1 National Commission on Excellence and Education, A Nation at Risk: Imperative for Educational Reform (1983).
2 See Martha Minow, Reforming School Reform, 68 Fordham L. Rev. 257, 257 n.2 (1999).
3See Michael Dannenberg, Note, A Derivative Right to Education: How Standards-Based Education Reform Redefines the Individuals with Disabilities Education Act, 15 Yale L. & Pol’y Rev. 628, 642 (1997).
4 The Elementary and Secondary Education Act was signed into law by President Lyndon B. Johnson on April 11, 1965. President Johnson had made federal aid for education an important component of his Great Society agenda. John F. Jennings, the director of the Center on Education Policy, argues that the 1965 law was “‘the landmark . . . that paved the way’ for an increasingly large federal presence in education policy”. See Erik Robelen, The Evolving Federal Role, Educ. Wk., Nov. 17, 1999, at 34 (1999).
5 See 20 U.S.C. § 6311(b)(1)(A), (b)(3)(F)(i) (1994); 20 U.S.C. § 5802(a)(1) (1994).
6 “High-stakes tests” are generally standardized tests that are used as a gate-keeper for the attainment of some goal. This Note focuses primarily on graduation and diploma decisions as they are impacted by high-stakes tests. Examples of some other goals include “student placement in gifted and talented programs or in programs serving students with limited-English proficiency; determinations of disability and eligibility to receive special education services; student promotion from one grade to another; . . . and admission decisions and scholarship awards.” U.S. Dept. of Educ. Off. for Civ. Rts., The Use of High Stakes Tests When Making High-Stakes Decisions for Students: A Resource Guide for Educators and Policymakers 2 (Jul. 6, 2000) (unpublished manuscript, on file with the Boston College Law Review).
The U.S. Department of Education Office for Civil Rights (“OCR”) is in the midst of developing a resource guide for educators and policymakers concerning the use of high-stakes tests. The July 2000 draft identifies the guide as “an effort to assemble the best information regarding psychometric standards, legal principles, and resources to help educators and policymakers frame strategies and programs that promote learning to high standards in ways consistent with federal non-discrimination law.” See id., Introductory Letter, at 2. The guide is explicit that it is intended to reflect existing legal principals and does not establish new federal regulations or requirements. See id. at 3, 5 & n.99.
7 See generally 20 U.S.C. 6311 (1994 & Supp. II 1996).
8 34 C.F.R. § 300.7 (1999).
9 See U.S. Dept. of Educ. Off. for Civ. Rts., supra note 6, at 35, 82. States typically provide accommodations to students with disabilities, including allowing students to have an unlimited amount of time to complete the test, allowing adults to read portions of the test to the student and allowing manipulatives and other assistive devices. Each one of these accommodations must be included in the student’s IEP, see 20 U.S.C. § 1414(d)(1)(A)(v)(I) (Supp. III 1997), and, depending on the state, may result in a student’s scores being “flagged.” See Students with Disabilities and Standards-Based Reform 184 (Lorraine M. McDonnell et al. eds., 1997) [hereinafter Educating One and All]; Martha Thurlow et al., Testing Students with Disabilities: Practical Strategies for Complying with District and State Requirements 27–66, 87–94 (1998) [hereinafter Testing Students with Disabilities].
10 U.S. Dept. of Educ., State-Wide Assessment Programs: Including Students with Disabilities, in Research Connections 3 (1998) [hereinafter State-wide Assessment Programs].
11 Martha Thurlow et al., Alternate Assessments for Students with Disabilities, Policy Directions, Oct. 1996, at 2 [hereinafter Alternate Assessments for Students with Disabilities]. Because of the individualized nature of accommodation/alternate assessment decisions, commentators may arrive at different estimates of the number of students who should participate in alternate assessments. See, e.g., Testing Students with Disabilities, supra note 9, at 68 (1998) (estimating that only about 10% of students with disabilities would participate in alternate assessments).
12 See 20 U.S.C. § 1412(a)(17)(A)(ii) (Supp. III 1997).
13 Judy Elliott et al., Assessment Guidelines that Maximize the Participation of Students with Disabilities in Large-Scale Assessments: Characteristics and Considerations 6 (1996) [hereinafter Characteristics and Considerations].
14 U.S. Dept. of Educ. Off. for Civ. Rts., supra note 6, Introductory Letter, at 2.
15 When states offer this kind of differentiated diploma, the test may provide increased incentives for teachers and students. At the same time, students who pass their courses may still graduate or receive a certificate of completion. This type of system could also decrease the motivation for some students to pass the test. Some commentators “argue that differentiated diplomas stigmatize students; others feel that giving a standard diploma to [students with disabilities] devalues the credential and corrupts the educational process.” See National Research Council, High Stakes: Testing for Tracking Promotion, and Graduation 180–81, 194 (Jay P. Heubert & Robert M. Hauser eds., 1999) [hereinafter High Stakes]; see also Educating One and All, supra note 9, at 205. Differentiated diploma systems also raise questions about narrowing the curriculum and may result in high standards only for a small subset of students for whom the test does not pose a significant challenge. As the National Research Council points out: “Research evidence on these questions is generally lacking,” and they are therefore beyond the scope of this Note. See High Stakes at 194.
