.247 For example, in analyzing this issue in a case involving a state where there had been past intentional segregation in elementary and secondary schools before a statewide diploma test was required, and where racial minority students had a disproportionate failure rate on the test, the court took the state?s past intentional segregation into account in determining whether racial minority students had been given opportunities to learn the material covered by the test.248 For the test to meaningfully measure student achievement, the test, the curriculum, and classroom instruction should be aligned. In cases examining systemwide administration of a test, courts require evidence that the content covered by the test is actually taught, but may not expect proof that every student has received the relevant instruction.249 165. Title VI prohibits discrimination on the basis of race, color and national origin by recipients of federal financial assistance. The U.S. Department of Education?s regulation implementing Title VI is found at 34 C.F.R. Part 100. Title IX prohibits discrimination on the basis of sex by recipients of federal financial assistance. The U.S. Department of Education?s regulation implementing Title IX is found at 34 C.F.R. Part 106. Section 504 prohibits discrimination on the basis of disability by recipients of federal financial assistance. The U.S. Department of Education?s regulation implementing Section 504 is found at 34 C.F.R. Part 104. Title II prohibits discrimination on the basis of disability by public entities, regardless of whether they receive federal funding. The U.S. Department of Justice?s regulation implementing Title II is found at 28 C.F.R. Part 35. BACK 166. Consistent with this approach, court decisions are not cited if the case is still on appeal or the time to request an appeal has not ended. BACK 167. See Sharif v. New York State Educ. Dep?t., 709 F. Supp. 345, 354-55, 364 (S.D.N.Y. 1989) (in granting a motion for preliminary injunction, where girls received comparatively lower scores than boys, court found that the state?s use of SAT scores as the sole basis for decisions awarding college scholarships intended to reward high school achievement was not educationally justified for this purpose in that the SAT had been designed as an aptitude test to predict college success and was not designed or validated to measure past high school achievement). BACK 168. See id. at 364; see also United States v. Fordice, 505 U.S. 717, 735-39 (1992) (holding that the state?s reliance on minimum ACT scores was constitutionally suspect where the ACT requirement was originally adopted for discriminatory purposes, the current requirement was traceable to that decision and continued to have segregative effects, and the state failed to show that the ?ACT-only? admissions standard was not susceptible to elimination without eroding sound educational policy, and recognizing that ?[a]nother constitutionally problematic aspect of the state?s use of the ACT test scores is its policy of denying automatic admission if an applicant fails to earn the minimum ACT score specified for the particular institution, without also resorting to the applicant?s high school grades as an additional factor in predicting college performance.?); GI Forum Image De Tejas v. Texas Education Agency, 87 F. Supp. 2d 667 (W.D. Tex. 2000) (upholding the use of Texas Assessment of Academic Skills examination as a requirement for high school graduation where the court found that the test was strongly correlated to the material actually taught in the classroom; minority students received an equal opportunity to learn the items presented on the test; the test had been extensively validated as a tool for measuring legislatively established minimum skills as a requisite for graduation; and multiple opportunities were provided to each student to pass the examination in conjunction with state mandated remediation targeted to the student's deficiency areas). BACK 169. See Lau v. Nichols, 414 U.S. 563, 566-69 (1974) (finding a violation of the Title VI regulations where limited English proficient students were taught only in English and not provided any special assistance needed to meet English language proficiency standards required by the state for a high school diploma); see also Debra P. v. Turlington, 644 F.2d 397, 406-08 (5th Cir. 1981) (holding that use of a graduation test that covered material that had not been taught in class would violate the due process and equal protection clauses and that, under the circumstances of the case, immediate use of the diploma sanction for test failure would punish black students for deficiencies created by an illegally segregated school system which had provided them with inferior physical structures, course offerings, instructional materials, and equipment). BACK 170. See Larry P. v. Riles, 793 F.2d 969, 980-81, 983 (9th