PASSAGE OF A MINIMUM COMPETENCY TEST AS
A REQUISITE FOR RECEIVING A HIGH SCHOOL DIPLOMA:
THE FIFTH CIRCUIT STANDARD FOR LEGALITY
Frank
April
Texas
For:
Prof.
00522-
R. Waite
15, 1983
Tech School of Law
Independent Research 721
Thomas E. Baker
PASSAGE OF A MINIMUM COMPETENCY TEST AS
A REQUISITE FOR RECEIVING A HIGH SCHOOL DIPLOMA:
THE FIFTH CIRCUIT STANDARD FOR LEGALITY
Introduction
In response to public concern that many high school
graduates cannot read, write, or compute at minimum levels of
adult proficiency, more than forty states have adopted some
form of standardized testing as an approach to the problem.1
(throughout this paper such tests will be referred to as minimum
competency tests, MCTs).
Despite apparently overwhelming
political support for such testing as an expedient and effective
method of improving public education, there has been widespread
criticism of the exams from pedagogical and legal perspectives.
The criticism are based primarily on the different purposes
for which the exams are used.
When the MCTs are given to
students to monitor the quality of education which the schools
provide and for allocating educational resources on that
2
basis, there seems to be very little objection.
But, controversy
arises when the tests are given to determine whether a high
school student
has
obtained a high enough level of functional
literacy (competency) to be granted a diploma.
This method
of using the MCT shifts the burden of poor schooling onto the
students.
It Is this diploma sanction that draws the legality
of MCT into question.
"The legality of a testing program will
usually depend more upon the use of the test results than upon
the test itself.
Using the test results as the primary basis
for any decision that will cause serious harm to a student
00523
-1-
raises initial legal questions.
The trigger for legal analysis
3
is this injury."
This paper will explore the legality of
the diploma sanction under the United States constitution and
federal statutes as it is utilized in the Florida accountability
program Lj. which has been interpreted by the Fifth Circuit in
5
Debra P. v. Turlington.
In examining the MCT controversy it is necessary to make a
distinction between the legal and constitutional attacks on
the diploma sanction versus the soundness of the diploma
sanction as educational policy.
This distinction is critical
in understanding that even if the educators reach a consensus
that the diploma sanction is unwise education policy, there may
be no viable challenge to the legality of the sanction under
federal law.
The pedagogical criticisms emphasize the adverse
effects that allocating educational resources toward minimum
g
competency rather than overall program breadth and quality.
The argument is that education will be geared toward minimum
standards at the expense
of college prepatory and educationally
7
esoteric programs.
Some educators also fear that students
may drop out of school rather than risk obtaining a certification as holders of less than a diploma.
Although these
criticisms may have merit, the policy decisions are within
the legitimate authority of state legislatures to make and
the courts will not interfere unless the harm to students
is
a clear afront to constitutional or statutory rights. g
This writer knows of only two cases litigating the legality
9
of MCTs with a diploma sanction.
Debra P. v. Turlington
-2
is the only appellate court decision.
The legal claims
asserted were violations of students rights under the Equal
Protection and Due Process clauses of the Fourteenth
Amendment 10 and violations of Federal Statutory Rights Under
Title VI of the Civil Rights Act of 1964 11 and the Equal
12
Educational Opportunities Act (EEOA).
Before detailing
the claims and holdings in Debra P. it will be useful to
consider conceptually how a MCT could be attacked under the
Fourteenth Amendment. Under the equal protection and the
due process clause 13 if no suspect class or fundemental
right is involved, the state may utilize any means which is
Irrationally related to legitimate purpose.
In this situation
the legitimate state purpose is to restore confidence in
public education and make a high school diploma more meaningful.
The potential constitutional violations are in finding the
means are irrational or arbitrary.
This is where the
scientific validity of the exams is called into question.
If the exam lacks validity it is not rationally related to
a legitimate state purpose and is thus unconstitutional.
The allocation of the burden of proof in fourteenth
amendment litigation is often critical.
In the standard
application of the rationality test the plaintiff will have
to carry the burden of showing the MCT to be invalid against
a presumption of constitutionality.
However, in some instances
it is possible to shift the burden back onto the state.
This
is because in a post desegregation setting the state carries
the burden of showing the constitutionality of its actions
00525-
which have an adverse disproportionate impact on minority
students. 15
The discriminatory impact by itself does not
16
shift the burden;
but, if the state has a history of de
jure segregation, there will be a presumption against the
constitutionality of state action taken which results in
a racially discriminatory impact. 17 The state carries the
burden of justifying their action at a higher level of
18
judicial scrutiny than rationality.