16 See infra notes 21–64 and accompanying text.
17 See infra notes 65–162 and accompanying text.
18 See infra notes 163–190 and accompanying text.
19 See infra notes 191–236 and accompanying text.
20 See infra notes 237–246 and accompanying text.
21 See, e.g., Brown v. Board of Educ., 347 U.S. 483, 493 (1954) (“Today, education is perhaps the most important function of state and local governments.”); Cummings v. Board of Educ., 175 U.S. 528, 545 (1899) (“[T]he education of people in schools maintained by state taxation is a matter belonging to the respective States, and any interference on the part of the Federal authority with the management of such schools can not be justified except in the case of a clear and unmistakable disregard of the rights secured by the supreme law of the land.”).
22 See U.S. Const., art. I, § 8. See generally Steward Machine v. Davis, 301 U.S. 548 (1937) (upholding spending power act designed to encourage states to develop unemployment compensation systems).
23 See, e.g., Brown, 347 U.S. at 493; U.S. Dept. of Educ. Off. for Civ. Rts., supra note 6.
24 See 20 U.S.C. §§ 1412(a) (Supp. III 1997); 5886(a) (1994); 6311(a) (1994).
25 National Center for Educ. Statistics, Digest of Education Statistics, 1998: Chapter 4. Federal Programs for Education and Related Activities (visited Feb. 12, 2000) <http://nces.ed.gov/ pubs99/digest98/d98t367.html>; U.S. Dep’t. of Educ., Office of Special Education Programs Congressional Notification of Grant Awards (visited Feb. 12, 2000) <http://www.ed.gov/ offices/OSERS/OSEP/PartBAllCombined.html>. Recently, the Court of Appeals for the Eighth Circuit questioned whether states subject themselves to suit by accepting federal funds under IDEA. See Jim C. v. Arkansas Dep’t. of Educ., 197 F.3d 958 (8th Cir. 1999) (vacating without opinion the portions of Bradley v. Arkansas Dep’t. of Educ., 189 F.3d 745 (8th Cir. 1999), that addressed spending power).
26 See Martin Gerry, Service Integration and Beyond: Implications for Lawyers and Their Training, in Law and School Reform: Six Strategies for Promoting Educational Equity 244, 247 (1999).
27 Diana Pullin, Law and Practice: The Testing and Assessment of Students with Disabilities, in Legal Rights in Education: Pendulum Swings, Conference Papers of the 44th Annual Conference of the Education Law Association 37, 40 (1998); see also Characteristics and Considerations, supra note 13, at 1.
28 See 20 U.S.C. § 5886(c)(1)(A) (1994).
29 See id. § 5802(a)(1).
30 See id. § 5886(c)(1)(B); Pullin, supra note 27, at 40.
31 See 20 U.S.C., § 5886(c)(1)(B)(i)(III); Pullin, supra note 27, at 40.
32 See 20 U.S.C. §§ 5811, 5812. The goals are stated broadly with some objectives attached to clarify each goal. For example, the section on Mathematics and Science provides:
(A) By the year 2000, United States students will be first in the world in mathematics and science achievement.
(B) The objectives for this goal are that—
(i) mathematics and science education, including the metric system of measurement, will be strengthened throughout the system, especially in the early grades;
(ii) the number of teachers with a substantive background in mathematics and science, including the metric system of measurement, will increase by 50 percent; and
(iii) the number of United States undergraduate and graduate students, especially women and minorities who complete degrees in mathematics, science, and engineering will increase significantly.
Id. § 5812(5).
33See id. § 6311(b)(3)(F)(i)–(ii); Pullin, supra note 27, at 40–41.
34See 20 U.S.C. § 6311(b)(3)(C).
35See id. § 6311(b)(3)(H)–(I).
36 H.R. Rep. No. 103–425, at 5 (1994), reprinted in 1994 U.S.C.C.A.N. 2807, 2811 (emphasis added).
37 IDEA was originally promulgated as the Education for All Handicapped Children Act of 1975, Pub. L. No. 94–142, 89 Stat. 773 (codified as amended at 20 U.S.C. § 1400 (Supp. III 1997)).
38 20 U.S.C § 1401(a)(25) (Supp. III 1997).
39 Id. § 1400(d)(1)(A).
40 See id. § 1414(d)(1)(A).
41 Id.
42 Id. § 1414(d)(1)(B).
43 20 U.S.C. § 1414(d)(3)(A) (Supp. III 1997).
