Abstract
Keywords
The demands for accountability in education has led to an increase in high-stakes testing practices in public schools. Accountability can be seen at the high school level in the use of exit examinations (hereafter exit exams) that students must pass to receive a diploma and graduate from high school. When passing a test is tied to an important outcome, like high school graduation, the tests are often referred to as high-stakes tests (Johnson & Thurlow, 2003). The Elementary and Secondary Education Act, formerly known as No Child Left Behind (NCLB; 2002), requires that high schools report graduation rates; however, NCLB does not require that high schools use high-stakes tests to determine whether a student can graduate.
By 2010, 28 states had high school exit exams (Center on Educational Policy, 2010). In fact, these exit exams were used in 24 of these states for meeting the high school graduation accountability mandates of NCLB. Usually these tests cover high school subjects such as English, science, mathematics, and social studies and require that students earn a passing grade on each. Nineteen states offer students who have difficulty passing these exit exams alternate options to allow them to graduate (e.g., scores from the Scholastic Achievement Tests or SAT, portfolios). Additionally, 11 states allowed waivers of the exit exams, and 22 states offered alternative options for students with disabilities (Zhang, 2009). One of the most challenging issues regarding the use of exit exams has been how best to include students with disabilities (Johnson & Thurlow, 2003).
The Individuals With Disabilities Education Act (IDEA; 1990) requires that students with disabilities participate in state and district-wide assessments, with appropriate accommodations and modifications when needed. Students with disabilities participate in these assessments in one of the following ways: (a) by taking the assessment with no modifications or accommodations, (b) by taking the assessment with modifications or accommodations, or (c) by taking an alternate assessment. Clearly, students with disabilities must participate in high stakes tests if required by the school district or state. The proper forum for a determining how a student will participate in state or district-wide assessments is in a meeting of his or her individualized education program (IEP) team.
This column examines litigation (i.e., due process hearings and court cases) in which high school exit exams and students with disabilities have been examined. To accomplish this, we (a) examine a few of the more important cases and hearings by the issues they addressed and (b) extrapolate implications from this litigation to help inform school district officials about their responsibilities when administering high-stakes tests to students with disabilities.
Before beginning this examination, two caveats are in order. First, there have been many court cases that have addressed the use of high-stakes tests. The legal issues raised in all these cases have been very similar. This column does not examine all of these cases; rather, it reviews only a few cases that are representative of the entire body of litigation regarding high-stakes tests and students with disabilities. Second, a couple of states have moved to require end-of-course high-stakes tests, which are tests given at the end of a high school course that assess student knowledge of the content taught in a particular course. The end-of-course tests are often used in lieu of high-stakes high school tests that cover multiple areas of content taught during high school (Center on Education Policy, 2010). According to the Center, the use of end-of-course tests appears to be a growing trend. Unfortunately there has been no federal litigation on the use of end-of-course tests and students with disabilities. When such litigation does occur, however, the legal issues will likely be the same as the legal issues raised regarding high-stakes high school tests and students with disabilities. Thus, the litigation reviewed and the principles discussed in this article pertain to both the use of high-stakes high school tests and end-of-course high-stakes tests.
Litigation and Exit Exams
A number of people have filed lawsuits that have challenged the use of high-stakes tests when used as a requirement for graduation. For example, in Debra P. v. Turlington (1981), African American students challenged the requirement in the state of Florida that students had to pass a high-stakes exam to graduate from high school. The students claimed that the exit exam was racially biased and they were not given sufficient notice or time to prepare for the exam. Although the court allowed the use of exit exams, it did rule that before education officials in Florida could use the exams to determine whether a student could graduate, they had to prove the curricular validity of the test (i.e., whether the test covered the subjects that were taught in Florida’s high schools). Thus, the tests were legal as long as they tested actual content that was being taught and that students had sufficient notice regarding the high-stakes nature of the exit exams.
