Abstract
Being retained in a grade can have long-term consequences for students, and certain students are disproportionately likely to be retained in their grade. Robert Kim considers grade retention as a potential civil rights issue. Thus far, courts have been reluctant to overrule schools’ decisions in this area. However, cases that illuminate large disparities among students or that tie grade retention clearly to other acknowledged civil rights violations might invite greater judicial scrutiny.
Each year, hundreds of thousands of K-12 students each year are not promoted to the next grade. Some students are retained because of poor performance on standardized tests or other signs they are not academically ready to progress to the next grade level; others are retained because they exhibit disruptive behavior or emotional immaturity (Intercultural Development Research Association, 2018; National Center for Education Statistics, 2019).
In some locations, grade retention is legally prescribed: For example, 16 states and the District of Columbia require grade retention for 3rd graders who are not proficient readers, with some exceptions (Education Commission of the States, 2023).
Critics state that grade retention policies and practices are ineffective and even unfair. Studies show that grade retention fails to improve students’ academic and life outcomes and may, in fact, do the opposite: Retained students have a greater probability of dropping out of high school, not pursuing postsecondary education, and receiving lower wages and job performance ratings (Jimerson, 1999). A few studies, however, suggest that grade retention may benefit students, if they receive extra support and access to effective teachers (Schwartz, 2022).
Moreover, certain students are disproportionately subjected to grade retention. In recent years, for example, Black and Latino students make up about 42% of all public school students, but 61% of students who repeated a grade (Office for Civil Rights, n.d.). Boys, English learners, and students with disabilities are also disproportionately retained.
And so, as with the disproportionate suspension or expulsion of students of color or students with disabilities, it’s fair to ask: Is grade retention a civil rights issue?
Courts’ reluctance to overturn grade retention decisions
Historically, there are few court cases related to grade retention, probably because plaintiffs bringing such challenges have not fared well.
In Sandlin v. Johnson (4th Cir. 1981), the court considered a legal challenge to a Virginia elementary school’s decision to retain 22 of 23 2nd graders because, according to the school, the students had “failed to progress to [a sufficient] level of [reading] mastery, and [promoting them] before they had mastered the requisite reading skills would be counter-productive and would increase plaintiffs’ reading deficiencies.” The elementary students sought monetary damages for the “stigma of failure” attached to them as well as the delay in the completion of their education, and — clearly thinking ahead here — their ability to obtain “ lucrative employment” in the future.
The court rejected the students’ legal challenge, ruling that denying student promotion based on failure to meet cut scores on a standardized reading test was the type of decision that falls within the exclusive purview of educators and therefore “inappropriate for review in a judicial context.”
Similarly, in Erik V. v. Causby (E.D.N.C. 1997), the court rebuffed students’ legal challenge of a district policy requiring the retention of students in grades 3-8 who did not attain a designated score on a standardized test. Like the Sandlin plaintiffs, the students argued that grade retention would harm them by delaying entry into college, employment, and adult life and cause them to feel negative not only about school but also about their own self-worth.
The court disagreed, ruling that the district’s decision to base student promotion on achievement standards was “rational.” Like the Sandlin court, the court in Erik V. unequivocally stated that courts should “tread lightly upon the domain of state and local governments.”
Future legal avenues to challenge inappropriate grade retention
The judges in Sandlin and Erik V. didn’t grapple with stark civil rights data or other evidence of disproportionate grade retention of students based on their race, national origin, sex, or disability status. No such evidence was presented at all in Sandlin. In Erik V., the court held that plaintiffs had failed to present even an initial iota of evidence that students of color suffered more harshly than others under the grade retention policy. A more strongly supported civil rights case focused on disparate treatment of or impact on particular subsets of students might be more successful.
Advocates might also draw a clearer line between grade retention and other, more commonly recognized civil rights no-no’s. Grade retention is one of several “interlocking” forms of discrimination (Pendharker, 2022). Students who experience exclusionary discipline (such as suspension) are more likely to be retained in their grade (Marshbanks et al., 2015). And students who are forced to repeat a class are more likely to end up in special education classes or lowest-ability tracks, impeding their equal access to rigorous courses and academic pathways (Office for Civil Rights, 2014; Wheelock, 1998/1999). Cases that connect grade retention to unequal educational oppportunities or unjust discipline practices might clarify for courts the extent of harm and civil rights implications of holding students back.
Finally, grade retention determinations that rely on standardized tests may invite legal claims challenging the reliability of those tests to determine mastery of grade-level content. In Debra P. v. Turlington (5th Cir., 1981), a group of Florida students (including students of color) challenged the state’s use of a literacy exam as a graduation requirement. The court held that requiring students to pass an exam that covers material outside of the curriculum taught to students is “fundamentally unfair” and that dividing students into passers and failers based on that test would violate the Equal Protection and Due Process clauses of the United States Constitution. However, in GI Forum v. Texas Education Agency (W.D. Tex. 2000), the Texas court held that an examination used as a requirement for high school graduation correlated to material actually taught in the classroom and thus did not discriminate against students of color or violate their due process rights.
Holding a student back in elementary school is, perhaps, a less high-stakes decision than preventing that student from receiving a high school diploma. However, these cases show that courts are willing to examine the use of tests on civil rights grounds. The judicial scrutiny of the use of tests as a graduation requirement may yet support equal protection or due process claims regarding their use in the grade retention context.
Reconciling legal parameters with students’ needs
Courts analyzing grade retention decisions have a point: Compared to educators, judges aren’t in the best position to determine whether a student is making progress academically. But those who oppose grade retention also are justified in challenging subjective or unfair policies or practices that have real consequences for children and their families. Occasional judicial or administrative enforcement scrutiny may encourage policy makers, districts, and educators to tighten their grade retention policies and determinations, staying true to what’s in the best interest of each student.