44 Id. § 1414(d)(4).
45 See id. § 1412(a)(17).
46 See id. § 1414(d).
47 See id. § 1414(d)(1)(A)(v).
48 See 20 U.S.C. § 1412(a)(17) (Supp. III 1997).
49 See High Stakes, supra note 15, at 198; Pullin, supra note 27, at 37–38.
50 See, e.g., Kilcullen v. New York State Dep’t. of Labor, 205 F.3d 77, 81–82 (2d Cir. 2000) (holding that “Congress has validly abrogated the States’ immunity from suit under both the ADA and Section 504 of the Rehabilitation Act); Dare v. California, 191 F.3d 1167, 1175 (9th Cir. 1999) (“[t]he ADA was a congruent and proportional exercise of Congress’ enforcement powers under § 5 of the Fourteenth Amendment that abrogated Eleventh Amendment immunity”). But see Alsbrook v. Maumelle, 184 F.3d 999, 1002 (8th Cir. 1999) (“[w]e find that . . . the ADA . . . exceeds Congress’ authority under Section 5 of the Fourteenth Amendment”).
51 See High Stakes, supra note 15, at 198; Pullin, supra note 27, at 37–38; see also, U.S. Dept. of Educ. Off. for Civ. Rts., supra note 6, at 60.
52 See 34 C.F.R. § 100.3(b)(2) (1998); 34 C.F.R. pt. 104 (1999); U.S. Dept. of Educ. Off. for Civ. Rts., supra note 6, at 60.
53 See Pullin, supra note 27, at 38 (citing 34 C.F.R. § 104.4(b)(2) (1998)); see also High Stakes, supra note 15, at 198; cf. Brookhart v. Illinois Bd. of Educ., 697 F.2d 179, 184 (7th Cir. 1983).
54 Jackson County (WV) Schools, Educ. Handicapped L. Rptr. 257:324 (1981).
55 Id.
56 Id.
57 Id. at 257:326.
58 U.S. Dept. of Educ. Off. for Civ. Rts., supra note 6, at 61.
59 See High Stakes, supra note 15, at 58, 188–203; U.S. Dept. of Educ. Off. for Civ. Rts., supra note 6, at 51.
60 See 42 U.S.C. § 12132 (1994); Pullin, supra note 27, at 39.
61 See 42 U.S.C. § 12189 (1994).
62 See id. §§ 12181–12189; U.S. Dept. of Educ. Off. for Civ. Rts., supra note 6, at 51 & n.151.
63 See 28 C.F.R. § 36.309 (1999). The regulation specifically applies to “[a]ny private entity that offers examinations or courses related to . . . credentialing for secondary or postsecondary education.” 28 C.F.R. § 36.309(a) (1999).
64 28 C.F.R. § 36.309(b)(1) (1999).
65 See 20 U.S.C. § 6311(b) (1994 & Supp. II 1996).
66 See 20 U.S.C. § 1412(a)(1) (Supp. III 1997).
67 See id. §§ 1412, 6311.
68 See 20 U.S.C. § 6311 (1994 & Supp. II 1996). Compare Mass. Gen. Laws ch. 69, §§ 1D, 1E, 1I (1996), with Cal. Educ. Code § 60600–60614 (Supp. 2000), Ky. Rev. Stat. Ann. §§ 158.645–.6458 (Michie 1996 & Supp. 1999), and Mich. Comp. Laws §§ 15.41278–.41283 (1996 & Supp. 1999).
69 Arthur Coleman, Excellence and Equity in Education: High Standards for High Stakes Tests, 6 Va. J. Soc. Pol’y & L. 81, 84–85 (1998).
70 Id. at 85.
71 The National Research Council is made up of members of the National Academy of Sciences, the National Academy of Engineering, and the Institute of Medicine. Congress commissioned the Council to:
[C]onduct a study and make written recommendations on appropriate methods, practices, and safeguards to ensure that—
(1) existing and new tests that are used to assess student performance are not used in a discriminatory manner or inappropriately for student promotion, tracking or graduation; and
(2) existing and new tests adequately assess student reading and mathematics comprehension in the form most likely to yield accurate information regarding student achievement of reading and mathematics skills.
Pub. L. No. 105–78, § 309, 111 Stat. 1467, 1506 (1997). The Council was required to report to Congress by September 1, 1998. Pub. L. No. 105–78, § 309, 111 Stat. 1467, 1506–07 (1997).
72 See High Stakes, supra note 15, at 4.
73 Id.
74 See Coleman, supra note 69, at 85.
75 See Coleman, supra note 69, at 93; S.E. Phillips, High-Stakes Testing Accommodations: Validity Versus Disabled Rights, 7 J. of Applied Measurement in Educ. 93, 108 (1994); see also Brookhart, 697 F.2d 179; Debra P. v. Turlington, 644 F.2d 397 (5th Cir. Unit B 1981).