The question whether Title VI and the EEOA claims parallel
the fourteenth amendment challanges to MCTs has not been
specifically delineated in any case law.
It is the purpose
of this paper to examine this issue in depth.
The analytical
method used will be to examine the Fifth Circuit court's
holding in Debra P. and to project how the case may be decided
on remand applying the Circuit's constitutional and statutory
standards of reviewing the use of MCTs for granting high school
diplomas.
The Florida MCT - Debra P. v. Turlington
In 19 76, the Florida Legislature enacted a comprehensive
piece of legislation known as the "Educational Accountability
. . .intent was to provide
Act of 19 76."19 The state legislative
a system of accountability in order to guarantee that each
student be afforded similar opportunities for educational
advancement without regard to geographic differences varying
local factors, and to provide an information basis on which
education decision makers could rely in allocating resources
to meet the needs of public education.
00526-
The system was also
designed to guarantee to each student that instructional
programs meet minimum performance standards set by the State
Board of Education.
Information was to be provided to the
public on the performance of the system toward meeting
established goals of providing effective, meaningful, and
relevant educational experiences designed to give students
20
skills necessary to function and survise in today's society.
In 19 78, the Legislature amended the. Act to require students
to pass a functional 21
literacy exam in order to receive a
high school diploma.
The test was entitled the State
Student Assessment Test (SSAT II) and was first administered
in the fall of 19 77.
Substantial numbers of students failed
the test, with a higher percentage of black students failing
than whites. 22
A class action suit
23
was brought in federal district
court challenging the constitutional and statutory validity
2
of the test.
The Court held for the plaintiffs finding
that (1) in light of past purposeful discrimination immediate
use of the test perpetuated the effects of a segregated school
system in violation of the equal protection clause, Title VI
and the EEOA; (2) the test had adequate content and construct
validity and was rationally related to a legitimate state
interest; (3) the test was not racially of ethnically biased;
(4) the failure to apply the test to private schools was not
unconstitutional; (5) the inadequacy of notice provided prior
to the use of the diploma sanction was a violation of the due
process clause; (6) using the test to classify students for
00527
- 5-
remediation was constitutionally permissable, and (7) the
state would be enjoined from requiring passage of the test
a requirement for graduation for a period of four years,
which is twelve years after the abolishment of the states's
dual school system.
Both parties appealed the district court decision. 2 5
Florida contended that the district court erred in finding
that the test violates due process because there was adequate
notice and no property right was involved.
They also contended
that there was no equal protection violation and that Title
VI and the EEOA should have been found inapplicable to the case.
Appellees on cross-appeal contended
that the district court
erred in limiting the period of the injunction to four years
and in upholding the validity of the exam.
The Fifth Circuit
held the finding of the trial court that the exam had adequate
content validity to be clearly erroneous, on the record
presented.
The judgment of the lower court was vacated and
the case remanded for further findings of fact on the question
whether the exam covered only that which was taught in the
school system.
The Fifth Circuit affirmed the lower court's
finding that students had a property interest in a diploma
which invokes due process clause protection.
While the court
affirmed that MCTs with a diploma sanction do not per se
fail the rationality test, it also held that if the exam
lacked content validity, it would violate the due process
and equal protection clauses as well as Title VI and the
EEOA.
Left open for re-examination on remand was the subject
CJ)528
of vestiges of a past dual school system.
If the state can
demonstrate that the exam is a fair test of that which is
taught, they still must meet an affirmative duty to eliminate
and not perpetuate the effects of past purposeful discrimination.
In other words, even if the exam passes a rationality test
it may be constitutionally impermissable if its disparate
impact on minority students is the result of vestiges of a
dual school system.
Additionally, the court held there was
no constitutional violation in the exams being required only
26
in public schools.
Finally, the circuit court affirmed
the trial court holding that MCTs for remediation purposes
were constitutionally valid even if the tests had a racially
discriminatory impact, If the result was to provide
minority
27
students with better educational opportunities.
The Fifth Circuit Standard
Because of the discriminatory impact the exam had on
minority students coupled
with Florida's history of past
28
de jure segregation,
the Fifth Circuit holding Is based
as much on civil rights law as it is on the substantive legality
of the MCT diploma sanction.
The case illustrates that in a
post de jure segregation setting the state will carry a heavy
two-pronged burden in establishing the legality of its diploma
sanction exam under federal law.