Cir. 1984) (finding that IQ tests the state used had not been validated for use as the sole means for determining that black children should be placed in classes for educable mentally retarded students); Sharif, 709 F. Supp. at 354 (observing that the SAT under-predicts success for female college freshmen as compared with males); see also Parents in Action on Special Educ. v. Hannon, 506 F. Supp. 831, 836-37 (N.D. Ill. 1980) (court?s analysis of items on I.Q. test found only minimal amount of cultural bias not resulting in erroneous mental retardation diagnoses given other information considered in process). BACK 171. See Groves v. Alabama State Bd. of Educ, 776 F. Supp. 1518, 1530-31 (M.D. Ala. 1991) (finding test required for admission to undergraduate teacher training program would not be educationally justified if the passing score is not itself a valid measure of the minimal ability necessary to become a teacher); Richardson v. Lamar County Bd. of Educ., 729 F. Supp. 806, 823-25 (M.D. Ala. 1989) (evidence revealed that cut-off scores had not been set through a well-conceived, systematic process nor could the scores be characterized as reflecting the good faith exercise of professional judgment), aff?d sub nom., Richardson v. Alabama State Bd. of Educ., 935 F.2d 1240 (11th Cir. 1991). BACK 172. OCR enforces five nondiscrimination statutes, Title VI of the Civil Rights Act of 1964, 42 U.S.C. ?? 2000d et seq. (2000); Title IX of the Education Amendments of 1972, 20 U.S.C. ?? 1681 et seq. (1999); Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. ? 794 (1999); Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. ?? 12131 et seq. (1995 & Supp. 1999); and the Age Discrimination Act of 1975, as amended, 42 U.S.C. ?? 6101 et. seq. (1995 & Supp. 1999). Regulations issued by the United States Department of Education implementing Title VI, Title IX, and Section 504, respectively, can be found at 34 C.F.R. Part 100, 34 C.F.R. Part 106, and 34 C.F.R. Part 104. These regulations can be found on OCR?s web site at www.ed.gov/offices/OCR. Regulations implementing Title II of the ADA can be found at 28 C.F.R. Part 35. Title III of the ADA, which is enforced by the U.S. Department of Justice, prohibits discrimination in public accommodations by private entities, including schools. Religious entities operated by religious organizations are exempt from Title III. BACK 173. The United States Supreme Court has held that ?Title VI itself directly reached only instances of intentional discrimination . . . [but that] actions having an unjustifiable disparate impact on minorities could be addressed through agency regulations designed to implement the purposes of Title VI.? Alexander v. Choate, 439 U.S. 287, 295 (1985), discussing Guardians Ass?n v. City Service Comm?n of N.Y., 403 U.S. 582 (1983). The United States Supreme Court has never expressly ruled on whether Section 504, Title II and Title IX statutes prohibit not only intentional discrimination, but, unlike Title VI, prohibit disparate impact discrimination as well. See, e.g., Choate, 409 U.S. at 294-97 & n.11 (observing that Congress might have intended the Section 504 statute itself to prohibit disparate impact discrimination). Section 504 and Title II require reasonable modifications where necessary to enable persons with disabilities to participate in or enjoy the benefits of public services. Regardless, the regulations implementing Section 504, Title II, and Title IX, like the Title VI regulation, explicitly prohibit actions having discriminatory effects as well as actions that are intentionally discriminatory. BACK 174. 34 C.F.R. ? 100.3(b)(2) (Title VI); 34 C.F.R. ?? 106.21(b)(2), 106.36(b), 106.52 (Title IX); 34 C.F.R. ? 104.4(b)(4)(i) (Section 504); 28 C.F.R. ? 35.130(b)(3) (Title II). The authority of federal agencies to issue regulations with an ?effects? standard has been consistently acknowledged by United States Supreme Court decisions and applied by lower federal courts addressing claims of discrimination in education. See, e.g., Choate, 469 U.S. at 289-300 (1985); Guardians Ass?n, 463 U.S. at 584-93; Lau, 414 U.S. at 568; see also Memorandum from the Attorney General for Heads of Departments and Agencies that Provide Federal Financial Assistance, Use of the Disparate Impact Standard in Administrative Regulations under Title VI of the Civil Rights Act of 1964 (July 14, 1994). BACK 175. Intentional racial discrimination is a violation of both the Fourteenth Amendment to the United States Constitution and federal civil rights statutes in cases where evidence demonstrates that an action such as the use of a test for high-stakes purposes is motivated by an intent to discriminate. See Elston v. Talladega County Bd. of Educ., 997 F.2d 1394, 1406 (11th Cir. 1993). As explained further in this section, the regulations promulgated under the federal civil rights statutes prohibit the