76 See Goss v. Lopez, 419 U.S. 565, 579 (1975); Debra P., 644 F.2d at 404.
77 See Brookhart, 697 F.2d at 184; Debra P., 644 F.2d at 404; GI Forum v. Texas Educ. Auth., 87 F. Supp. 2d 667, 682 (W.D. Tex. 2000). But see Coleman, supra note 69, at 94 (“the more widely accepted view appears to be that the denial of promotion opportunities or of the opportunity to graduate at a particular time . . . is not a constitutionally protected property interest”).
78 See U.S. Dept. of Educ. Off. for Civ. Rts., supra note 6, at 17; see also High Stakes, supra note 15 at 64–65; Debra P., 644 F.2d at 404–06.
79 See Coleman, supra note 69, at 95; see also U.S. Dept. of Educ. Off. for Civ. Rts., supra note 6, at 18 (asserting that the standard is “arbitrary and capricious”).
80 See Brookhart, 697 F.2d at 185; Debra P., 644 F.2d at 404; see also U.S. Dept. of Educ. Off. for Civ. Rts., supra note 6, at 18; High Stakes, supra note 15, at 63–64.
81 See U.S. Dept. of Educ. Off. for Civ. Rts., supra note 6, at 18; High Stakes, supra note 15, at 63–64.
82 See U.S. Dept. of Educ. Off. for Civ. Rts., supra note 6, at 18. Compare Brookhart, 697 F.2d at 182 (holding that two years was insufficient notice and that parents of students affected may not have received actual notice), with Debra P., 644 F.2d at 407 & n.16 (holding that less than four years constituted insufficient notice).
83 See Debra P., 644 F.2d at 404; see also Brookhart, 697 F.2d at 186. Although the notion of fundamental fairness bears some resemblance to substantive due process, courts have generally included it as part of a procedural due process analysis in this context. See id.
84 See Brookhart, 697 F.2d at 187; Debra P., 644 F.2d at 404; U.S. Dept. of Educ. Off. for Civ. Rts., supra note 6, at 18–19.
85 See Coleman, supra note 69, at 95–96. But see GI Forum, 87 F. Supp. 2d at 671 (upholding Texas Assessment of Academic Skills test as having been properly administered even when “the policies [were] not perfect”).
86 See Debra P., 644 F.2d at 405. Validity is a construct of the professional standards with regard to testing and is discussed infra notes 136–152 and accompanying text.
87 See U.S. Dept. of Educ. Off. for Civ. Rts., supra note 6, at 21–22.
88 See 42 U.S.C. § 2000d (1994). Title VI prohibits discrimination on the basis of race, color or national origin.
89 20 U.S.C. § 1681 (1994). Title IX prohibits discrimination on the basis of gender.
90 See, e.g., Larry P. v. Riles, 793 F.2d 969, 980 (9th Cir. 1984) (holding that use of intelligence tests for Special Education classification could be challenged under, inter alia, Section 504); GI Forum, 87 F. Supp. 2d at 676–77 (holding that suit challenging Texas Assessment of Academic Skills was appropriately challenged under Title VI); Sharif v. New York State Educ. Dep’t, 709 F. Supp. 345, 361 (S.D.N.Y. 1989) (holding that Title IX could be used to challenge New York’s use of the Scholastic Achievement Test as a measure of high school achievement).
91 See Larry P., 793 F.2d at 982; 34 C.F.R. §§ 100.3(b)(2), 106.21(b)(2), 104.4(b)(4) (1999); 28 C.F.R. § 35.130(b)(3) (1999); U.S. Dept. of Educ. Off. for Civ. Rts., supra note 6, at 12.
92 See Coleman, supra note 69, at 100; see also High Stakes, supra note 15, at 58–59.
93 Coleman, supra note 69, at 99.
94 High Stakes, supra note 15, at 59.
95 See id.; Coleman, supra note 69, at 100; see also Board of Educ. v. Harris, 444 U.S. 130, 155 (1979) (upholding legal standard of educational necessity).
96 See High Stakes, supra note 15, at 59. For a discussion of the professional standards in the context of high-stakes tests, see infra notes 140–163.
97 Coleman, supra note 69, at 99; see also High Stakes, supra note 15, at 62.
98 See Sharif, 709 F. Supp. at 363–64 (finding that the state’s claim that alternative was not feasible and was excessively burdensome was not persuasive where other states used the proposed alternative); see also U.S. Dept. of Educ. Off. for Civ. Rts., supra note 6, at 56–57.