In a Texas case, GI Forum, Image De Tejas v. Texas Education Agency (2000), plaintiffs sought to bar the Texas Education Agency from requiring that students pass the Texas Assessment of Academic Skills (TAAS) as a graduation requirement. Though the court commented on the poor performance of minority students on the TAAS, it found in favor of the state board of education, ruling that curriculum decisions, of which the TAAS was one, were within the state educational agency’s authority. Additionally, the TAAS was highly correlated with the content that was being taught in the Texas public school system.
Although there has been more litigation surrounding the issue of using exit exams as a requirement for high school graduation, these two cases are excellent examples of the rulings in the majority of court cases. This litigation has been clear that state educational agencies may require that students pass exit exams to graduate from high school. Additional legal issues are involved, however, when exit exams are required of students with disabilities to graduate from high school.
Litigation, Exit Exams, and Students With Disabilities
A number of court cases and hearings have addressed the use of exit exams and students with disabilities. Plaintiffs in these cases are typically parents of students with disabilities who believe that the practice of requiring their children to pass exit exams to graduate from high school is contrary to the provisions set forth in the IDEA. Moreover, plaintiffs have also raised questions regarding the use of accommodations and modifications in these exit exams, particularly the accommodations their children had been receiving in their schools and that were part of the child’s IEP. The following section consists of a series of questions that have been answered in the litigation.
Can requiring students with disabilities to pass exit exams to graduate from high school discriminate against students with disabilities, thus violating Section 504 of the Rehabilitation Act of 1973?
If a school district requires that students with disabilities pass an exit exam to graduate from high school, this requirement is not discrimination on the basis of a disability as long as the following four provisions are met. First, all of a district’s students, those with and without disabilities, must be required to pass the exit exam to graduate. Second, all students, those with and without disabilities, must be given adequate notice that they will be required to pass an exit exam to graduate from high school. According to Gorn and Norlin (2008), best practice would be to notify students with disabilities and their parents about the graduation requirements and accommodations that may that may be provided to the students. This notification should be given to students and their parents when they initially enter high school. Third, the test must be fair; that is, the school district must test what is taught in the district’s curricula. Fourth, the school district must permit students with disabilities to take the exit exam with reasonable accommodations if needed. If these conditions are met, states and school districts may require that students with disabilities pass an exit exam to graduate from high school as long as such a requirement applies to all students.
Can requiring students with disabilities to pass exit exams to graduate from high school be a violation of the free, appropriate public education (FAPE) requirement of the Individuals With Disabilities Education Act (IDEA)?
The U.S. Court of Appeals for the Seventh Circuit heard one of the earliest cases regarding the school district–wide testing of students with disabilities in Brookhart v. Illinois State Board of Education (1983). The parents of 14 elementary and secondary students with disabilities challenged the Peoria School District’s requirement that their children pass a minimum competency exam (MCT) to receive a high school diploma. The parents in this case claimed that the MCT violated the Education for All Handicapped Children Act (now IDEA) because it denied students FAPE by not granting diplomas to students with disabilities who failed to pass the test.
The plaintiffs claimed that FAPE was denied because high school graduation was based on a single procedure (i.e., passage of the MCT) and that the students were given inadequate notice of the MCT, thus depriving them of a protected liberty without due process of law. The court noted that the denial of a diploma to students with disabilities who were unable to achieve the specified level to pass the MCT after having been provided special education and related services did not deny student’s FAPE, and that the Peoria District, in fact, had three criteria for receiving a diploma: (a) earning 17 credits, (b) completing state requirements, and (c) passing the MCT.
With respect to the due process claim, the court found that the district failed to satisfy its constitutional obligations to notify students of the change in graduation requirements, and therefore denied students adequate time to prepare for the new graduation requirement. In overturning the District Court’s decision, the court of appeals directed the school district to issue high school diplomas to the students who were unable to pass the MCT, but who had achieved all other graduation requirements. As long as the previously mentioned requirements are met, requiring that students in special education pass exit exams to graduate is not a violation of FAPE. These requirements are as follows: (a) All of a district’s students, those with and without disabilities, must be required to pass the exit exam to graduate; (b) all of a district’s students, those with and without disabilities, must be given adequate notice that they will be required to pass an exit exam to graduate from high school; (c) the school district must test what is taught in the district’s curricula; and (d) the school district must permit students with disabilities to take the exit exam with reasonable accommodations if needed. States may determine which accommodations are reasonable and usually prohibit accommodations that invalidate or in some way change the nature of a test.