use of neutral criteria having disparate effects unless the criteria are educationally justified. See Guardians Ass?n, 463 U.S. at 598. BACK 176. For example, under the Fourteenth Amendment and Title VI, different treatment based on race or ethnicty is permitted only when such action is narrowly tailored to further a compelling state interest. See Adarand Constructors, Inc., v. Pena, 515 U.S. 200 (1995); Richmond v. Croson, 488 U.S. 469 (1989); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978). BACK 177. People Who Care v. Rockford Bd. of Educ., 851 F. Supp. 905, 958-1001 (N.D. Ill. 1994), remedial order rev?d, in part, 111 F.3d 528 (7th Cir. 1997). On appeal, the Seventh Circuit Court of Appeals stated that the appropriate remedy based on the facts in the case was to require the district to use objective, non-racial criteria to assign students to classes, rather than abolishing the district?s tracking system. People Who Care, 111 F.3d at 536. BACK 178. Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526, 538 (1979) (quoting Green v. County School Bd., 391 U.S. 430, 439 (1968)). BACK 179. See Debra P. v. Turlington, 644 F.2d 397, 407 (5th Cir. 1981) (?[Defendants] failed to demonstrate either that the disproportionate failure [rate] of blacks was not due to the present effects of past intentional segregation or, that as presently used, the diploma section was necessary [in order] to remedy those effects.?); McNeal v. Tate County Sch. Dist., 508 F.2d 1017, 1020 (5th Cir. 1975) (ability grouping method that causes segregation may nonetheless be used ?if the school district can demonstrate that its assignment method is not based on the present results of past segregation or that the method of assignment will remedy such effects through better educational opportunities?); see also United States v. Fordice, 505 U.S. 717, 731 (1992) (?If the State [university system] perpetuates policies and practices traceable to its prior system that continue to have segregative effects . . . and such policies are without sound educational justification and can be practically eliminated, the State has not satisfied its burden of proving that it has dismantled its prior system.?); Cf. GI Forum v. Texas Educ. Agency, 87 F. Supp. 2d 667, 673, 684 (W.D. Tex. 2000) (the court concluded, based on the facts presented, that the test seeks to identify inequities and address them; the state had ensured that the exam is strongly correlated to material actually taught in the classroom; remedial efforts, on balance, are largely successful; and minority students have continued to narrow the passing gap). BACK 180. 34 C.F.R. ? 100.3(b)(2) (Title VI); 34 C.F.R. ? 104.4(b)(4)(i) (Section 504); 28 C.F.R. ? 35.130(b)(3)(i) (Title II); see also 34 C.F.R. ? 106.31 (Title IX). In Guardians Association, the U.S. Supreme Court upheld the use of the effects test, stating that the Title VI regulation forbids the use of federal funds, ?not only in programs that intentionally discriminate on racial grounds but also in those endeavors that have a[n] [unjustified racially disproportionate] impact on racial minorities.? 463 U.S. at 589-90. BACK 181. Georgia State Conf. of Branches of NAACP v. Georgia, 775 F.2d 1403, 1417 (11th Cir. 1985); see also Elston, 997 F.2d at 1407 n.14; Larry P., 793 F.2d at 982 n.9; Groves, 776 F. Supp. at 1523-24, 1529-32; Sharif, 709 F. Supp. at 361. Many courts use the term ?equally effective? when discussing whether the alternative offered by the party challenging the test is feasible and would effectively meet the institution?s goals. See, e.g., Georgia State Conf., 775 F.2d at 1417; Sharif, 709 F. Supp. at 361. Other courts use the term ?comparably effective? in evaluating proposed alternatives. See, e.g., Elston, 997 F.2d at 1407; Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1118 (11th Cir. 1993). Review of the decisions in these cases indicates that the courts appear to be using the terms synonymously. BACK 182. Disparate impact disability discrimination may take forms that are not always amenable to analysis through the three-part approach usually applied in race or sex discrimination cases. For example, statistical evidence showing the effect of architectural barriers on persons of various types of disabilities may not be necessary. See Choate, 469 U.S. at 297-300. For this reason, disability discrimination is discussed separately. See discussion infra Chapter 2 (Legal Principles) Part III (Testing of Students with Disabilities). BACK 183. Elston, 997 F.2d at 1412. BACK 184. Georgia State Conf., 775 F.2d at 1417; see also Department of Justice, Title VI Legal Manual, p.?2. BACK 185. Different courts have used different methods for determining disparate impact. Some courts have used an 80 percent rule whereby disparate impact is shown when the rate of selection for the less successful group is less than 80 percent of the rate of selection for the most successful group. Another type of statistical analysis considers the difference between the expected and observed rates in terms of standard deviations, with the difference generally expected to be more than two or three standard deviations. Another test is known as the ?Shoben formula? in which the difference or Z-value in the groups? success rates must be statistically significant. Groves, 776 F. Supp. at 1526-28 (discussing these methods and the cases in which they were used). BACK 186. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994-97 (1988) (O?Connor, J., plurality opinion). BACK 187. Watson, 487 U.S. at 995; Groves, 776 F. Supp. at 1526-28. BACK 188. Watson, 487 U.S. at 994-95; Groves, 776 F. Supp. at 1526-27. BACK 189. When determining disparate impact in the context of a selection system, the comparison pool generally consists of all minimally qualified test takers or applicants. When tests are used to determine placement or some other type of educational treatment, the comparison is between those identified by the test for the placement or educational treatment and the relevant pool of test takers. The precise composition of the comparison pool is determined on a case-by-case basis. See Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 650-51 (1989); Watson, 487 U.S. at 995-97; Groves, 776 F. Supp. at 1525-26. BACK 190. As noted by Justice O?Connor in Watson, courts have found it ?relatively easy,? when appropriate statistical proof is presented, to identify a standardized test as causing the racial, national origin, or sex related disparity at issue. 487 U.S. at 994; see also GI Forum, 87 F. Supp. 2d at 677-79 (given legally meaningful differences in the pass rates of minority and majority students, plaintiffs made a prima facie showing of disparate impact resulting from a graduation test). BACK 191. Elements of a decision-making process that cannot be separated for purposes of analysis may be analyzed as one selection practice. See Title VII of the Civil Rights Act of 1964, 42 U.S.C. ? 2000e-2(k)(1)(B)(i). This is necessary because limiting the disparate impact analysis to a discrete component of a selection process would not allow for situations ?where the adverse impact is caused by the interaction of two or more components of the process.? Graffam v. Scott Paper Co., 870 F. Supp. 389, 395 (D. Me. 1994), aff?d, 60 F.3d 809 (1995). BACK 192. See Wards Cove, 490 U.S. at 659. BACK 193. See Board of Educ. v. Harris, 444 U.S. 130, 151 (1979); Elston, 997 F.2d at 1412. BACK 194. See Groves, 776 F. Supp. at 1529 (citing Wards Cove, 490 U.S. at 659). BACK 195. See, e.g., Debra P., 644 F.2d at 402 (indicating that the court is not in a position to determine education policy, and the state?s efforts to establish minimum standards and improve educational quality are praiseworthy). BACK 196. Wards Cove, 490 U.S. at 659; Elston, 997 F.2d at 1412 (citing Georgia State Conf., 775 F.2d at 1417-18). BACK 197. See Georgia State Conf., 775 F.2d at 1418 (showing required that ?achievement grouping practices bear a manifest demonstrable relationship to classroom education?); Sharif, 709 F. Supp. at 362 (defendants must show a manifest relationship between use of the SAT and recognition of academic achievement in high school). As explained in Elston, ?from consulting the way in which . . . [courts] analyze the ?educational necessity? issue, it becomes clear that . . . [they] are essentially requiring . . . [the educational institution to] show that the challenged course of action is demonstrably necessary to meeting an important educational goal.? Elston, 997 F.2d at 1412. In other words, the institution can defend the challenged practice on the grounds that it is ?supported by a ?substantial legitimate justification.?? Id. (quoting Georgia State Conf., 775 F.2d at 1417); see, e.g., Georgia State Conf., 775 F.2d at 1417-18; Groves, 776 F. Supp. at 1529-32. BACK 198. In general, courts have said that validity refers to the accuracy of conclusions drawn from test results. See Allen v. Alabama State Bd. of Educ., 976 F. Supp. 1410, 1420-21 (M.D. Ala. 1997) (?Generally, validity is defined as the degree to which a certain inference from a test is appropriate and meaningful,? quoting Richardson v. Lamar County Bd. of Educ., 729 F. Supp. 809, 820 (M.D. Ala. 1989), aff?d, 164 F.3d 1347 (11th Cir. 1999), injunction granted, 2000 U.S. Dist. LEXIS 123 (M.D. Ala.)); see also Richardson, 729 F. Supp. at 820-21 (?