99 See Coleman, supra note 69, at 101.
100 Debra P., 644 F.2d at 408.
101 See id. at 405.
102 Id. at 406.
103 Id. (quoting Debra P. v. Turlington, 474 F. Supp. 244, 260 (M.D. Fla. 1979)).
104 Id. at 404.
105 See 697 F.2d 179 (7th Cir. 1983).
106 See id. at 182–85.
107 See id. at 183; see also Board of Educ. v. Rowley, 458 U.S. 176, 192 (1982) (“[T]he intent of the Act was more to open the door of public education to handicapped children than to guarantee any particular level of education once inside.”).
108 See Brookhart, 697 F.2d at 183.
109 See id. at 184.
110 See id. Arthur Coleman, former Deputy Assistant Secretary for Civil Rights at the U.S. Department of Education, summarizes the foregoing analysis into a four-part examination to determine whether high-stakes tests meet the goals of educational excellence and legal soundness. See Coleman, supra note 69, at 107–08. The first part of Coleman’s examination is to “establish in clear terms the objectives of high-stakes tests” in order to ensure the test is a valid measure of what it claims to assess. Id. at 108–09. Once a test is determined to be based on clearly-articulated objectives, Coleman considers the methodology of administration and interpretation of the test to “help eliminate the risk of inappropriately denying (or conferring) educational opportunities to students based [solely] on their scores.” Id. at 109. The third step to Coleman’s examination is aimed at ensuring that the test was developed in a way that provided students and parents with sufficient notice that standards were being implemented and that assessments based on those standards would ultimately have high-stakes consequences. See id. at 111–12. The fourth and final part of Coleman’s examination of tests requires that “educators should periodically monitor test results to determine if there are significant disparities among student groups based on race, national origin, gender or disability.” See id. at 112.
111 See Andrea Tortora, Ky. Leads Special-ed Test Efforts, Cin. Enquirer, Aug. 31, 1999, at B1.
112 Andrea Tortora & Richard Whitmire, Schools Can Raise Scores by Exclusion: Special-ed Students Left Out, Cin. Enquirer, August 31, 1999, at B1.
113 Andrea Tortora & Richard Whitmire, Successful School’s Scores Plummet: Dramatic Change Linked to Dropping Exemption of Special Ed Students, Det. News, Sept. 3, 1999, at 1.
114 See High Stakes, supra note 15.
115 See id. at 189.
116 See id. at 193.
117 See id.
118 See id.
119 See High Stakes, supra note 15, at 193.
120 See id. at 189.
121 See id.
122 See id.
123 See id.
124 See High Stakes, supra note 15, at 189; 20 U.S.C. § 1412(a)(17) (Supp. III 1997).
125 See U.S. Dept. of Educ. Off. for Civ. Rts., supra note 6, at 48.
126 See High Stakes, supra note 15, at 190.
127 See id. at 193.
128 See id. at 195.
129 See id. at 199.
130 See Educating One and All, supra note 9.
131 See High Stakes, supra note 15, at 199; Educating One and All, supra note 9, at 177–93.
132 See High Stakes, supra note 15, at 199; Educating One and All, supra note 9, at 177–78.
133 See High Stakes, supra note 15, at 199; Educating One and All, supra note 9, at 179–82. One method for dealing with the problem of artificially inflated scores is to “flag” non-standard administrations of the test. However, since flagged scores rarely are accompanied by descriptions of the individual or the nature of the accommodations offered, flagging does not really help users interpret scores more appropriately. Moreover, “in the case of scores reported for individual students, flagging identifies the individual as having a disability, raising concerns about confidentiality and stigma.” Educating One and All, supra note 9, at 184.
134 See High Stakes, supra note 15, at 199; Educating One and All, supra note 9, at 180–81.
135 See High Stakes, supra note 15, at 199; Educating One and All, supra note 9, at 193 (emphasis added).
136 See High Stakes, supra note 15, at 294–95. Congress explicitly requested that the NRC submit “written recommendations on appropriate methods, practices and safeguards to ensure that . . . existing and new tests that are used to assess student performance are not used in a discriminatory manner or inappropriately for student promotion, tracking or graduation. . . .” Pub. L. No. 105–78, 111 Stat. 1467, 1506.
137 High Stakes, supra note 15, at 294.
138 Id. at 295.
139 American Educational Research Association, American Psychological Association, and the National Council on Measurement in Education, Standards for Educational and Psychological Testing at v (1999). [hereinafter APA Standards]. The American Psychological Association (“APA”) published the original version of the standards in 1954. In 1955, the American Educational Research Association (“AERA”) joined with the National Council on Measurement in Education (“NCME”) to publish a second version of the standards. In 1966, the AERA, APA and NCME joined together to publish a new set of standards, and have continued to revise them as a Joint Committee since then. APA Standards, supra, at v.