First, the state must prove
that the exam is a fair test of that which was taught In the
public school system.
Secondly, the state must prove the
racially disproportionate MCT results are not caused by
vestiges of the past dual school
system or that use of
00929-
the exam is necessary to provide minority students better
educational opportunties.
In analizing Debra P. as it may
be decided on remand under this standard, this paper will
proceed as if it is possible for the state to meet its burden
29
of exam validation.
The analysis here will focus on the
question of vestiges of a past dual school systems and remedies mandated by the constitution and statutes.
The Debra P. decision seems to indicate that in a state
with no history of de jure segregation or only de facto
segregation, the MCT with a diploma sanction could be used
without violating federal law, if the testing instrument is
valid.
The MCT would be rationally related to a legitimate
state purpose.
This would be true even if the MCT had a
discriminatory impact on minorities. In such a setting,
state actions carry a presumption of constitutionality. 3 0
The plaintiffs would have to prove intent to discriminate
to make out an equal protection violation. 31
Despite judicial
notice of past de jure segregation and social problems during
32
the transition
phase to a unitary school system, the district
court in Debra P• placed the burden of showing present discriminatory intent on the plaintiffs.
discriminate was found.
No present intent to
An equal protection and statutory
violation was found only insofar as the exam perpetuated
the effects of past purposeful discrimination while there
were still students in the present system who had been subjected
to the old dual school system.
After the last students who
had attended the dual system had completed their education,
00930-
the court recognized no other vestige of the old dual school
33
.
.
system.
The Fifth Circuit decision shows the narrowness
of this holding as well as the allocation of the evidentiary
burden to be a faulty application of desegregation case law.
In light of the trial court's findings of past de jure
segregation, the burden of showing the constitutionality
of the MCT was on the state, and the plaintiffs are not
required to show discriminatory intent in order to establish
a constitional or statutory violation.
The allocation of evidentiary burden might be criticized
on the basis of some recent case law tsrhich indicates that the
courts are becoming reluctant to carry the presumption of
unconstitutional action indefinitely against formerly de jure
segregated systems.
The Fifth Circuit upheld a district judge's
decision that said the court is without power, in the absence
of a showing of present intent to discriminate, to find a
constitutional violation after a school district has been in
"substantial compliance" with its desegregation plan and
34
has operated a unitary school district.
In another post
de jure segregation setting, the Fifth Circuit refused to place
the burden on the school district to show that they had not
intentionally discriminated when there was a finding that
school segregation was the
3 5 "natural consequence" of area
population -distribution.
and inconsistent
The theory is that it is unfair
with the Supreme Court's holding that
intent to discriminate
q c is a necessary element to a equal
protection violation
to continue a presumption against
school districts.
37
This theory has been directly refuted,
however, in school desegregation cases that followed the
Courts decisions requiring the discriminatory intent element.
In Columbus Board of Education v. Penick,
39
Education v. Brinkman,
38
and Dayton Bd. of
the Supreme Court reiterated the continued
vitality of the Keyes and Swann presumption.
The Court
explicitly rejected arguments that direct evidence of discriminatory intent was required to prove an equal protection
violation in systems where historic de jure segregation was
found.
Deb^a- P. it is clear that the Circuit court has not
shifted the burden back to the plaintiffs to show intent to
discriminate as necessary for an equal protection violation.
On remand it will be Florida's burden to demonstrate that the
disproportionate impact the MCT diploma sanction has on minority
students is not a vestige of the past dual system, or that
4-0
such a test procedure is necessary to remedy such vestiges.
Desegregation Under the Equal Protection Clause
Following the Supreme
4-1 Court's decision in Brown v. Board
of Education (Brown I),
holding that separate educational
facilities were inherently unequal and a violation of the equal
protection clause, a long line of cases has established the
constitutional duty to dismantle dual school systems and
eliminate their vestiges.
In Brown v. Board of Education
42
(Brown II),
the Supreme Court delegated to the federal
district courts the responsibility to see that the transition
to unitary school systems was carried out "with all deliberate
, „ M- 3
speed."
0053?
The standard of all deliberate speed was abandoned when
it became clear that many school districts "persisted in the
44
use of dilatory tactics to avoid complete desegregation."
In Griffin v. Prince Edward County Board of Education, 45 the
46
court stated "the time for mere deliberate speed has run out."
The Court began to shape a doctrine that would allow the lower
federal courts to do more than review whether or not a school
district was segregated.