[A] test will be valid so long as it is built to yield its intended inference and the design and execution of the test are within the bounds of professional standards accepted by the testing industry.?); Anderson v. Banks, 520 F. Supp. 472, 489 (S.D. Ga. 1981) (?Validity in the testing field indicates whether a test measures what it is supposed to measure.?). BACK 199. See, e.g., United States v. LULAC, 793 F.2d 636, 640, 649 (5th Cir. 1986) (pointing to substantial expert evidence in the record, including validity studies, indicating that the tests involved were valid measures of the basic skills that teachers should have). The sponsors of the newly revised Joint Standards advise that the Joint Standards is intended to provide guidance to testing professionals in making such judgments. Joint Standards, supra note 3, at p.4. The Joint Standards is discussed more fully in Chapter One of this guide. Where the evidence indicates that the educational institution is using a test in a manner that does not lead to valid inferences, educational justification may be found lacking. Groves, 776 F. Supp. at 1530 (requiring minimum ACT score for admission to undergraduate teacher education programs violated the Title VI regulations since ACT scores had not been validated for this purpose); Sharif, 709 F. Supp. at 361-63 (in ruling on a motion for preliminary injunction, court found that the state?s use of SAT scores as the sole basis for decisions awarding college scholarships intended to reward high school achievement was not educationally justified for this purpose in that the SAT had been designed as an aptitude test to predict college success and was not designed or validated to measure past high school achievement); See Fordice, 505 U.S. at 736-37 (ruling that Mississippi?s exclusive use of ACT scores in making college admissions decisions was not educationally justified, since, among other factors, the ACT?s administering organization discouraged this practice). Numeric evidence is not the only way that validity can be demonstrated, however. Courts can draw inferences of validity from a wide range of data points. Watson, 487 U.S. at 998 (referring to procedures used to evaluate personal qualities of candidates for managerial jobs). BACK 200. See, e.g., Larry P., 793 F.2d at 980; Georgia State Conf., 775 F.2d at 1417-20; Groves, 776 F. Supp. at 1530-31. In the educational context, tests play a complex role that bears on evaluation of educational justification. As noted by the court in Larry P.,
793 F.2d at 980 (quoting Larry P., v. Riles, 495 F. Supp. 926, 969 (1979)). Because determining whether a test is a valid basis for classifying students and placing them in different educational programs may be even more complex and difficult than determining if a test validly predicts job performance, particular sensitivity is needed to all of the interests involved. The question may be not only whether a test provides valid information about a student?s ability and achievement, but whether the educational services provided to the student as a consequence of the test serve the student?s needs. Inequality in the services provided to students prior to the test, as well as in the services provided as a consequence of the test, may also be a factor considered as part of the educational justification for using a test in a particular way. See Debra P., 644 F.2d at 407-08 (agreeing with the statement that Title VI would not be violated if the test were a fair test of what students were taught); Debra P. v. Turlington, 730 F.2d 1405, 1407, 1410-11, 1416 (11th Cir. 1984) (affirming that the extent of remedial efforts to address test failure is relevant to evaluation of test use). BACK 201. See Debra P., 644 F.2d at 408. BACK 202. New York Urban League v. New York, 71 F.3d 1031, 1036 (2d Cir. 1995) (stating ?the plaintiff may still prove his case by demonstrating that other less discriminatory means would serve the same objective?); see also Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975); Richardson, 729 F. Supp. at 815. Alternative practices that have been offered for examination include procedures that consider additional types of performance information along with test results consistent with the institution?s goals. See, e.g., Sharif, 709 F. Supp. at 362063 (consideration of SAT score plus grade point average would be a better measure of high school achievement for purpose of scholarship eligibility than SAT score alone); GI Forum, 87 F. Supp. 2d at 681 (consideration of grades along with graduation test scores would not further state?s legitimate purpose in using test). BACK 203. See Wards Cove, 490 U.S. at 661 (indicating that factors such as costs or other burdens are relevant in determining whether the alternative is equally effective in serving employer?s legitimate goals); MacPherson v. University of Montevallo, 922 F.2d 766, 773 (11th Cir. 1991) (holding that plaintiff must show that the alternative is economically feasible); Sharif, 709 F. Supp. at 363-64 (finding defendant?s claim that proposed alternative was not feasible and excessively burdensome not persuasive since most other states used proposed alternative). BACK 204. Identification of Discrimination and Denial of Services on the Basis of National Origin, 35 Fed. Reg. 11595 (1970). The Department of Health, Education and Welfare was the predecessor of the U.S. Department of Education. BACK 205. Lau, 414 U.S. at 566-68. BACK 206. Lau, 414 U.S. at 568 (citing, among other legal authority, the predecessor of 34 C.F.R. ? 