140 Id. at 1.
141 Id. at 146.
142 See id. at 16–17 (emphasis added); see also Debra P., 644 F.2d at 405.
143 APA Standards, supra note 139, at 9.
144 See id.
145 See, e.g., Debra P., 644 F.2d at 405–06, 408 (finding that a test to determine high school graduation would be invalid if the state could not show that students were taught the material being tested).
146 See Coleman, supra note 69, at 106.
147 See id. at 103.
148 See APA Standards, supra note 139, at 145.
149 See U.S. Dept. of Educ. Off. for Civ. Rts., supra note 6, at 26. Because students with disabilities represent a small subset of all students, validity evidence for these students may need to accumulate over time in order to have a sufficiently large sample size. See id. at n.133.
150 See id. at 19–20.
151 See id. at 20.
152 See APA Standards, supra note 139, at 21, 23, 118.
153 Id. at 118.
154 Id.
155 Id. at 107.
156 APA Standards, supra note 139, at 107–08.
157 Id. at 104.
158 Id.
159 See State-Wide Assessment Programs, supra note 10, at 4.
160 Alternate Assessments for Students with Disabilities, supra note 11, at 2.
161 See id.
162 Id. at 3–4.
163 See 615 N.E.2d 516, 548, 555 (Mass. 1993).
164 See generally Mass. Gen. Laws ch. 69 (1996). The MERA is a $5 billion plan that will have doubled the state’s spending on education by 2000. See Quality Counts ’99, 18 Educ. Wk., Special Rep., at 151 (1999).
165 See Mass. Gen. Laws ch. 69, § 1I (1996). Educators have begun to level criticism at the state for relying on a single test in assessing education in Massachusetts. Jacob Ludes III, Executive Director of the New England Association of Schools and Colleges, the agency that sets accreditation standards for most Massachusetts high schools, recently railed against the MCAS in a statement to educators and state legislators. Ludes stated: “The notion that a single high-stakes test can be used to set policy, and reward or punish schools and the children in them, is indeed appalling. . . . The idiosyncrasies of the day, the validity of the items, the bias of the test maker, the conditions of the test site, and a score of other variables can compromise assessment based on a single instrument.” See Marissa Katz, Top Educator Attacks Emphasis on MCAS Scores, Providence J., Feb. 2, 2000, at C1.
166 Mass. Gen. Laws ch. 69, § 1I (1996).
167 See id.; Mass. Regs. Code tit. 603, § 30.00 (2000).
168 See Mass. Gen. Laws ch. 69, §§ 1D, 1E (1996). The Curriculum Frameworks are “academic standards for the core subjects of mathematics, science and technology, history and social science, English, foreign languages and the arts.” Id. They cover grades kindergarten through twelve and “set forth the skills, competencies and knowledge expected to be possessed by all students at the conclusion of individual grades or clusters of grades.” Id. They are designed “to set high expectations of student performance and to provide clear and specific examples that embody and reflect these high expectations.” Id.
169 20 U.S.C. §§ 5812(1)(A), 6311(b)(a)(A) (1994); see also 20 U.S.C. § 1412(a)(17) (Supp. III 1997) (IDEA); supra notes 22–37.
170 See, e.g., Andrea Downs, Protest Multiplies Over Changes to Math Standards, Boston Globe, Feb. 23, 2000, at B2 (referring to “the math war”); Dina Gerdeman, New Math Curriculum Protested/Teachers Persuade State to Slow Down, Patriot Ledger, Feb. 24, 2000, at 15; Doug Hanchett, Board OKs Math Guide in Face of Furious Criticisms, Boston Herald, Feb. 24, 2000, at 10.
171 See U.S. Dept. of Educ. Off. for Civ. Rts., supra note 6, at 18; High Stakes, supra note 15, at 63–64.
172 See supra note 82 and accompanying text.
173 See Mass. Gen. Laws ch. 69, § 1A (1996).
174 See 20 U.S.C. § 1412 (Supp. III 1997).
175 See 1972 Mass. Acts ch. 766, § 11.
176 Mass. Regs. Code tit. 603, § 28.05(4)(b) (2000).
177 Massachusetts Dep’t. of Educ., The Massachusetts Comprehensive Assessment System: Requirements for the Participation of Students with Disabilities (A Guide for Educators and Parents) (1999) [hereinafter DOE Guide].
178 Id. at 6.
179 Id.
180 See id. at 9–11 app. A.
181 Id. at 13. Two weeks before the 1999 MCAS administration, the Department of Education announced that the use of a scribe would not be considered an appropriate accommodation as it had been in 1998. See Jordana Hart, Special Education Faces MCAS Trial, Boston Globe, Apr. 21, 1999, at B5. Although it was difficult to tell how many students were effected by this change, many schools whose students previously participated in the test with this accommodation were forced to create new alternate assessments for those students. See id.