Are accommodations required on exit exams when needed by students with disabilities?
School districts must provide students with disabilities reasonable accommodations or modifications if needed and if such accommodations and modifications are included in students’ IEPs. One challenge to the use of exit exams with students with disabilities was heard in Indiana in the case of Rene v. Reed (2001). In this case, the Indiana Civil Liberties Union requested an injunction stopping the state of Indiana from administering the Graduation Qualifying Exam (GQE). The plaintiffs wanted the court to prohibit the state from using the GQE to test students with disabilities until the test was a fairer test of what students with disabilities were taught. The Indiana Court of Appeals asserted that the examination was within the public interest to ensure the validity of the high school diploma, irrespective of the fact that some students who failed had met all other graduation requirements. Additionally, the court found that the trial court was correct in finding that the use of the GQE did not violate the IDEA even though the state educational agency refused to permit certain accommodations during the exit exam that were provided to students with disabilities on other tests.
Two additional cases that involved the use of accommodations occurred in Alaska and California in the cases Alexander Noon v. Alaska Board of Education (2004) and Chapman v. California Department of Education (2003). In Noon, it was projected that 500 students in the class of 2004 would have been denied a diploma because they did not have an adequate opportunity to pass the High School Graduation Qualifying Examination (HSGQE). A settlement was reached in 2004 wherein the Alaska Board of Education expanded the accommodations available to students. The board also added an alternative portfolio assessment for students with severe disabilities and an expedited due process system designed for HSGQE disputes. In the California case, the plaintiffs were not successful in convincing the court to stop the state from requiring that students pass an exit exam; however, they did obtain an injunction from the court that temporarily halted administration of the exit exam to students with learning disabilities. The Chapman court ordered that the state allow students with disabilities to take the exit exam with any accommodations or modifications identified in their IEP or Section 504 plan as long as the accommodation was specifically used during the administration of an exit exam or for other standardized or general classroom testing. The court also required that the state educational agency develop an alternate assessment for students who were unable to take the exit exam.
A hearing officer in Mobile County Board of Education (1997) held that the policies and procedures that the Alabama State Board of Education had adopted for either granting or denying accommodations for students with disabilities were reasonable because they were designed to prevent the use of accommodations that would invalidate the exit exam. The hearing officer further ruled that any accommodations or modifications should have been included in students’ IEPs and used in their instructional program.
These rulings provide useful information to school districts that require students with disabilities to pass exit exams to graduate. Accommodations and modifications are allowed as long as they (a) do not invalidate the exit exam, (b) are included in students’ IEPs, and (c) are used as part of students’ instructional programs.
Discussion
It is obvious that the use of exit exams for high school graduation is likely to increase, despite high failure rates among students with disabilities. The courts have upheld the right of state educational agencies to require that students pass such exams to ensure the mastery of specific content covered and to allow them to graduate from high school. Nevertheless, we can draw some important principles from this litigation. First, state and local education officials must take steps to ensure that students with disabilities have been taught the curriculum that is being tested on the exit exam. School districts should implement evidence-based instructional practices designed to ensure fluency in the curriculum being covered. Second, parents and students must be informed when the high-stakes tests will be given, the importance of these tests in the students’ high school career, and the curricular content that the tests will cover. Third, students with disabilities may be provided with reasonable accommodations as long as they do not invalidate the test, are included in students’ IEPs, and are provided to students as part of their instructional program. Fourth, students with disabilities must have the option of exercising an expedited due process appeal. The use of high-stakes exit exams as graduation requirements are used in many states. Moreover, with the pending reauthorization of the Elementary and Secondary Education Act, it is likely than these tests will become even more common. With respect to students with disabilities, it is imperative that school districts and state educational agencies adhere to (a) the principles developed through the litigation and (b) state law and regulations on administering high stakes tests to students with disabilities.
Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.