100.3 (b)(2)). BACK 207. Castanada v. Pickard, 648 F.2d 989, 1005-06, 1009-12 (5th Cir. 1981). The analytical framework in Castaneda which was decided under the Equal Educational Opportunities Act (EEOA), 20 U.S.C. ?? 1701 et seq., has been applied to OCR?s Title VI analysis. See Williams Memorandum, supra note 50. The EEOA contains standards related to limited English proficient students similar to the Title VI regulations. BACK 208. Castaneda, 648 F.2d at 1011. BACK 209. See discussion supra Chapter 1 (Test Measurement Principles) Part (II)(B) (Testing of Limited English Proficient Students) for a discussion of the relevant principles involved in determining the reliability and validity of tests used with limited English proficient students. BACK 210. Williams Memorandum, supra, note 50. BACK 211. Careful attention to the alignment between instructional content and testing standards is especially important for students who receive instruction that deviates from the regular curriculum. See Brookhart v. Illinois State Bd. of Educ., 697 F.2d 179, 186-87 (7th Cir. 1982) (finding that students with disabilities in special education programs were denied exposure to most of the material covered in a newly instituted graduation test). BACK 212. Indeed, Title I of the Elementary and Secondary Education Act explicitly requires states to include limited English proficient students in the statewide assessments used to hold schools and school districts accountable for student performance. Title I of the Elementary and Secondary Education Act, 20 U.S.C. ? 6311(b)(3)(F)(iii). If a school district uses the results of a test given for program accountability purposes to make educational decisions about individual students, the high-stakes use of the test must also be valid and reliable for this purpose. BACK 213. For more information on appropriate practices for testing students who are learning English, see Kopriva, Ensuring Accuracy in Testing, supra note 131. BACK 214. Although this part of the chapter deals only with students with disabilities attending public elementary and secondary schools, private schools that are not religious schools operated by religious organizations are covered by Title III of the ADA. Title III of the Americans with Disabilities Act of 1990, 42 U.S.C. ?? 12181 et seq. In addition, Title I of the Elementary and Secondary Education Act of 1965, as amended, contains important provisions regarding students with disabilities in the Title I program and their participation in assessments of Title I programs. See 20 U.S.C. ? 6311(b)(3)(F). BACK 215. Individuals with Disabilities Education Act, 20 U.S.C. ? 1400(d)(1)(c). BACK 216. The Section 504 regulation is found at 34 C.F.R. Part 104. The Title II regulation is found at 28 C.F.R. Part 35. The IDEA regulation is found at 34 C.F.R. Part 300. BACK 217. 28 C.F.R. ? 35.130(b)(3); 34 C.F.R. ? 104.4(b)(4). In Guardians Association, the United States Supreme Court upheld the use of the effects test in the context of Title VI, stating that the Title VI regulation forbids the use of federal funds, ?not only in programs that intentionally discriminate on racial grounds but also in those endeavors that have a [racially disproportionate] impact on racial minorities.? 463 U.S. at 589. BACK 218. See 34 C.F.R. ? 104.35(b) (specific provisions covering the use of tests for evaluation purposes). BACK 219. See 34 C.F.R. ? 104.35(c) (requiring placement decisions to consider information from a variety of sources). BACK 220. 34 C.F.R. ?? 104.35(b)(3), 300.532. BACK 221. Brookhart, 697 F.2d at 183-84. Some courts have held that a student with a disability may be denied a diploma if, despite receiving appropriate services and testing accommodations, the student, because of the disability, is unable to pass the required test or meet other graduation requirements. Id., at 183; Anderson, 520 F. Supp. at 509-11; Board of Educ. v. Ambach, 458 N.Y.S.2d 680, 684-85, 689 (N.Y. App. Div. 1982), aff?d, 469 N.Y.S.2d 669 (1983). BACK 222. 20 U.S.C. ? 1412(a)(17); 34 C.F.R. ? 300.138(a). BACK 223. 34 C.F.R. ? 300.138(b). The IDEA Final Regulations, Attachment I?Analysis of Comments and Changes, 64 Fed. Reg. 12406, 12564 (1999), projects that there will be a relatively small number of students who will not be able to participate in the district or state assessment program with accommodations and modifications, and will therefore need to be assessed through alternate means. These alternate assessments must be developed and conducted beginning not later than July 1, 2000. BACK 224. See 34 C.F.R. ? 300.347(a)(5) (IEP requirements applicable to assessment of students with disabilities under IDEA); 34 C.F.R. ? 