182 DOE Guide, supra note 177, at 13.
183 Id.
184 See Memorandum from David P. Driscoll, Commissioner of Mass. Dep’t. of Educ., Request for Response: MCAS Alternate Assessment Implementation Program (June 8, 2000), available in Mass. Dep’t. of Educ., MCAS Alternate Assessment RFR (last modified June 12, 2000) <http://www.doe.mass.edu/mcas/2000docs/pdf/alt_rfr.pdf>; Massachusetts Dep’t. of Educ., Participation Guidelines for Students with Disabilities: A FOCUS on MCAS Alternate Assessment (1999) [hereinafter Participation Guidelines]. The Participation Guidelines, supra, at 3–4, also provide examples of situations in which a student may be eligible for an alternate assessment.
185 See id. at 2.
186 Id.
187 Id. (emphasis added); see also High Stakes, supra note 15, at 199; Educating One and All, supra note 9, at 193–94.
188 Participation Guidelines, supra note 184, at 2.
189 See id.
190 Id. at 2.
191 See High Stakes, supra note 15, at 4.
192 See Coleman, supra note 69, at 85.
193 See U.S. Dept. of Educ. Off. for Civ. Rts., supra note 6, at 47.
194 See id.
195 See id.
196 See id.
197 U.S. Dept. of Educ. Off. for Civ. Rts., supra note 6, at 47.
198 See supra notes 70–111.
199 See, e.g., Brookhart, 697 F.2d at 184–85; Debra P., 644 F.2d at 404; GI Forum v. Texas Educ. Auth., 87 F. Supp. 2d 667, 682 (W.D. Tex. 2000).
200 See Coleman, supra note 69, at 108.
201 See id. at 109.
202 See Mass. Gen. Laws ch. 69, § 1I (1999).
203 See id.; Mass. Regs. Code tit. 603, § 30.00 (2000); Clive McFarlane, MCAS Standard set at 220, Worcester Telegram & Gazette, Jan. 26, 2000, at A1.
204 See, e.g., Debra P., 644 F.2d at 402–03 (“[W]e wish to stress that [we are not] in a position to determine educational policy [for the state]. . . . As long as it does so in a manner consistent with the mandates of the United States Constitution, a state may determine the length, manner, and content of any education it provides.”).
205 See U.S. Dept. of Educ. Off. for Civ. Rts., supra note 6, at 17; see also Debra P., 644 F.2d at 406; High Stakes, supra note 15, at 64–65.
206 See Brookhart, 697 F.2d at 179; Debra P., 644 F.2d at 404; see also U.S. Dept. of Educ. Off. for Civ. Rts., supra note 6, at 17; High Stakes, supra note 15, at 63–64. Note that Massachusetts does not plan to condition the receipt of a diploma on a passing score on the MCAS until 2003. See Mass. Regs. Code tit. 603, § 30.03 (2000).
207 See supra note 162 and accompanying text.
208 See Mass. Regs. Code tit. 603, § 30.03. Exactly how states set the bar for passing and failing is an important ancillary issue in itself. As a general rule, states must have some acceptable basis for establishing a particular standard. See, e.g., Association of Mexican-American Educators v. California, 937 F. Supp. 1397, 1410 (N.D. Cal. 1996), rev’d in part, 183 F.3d. 1055 (9th Cir. 1999) (citing professional principles and expert studies as justification for establishing a passing score); Groves v. Alabama State Bd. of Educ., 776 F. Supp. 1518, 1530–31 (M.D. Ala. 1991) (holding that a passing score was not set on a professionally acceptable basis).
209 See, e.g., Karen Hayes, Schools, Pupils Cram for Second Shot at MCAS Tests, Boston Globe, Mar. 13, 1999, at South Weekly 1.
210 See generally DOE Guide, supra note 177.
211 See Debra P., 644 F.2d at 404; see also Brookhart, 697 F.2d at 186.
212 See supra notes 84–88 and 143–163 and accompanying text.
213 See Brookhart, 697 F.2d at 185; Debra P., 644 F.2d at 404.
214 See supra notes 39–49 and accompanying text.
215 20 U.S.C. § 6311 (1994 & Supp. II 1996); see also supra notes 27–37 and accompanying text.
216 Compare 20 U.S.C. § 6311 (b)(1)(B) (1994) (“set of assessments for all students”), with 20 U.S.C. § 1414(d) (Supp. III 1997) (“‘individualized education program’ or ‘IEP’ means a written statement for each child with a disability”).
217 Although this may seem like an obvious contention, courts have been called upon to decide whether a student’s capacity to learn can negate a state’s obligation to educate the student under IDEA. See, e.g., Timothy W. v. Rochester, NH School Dist., 875 F.2d 954 (1st Cir. 1989); Pennsylvania Assoc. for Retarded Children v. Pennsylvania, 343 F. Supp. 279, 296 (E.D. Pa. 1972).