47
In Green v. County School Board,
the court reviewed
the nature of the school district's effort to desegregate
and held that its "freedom-of-choice" plan could not be accepted
as a sufficient step to effectuate the transition to a unitary
school system.
The burden on a school board today is to come
forward with a plan that promises realistically
to work, and
48
promises realistically to work now."
The Court also stated
that school authorities are "clearly charged with the affirmative
duty to take whatever steps might be necessary to convert to
a unitary system in which racial discrimination would be
eliminated root and branch." 49
50
In Swann v. Charlotte-Mecklenbrug Board of Education,
the Court began to elaborate on the affirmative duty and how
it is discharged.
"The objective today remains to eliminate
from the public schools all vestiges of state-imposed segre•
gation." 51 Broad guidelines were set for the district
courts
to review the efforts of school authorities.
00533-
"If school authorities fail in their affirmative
obligations under these holdings, judicial authority
may be Invoked. Once a right and violation have
been shown, the scope of a district court's equitable
powers to remedy past wrongs is broad, for breadth g 2
and flexibility are inherent in equitable remedies."
The Supreme Court recognizes that reviewing desegregation
efforts is largely a qualitative matter.
The court must look
at the "root and branch," "vestiges" of a district's segregation
in formulating a remedy.
(A examination Into the concept of
vestiges is made in a later section of this paper.)
Limitation of district court's power to remedy discrimination
is found in the distinction between de jure and de facto
segregation In Keyes v. School District No. 1
53
the Supreme
Court made it clear that only de jure segregation, defined as,
"a current condition of segregation resulting from intentional
state action,"
5 M-
violates equal protection. This doctrine
55
was again used in Milliken v. Bradley (I),
where the Court
struck down the district judge's order that area suburban
schools be ordered to participate with the Detroit school
district in a desegregation plan.
The Court held that not-
withstanding evidence that Detroit schools were unlawfully
segregated, inter-district relief could not be imposed on
surrounding school districts.
The court stated that the
controlling equity principle is that "The scope of the remedy
is determined by the nature and extent of the constitutional
violation."^ ^
In sum, it is clear that under the fourteenth amendment
courts have broad equity powers to remedy discriminatory and
segregative actions and omissions by school authorities.
00534-
However, this power cannot be invoked unless invidious intent
to discriminate is found to presently exist or to have been
practiced in the past.
The remedy ordered by the court must
be limited to the extent of the constitutional violation.
The EEOA
The Debra P. plaintiffs also challenge the MCT with a
diploma sanction under the Equal Educational Opportunities
Act of 1974, 57 Section 1703 (b) which states:
"No state shall deny equal educational opportunity
to an individual on account of his or her race, color,
sex, or national origin, by - . . . (b) the failure
of an educational agency which has formerly practiced
such deliberate segregation to take affirmitive
steps, consistent with subpart 4 of this title to
remove the vestiges of a dual school system;"
Although no provisions of the Act expressly incorporates
the fourteenth amendment, the language of §1703 is obviously
very much like that found in the desegregation cases under the
fourteenth amendment.
But without an express incorporation,
legislative intent and court interpretations must be examined
to understand meaning of the Act.
Two important issues arise.
First, is the question whether the duty to "take affirmitive
steps to remove vestiges of a dual school system" is substantively the same as the duty required by the fourteenth
amendment.
Second, is the question whether remedies under the
58
Act are the same as those under the constitution.
The relation
of the EEOA to the fourteenth amendment is analagous to whether
other Civil Rights statutes (Titles VI and VII) are co-extensive
with the constitution, so an examination of cases addressing
that issue will be explored also.
00535
-13-
The declared congressional policy behid the EEOA is that'll) all children enrolled in public school are
entitled to equal educational opportunity without
regard to race, color, sex, or national origin; and
(2) the neighborhood is the appriate basis for
determining public school assignments. In order to
carry out this policy, it is the purpose of this part
to specify appriate remedies for the orderly removal
of the vestiges of the dual school system.
Because the EEOA was offered as an amendment from the
floor to the Education Amendments of 19 74, specific legislative history is strikingly sparse.
There are no hearing
or committee reports on the Act's provisions.
However, it
is clear that the Act is essentially the same as the proposed
60
EEOA of 19 72,
which passed in the House but not the Senate.
There were extensive hearings held on the 19 7 2 Act and some
insight into the 1974 Act can be gleened from examination of
those House Reports.
The legislators seemed primarily concerned
with the wisdom and effectiveness of various student transportation remedies that were being imposed by courts in
desegregation cases.