104.33 (more general evaluation requirements under Section 504). BACK 225. 34 C.F.R. ? 300.347(a)(5) BACK 226. 34 C.F.R. ?? 300.507, 104.36. BACK 227. Under the Section 504 regulation, a qualified person with a disability for purposes of post-secondary education is an individual with a disability within the meaning of the regulation who meets the academic and technical standards for admission. 34 C.F.R. ?? 104.3(j), 104.3(k). BACK 228. Test providers that are not higher education institutions may be covered by Section 504 if they receive federal funds; by Title II if they are parts of governmental units; or by Title III if they are private entities. Each of these laws has its own requirements. For more information regarding testing under Title III of the ADA, consult the U.S. Department of Justice. BACK 229. 34 C.F.R. ? 104.42(b)(2). Appendix A to the Section 504 regulation, Subpart E-Post-secondary Education, No. 29, notes that the party challenging the test would have the burden of showing that alternate tests with less disparate impact are available. BACK 230. 34 C.F.R. ? 104.42(b)(3). BACK 231. Some undergraduate college programs require students to pass a rising junior examination to determine whether students have met the college?s standards in writing or other academic skills as a prerequisite for advancement to junior year status. BACK 232. 34 C.F.R. ?? 104.44(a), 104.44(d). BACK 233. See, e.g., Kaltenberger v. Ohio College of Podiatric Medicine, 162 F.3d 432, 437 (6th Cir. 1998). BACK 234. See 34 C.F.R. ? 104.44(a). BACK 235. Southeastern Community College v. Davis, 442 U.S. 397, 413 (1979); Wynne v. Tufts Univ. Sch. of Medicine, 976 F.2d 791, 794-96 (1st Cir. 1992), cert. denied, 507 U.S. 1030 (1993). BACK 236. The U.S. Department of Education, Office for Civil Rights, does not have jurisdiction to resolve constitutional cases. However, some cases involve constitutional issues that overlap with discrimination issues arising under federal civil rights laws. BACK 237. Federal cases may also involve equal protection challenges to a jurisdiction?s use of tests in which the claim is not based on race or sex discrimination, but instead on the alleged impropriety of the jurisdiction?s use of the test in making educational decisions. As a general matter, courts express reluctance to second guess a state?s educational policy choices when faced with such challenges, although recognize that a state cannot ?exercise that [plenary] power without reason and without regard to the United States Constitution.? Debra P., 644 F.2d at 403. When there is no claim of discrimination based on membership in a suspect class, the equal protection claim is reviewed under the rational basis standard. In these cases, the jurisdiction need show only that the use of the tests has a rational relationship to a valid state interest. Id., at 406; see also Erik V. v. Causby, 977 F. Supp. 384, 389 (E.D.N.C. 1997). BACK 238. A review of relevant cases reveals the highly fact- and context-specific nature of the conclusions reached by federal courts considering alleged violations of the due process clause. In Debra P., the Fifth Circuit held that students? due process rights were violated when a newly imposed minimum competency test required for high school graduation was instituted without adequate notice and an opportunity for students to learn the material covered by the test. 644 F.2d at 404. Three years later, in Debra P. v. Turlington, the court held that students who now had six years notice of the exam were afforded the opportunity to learn the relevant material, given the state?s remedial programs. 730 F.2d at 1416-17. For additional courts identifying due process violations in the way in which a competency test was instituted, see Brookhart, 697 F.2d at 186-87 (holding that district-required minimum competency test for graduation denied due process to students with disabilities where notice was inadequate and students had not been exposed to 90 percent of the material covered by the test); Crump v. Gilmer Indep. Sch. Dist., 797 F. Supp. 552, 556-57 (E.D. Tex. 1992) (granting temporary restraining order where district had not demonstrated validity of graduation examination in light of actual instructional content); Anderson, 520 F. Supp. at 508-09 (finding that school district failed to show that minimum competency test required for high school graduation covered material actually taught at school). Other cases have concluded that adequate notice was provided, the test or criterion at issue was closely related to the instructional program, or the promotion decision was not shown to be outside the discretion of school authorities. See Erik V., 977 F. Supp. at 389-90 (finding that promotion decision was within proper purview of school authorities); Williams v. Austin Indep. Sch. Dist., 796 F. Supp. 251, 253-54 (W.D. Tex. 1992) (considering