218 20 U.S.C. § 1400(c)(5) (Supp. III 1997).
219 See id. § 1400(c)(5)(E)(i).
220 See, e.g., Brookhart, 697 F.2d at 186 (noting that “as much as 90% of the material on the [test] did not appear on the IEP’s”).
221 See Mass. Regs. Code tit. 603, § 28.103.0 (1999).
222 See Brookhart, 697 F.2d at 186; Debra P. v. Turlington, 644 F.2d 397, 404 (5th Cir. Unit B 1981).
223 See Participation Guidelines, supra note 184.
224 See id.
225 Debra P., 644 F.2d at 405.
226 APA Standards, supra note 139, at 107.
227 Educating One and All, supra note 9, at 141.
228 See id. at 148.
229 See id.
230 See supra notes 39–49.
231 See, e.g., Debra P., 644 F.2d at 405–06, 408 (finding that a test would be invalid if the state could not show that students were taught the material being tested).
232 See Larry P. v. Riles, 793 F.2d 969, 982 (9th Cir. 1984); 34 C.F.R. §§ 100.3(b)(2), 106.21(b)(2), 104.4(b)(4) (1999); 28 C.F.R. § 35.130(b)(3) (1999); U.S. Dept. of Educ. Off. for Civ. Rts., supra note 6, at 12, 14, 53.
233 See High Stakes, supra note 15, at 59; see also Coleman, supra note 69, at 99.
234 See Coleman, supra note 69, at 106.
235 See U.S. Dept. of Educ. Off. for Civ. Rts., supra note 6, at 54.
236 For example, in 1998 (the first MCAS administration) 43% of fourth graders with disabilities failed the English Language Arts test, as compared to a failure rate of only 8% among regular education students and 15% of all students who took the test. Massachusetts Dep’t. of Educ., Report of 1998 Statewide Results: The Massachusetts Comprehensive Assessment System (MCAS) 19 (1998) [hereinafter 1998 MCAS Results]. Similarly, in eighth grade, 60% of regular education students scored in the “Proficient” range on the English Language Arts test, while 85% of students with disabilities scored either in the “Needs Improvement” or “Failing” range. Id. at 20. In tenth grade, 94% of students with disabilities scored as Failing (or failed to take the test altogether) or Needs Improvement, and only 7% scored Proficient. Id. at 21. For the same test, 44% of regular education students were either Proficient or Advanced. Id. In math, while 88% of tenth graders with disabilities failed or did not take the test, only 46% of regular education students faired as poorly. Id.
In 1999, the results were no better. While 70% of students with disabilities failed or were found to need improvement on the fourth grade science test, only 38% of regular education students scored in the same range. Regular education students scored in the Proficient range at almost twice as high a rate as students with disabilities on that test. Massachusetts Dep’t. of Educ., Massachusetts Comprehensive Assessment System: Report of 1999 State Results (last modified Nov. 10, 1999) <http://www.doe.mass.edu/mcas/99mcas/iipart. html> [hereinafter 1999 MCAS Results]. In eight grade, 82% of students with disabilities failed the history and social science test, as compared with 42% of regular education students. Id. In tenth grade, 87% of students with disabilities failed the math test, while only 47% of regular education students fared as poorly. Id.
237 See Alternate Assessments for Students with Disabilities, supra note 11, at 1; see also, High Stakes, supra note 15, at 189; Testing Students with Disabilities, supra note 9, at 4–7 (1998).
238 J. Ruth Nelson et al., Desired Characteristics for State and School District Educational Accountability Reports 2 (1998).
239 See, e.g., 1998 MCAS Results, supra note 236.
240 See, e.g., Beth Daley, Lynn Ties Principal Pay to Testing: Raises to Depend on Pupils’ Scores, Boston Globe, Sept. 29, 1999, at B1. Notably, the trend toward tying salaries to test scores has already begun, long before an alternate assessment has been implemented and before the state imposes high-stakes consequences for students. See id.
Principals are not the only ones who are dependent on improved scores for salary increases. Pay for commissioners of education in Massachusetts and Illinois are now tied to improvements on state-wide assessments. Beth Daley, Official’s Pay Tied to MCAS Scores: Commissioner Agrees to Chairman’s Idea, Boston Globe, Dec. 22, 1999, at B1; see also Karen Bushweller, Eyes on the Prize, Am. Sch. Bd. J., Aug. 1999, at 18; Bess Keller, In Age of Accountability Principals Feel the Heat, 17 Educ. Wk., May 20, 1998, at 1.
241 Alternate Assessments for Students with Disabilities, supra note 11, at 4.
242 See High Stakes, supra note 15, at 199.
243 New State Ice Co. v. Leibmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).
244 See High Stakes, supra note 15, at 294.
245 See Coleman, supra note 69, at 112.
246 See id. at 113.