students to have had seven years advance notice of high school competency exam although standards of performance were recently raised). Also relevant are promotion cases in which students were required to demonstrate adequate reading skills, although a separate test was not apparently involved. See Bester v. Tuscaloosa City Bd. of Educ., 722 F.2d 1514, 1516 (11th Cir. 1984) (finding reading standards required for promotion to merely reinforce district policy of retention for substandard work); Sandlin v. Johnson, 643 F.2d 1027, 1029 (4th Cir. 1981) (finding denial of second-grade promotion for failing to attain required level in reading series within discretion of school district). For a testing case raising similar due process issues at the post-secondary level, see Mahavongsanan v. Hall, 529 F.2d 448, 450 (5th Cir. 1976) (finding no violation of due process where the university?s decision to require a comprehensive examination for receipt of a graduate degree was a reasonable academic regulation, plaintiff received timely notice that she would be required to take the examination, she was allowed to retake the test, and the university afforded her an opportunity to complete additional course work in lieu of the examination). BACK 239. See Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 226-27 (1985); Debra P., 644 F.2d at 406; Anderson, 520 F. Supp. at 506. BACK 240. See Ewing, 474 U.S. at 222, 226-27. (acknowledging that courts will not review academic decisions of colleges and universities unless the decision is such a substantial departure from accepted academic norms as to demonstrate that professional judgment was not actually exercised or where discrimination is claimed); Debra P., 644 F.2d at 402 (finding praiseworthy a state?s effort to set standards to improve public education). BACK 241. The determination as to whether a testing program is rationally related to a legitimate educational goal has been considered under the Fourteenth Amendment as an issue of substantive due process. See Debra P., 644 F.2d at 404-06; Anderson, 520 F. Supp. at 506. Insofar as due process cases may involve other technical questions of the validity of the test used to address the institution?s goals, these issues are discussed in the portions of the guide addressing discrimination under federal civil rights laws. BACK 242. Although there are important exceptions, (United States v. LULAC, 793 F.2d 636, 648 (5th Cir. 1986), and Anderson, 520 F. Supp. at 505), courts have often considered the issue of adequate notice to be one of procedural due process. For procedural due process to apply, a protected property or liberty interest must be identified. See Brookhart, 697 F.2d at 185 (identifying a liberty interest, based on stigma of diploma denial, that disastrously affected plaintiffs? future employment and educational opportunities); Debra P., 644 F.2d at 404 (finding sufficient to trigger due process protection a state-created mutual expectation that students who successfully complete required courses would receive diploma); Erik V., 977 F. Supp. at 389-90 (finding no property interest in grade-level promotion warranting preliminary injunction). BACK 243. See Brookhart, 697 F.2d at 186-88; Debra P., 644 F.2d at 404. BACK 244. See Debra P., 730 F.2d at 1407, 1410-12, 1415-16; Anderson, 520 F. Supp. at 505. BACK 245. Re-testing was available in Erik V., 977 F. Supp. at 388-89, and in Anderson, 520 F. Supp. at 505. BACK 246. See Erik V., 977 F. Supp. at 387 (reading performance of students with grades of A, B, or C on grade-level work was further reviewed by teacher and principal to determine if student should be promoted notwithstanding the failing test score). BACK 247. The question of opportunity to learn (sometimes called instructional or curricular validity) may be posed as one of substantive due process. See Debra P., 644 F.2d at 406; Anderson, 520 F. Supp. at 509. BACK 248. See Debra P., 644 F.2d at 407 (where black students disproportionately failed a statewide test necessary to obtain a high school diploma, and, due to the prior dual school system, black students received a portion of their education in unequal, inferior segregated schools, and where the state was unable to show that the diploma sanction did not perpetuate the effects of that past intentional discrimination, the court found that immediate use of the diploma sanction punished the black students for deficiencies created by the dual school system in violation of their constitutional right to equal protection); Debra P., 474 F. Supp. 244, 257 (M.D. Fla. 1979) (?punishing the victims of past discrimination for deficits created by an inferior educational environment neither constitutes a remedy nor created better educational opportunities?). BACK 249. See Anderson v. Banks, 540 F. Supp. 761, 765 (S.D. Ga. 1982). BACK
|
||||
|
This page last modified March 8, 2001 (ts) |