Congressman Esch's summarized legislative
intent of the 19 7 2 Act as, "The purpose clearly, when the act
was passed by this House overwhelmingly in August of 19 72,
was to suggest that, while we recognize that every child
should have an opportunity to be fully educated, the House
went on record as emphasizing that the education should
be
61
done insofar as possible in a neighborhood school."
That the focus of the legislators' attention was primarily
on student transportation and not the creation of new substantive
rights, is also clear from the face of the congressional
findings stated in the 1974 Act:
"(a) The Congress finds that(1) the maintenance of dual school systems in which
student are assigned to school solely on the basis of
race, color, sex, or national origin denies to those
students the equal protection of the laws guaranteed
by the fourteenth amendment;
(2) for the purpose of abolishing dual school
systems and eliminating the vestiges thereof, many
local educational agencies have been required to reorganize their school systems, to reassign students,
and to engage in the extensive transportation of students;
(3) the implementation of desegregation plans
that require extensive student transportation has, In
many cases, required local educational agencies to
expend large amount of funds, thereby depleting their
financial resources available for the maintanance or
improvement of the quality of educational facilities
and instruction provided;
(4) transportation of students which creates
serious risks to their health and safety, disrupts
the educational process carried out with respect to
such students, and impinges significantly on their
educational opportunity, is excessive;
(5) the risks and harms created by excessive
transportation are particularly great for children
enrolled in the first six grades; and
(6) the guidelines provided by the courts for
fashioning remedies to dismantle dual school systems
have been, as the Supreme Court of the United States
has said, "incomplete and imperfect," and have not
established, a clear, rational, and uniform standard
for determining the extent to which a local educational agency is required to reassign and transport
its students in order to eliminate the vestiges of
a dual school system.
(b) For the foregoing reasons, it is necessary and
proper that the Congress, pursuant to the powers
granted to it by the Constitution of the United
States, specify appropriate remedies for the
elimination of the vestiges of dual school systems,
except that the provisions of this chapter are not
intended to modify or diminish the authority of
the courts of the United States to enforce fully
the fifth and fourteenth amendments to the Constitution of the United States." 62
-15-
In interpreting the Act less than one year after the
AQ
EEOA had been passed, the Sixth. Circuit in Brinkman v. Gilligan
held that the Act did not limit either the nature or the scope
of the remedy in a school desegregation case.
The Court cited
11702(b) and emphasized the language regarding the Act not
being intended to modify or diminish the authority of courts
in desegregation cases.
Referring to a prior decision ordering
desegregation under the constitution, the court stated, "The
Equal Educational Opportunities Act of 19 74 by its terms does
not prevent the District Court from
64 carrying into effect the
previous mandate of this court."
This, however, far from
settled the broader question of the Acts co-extensiveness
with the constitution.
When the Sixth Circuit was faced with the broader
question
65
m
United States v. School District of Ferndale,
the Court
held that provisions of the Act must be interpreted independently
as they come into controversy on a case by case basis.
"There is unquestionably considerable overlap
between these protections, and those provided under
the fourteenth amendment. The statute does not
expressly incorporate the amendment, however, and
we are not prepared to say that the two provisions
are co-extensive...We think it best to defer interpretation of any particular EEOA provision until
the meaning of that provision is at issue in case
before us."6®
This judicially conservative approach seems to have been
correct In light of the dicotomy in answers given to the coextensive question in different cases. 6 7
68
In United States v. Hinds County, School Board,
the
Fifth Circuit recognized that the EEOA created new substantive
rights in the area of sex-segregation.
The Court found illegal
the recommendation by a federal district judge that a county
school district be permitted to maintain a sex-segregated
student assignment plan.
Citing the congressional declaration
of policy in §1702(a) (1), the court stated,
"This declaration expressly goes beyond the rights
guaranteed to school children under the Fourteenth
Amendment prior to the EEOA's adoption and incorporates
a judgment that a sex-segregated school district is
a dual rather than a unitary school system and results
in a similiar if not equivalant injury to school
children as would occur if a racially segregated school
system were imposed, (citations omitted)."69
The Fifth Circuit has also found the Act to go beyond
the fourteenth amendment in the area of language impediments
to education.
70
.
71
In Castaneda v. Pickard
the court held
72
that §1703(f)
required educational agencies to undertake
appriate efforts to remedy the language deficiencies of it
students, regardless whether the deficiencies
7 3 were caused by
past segregation or intent to discriminate.
The Castaneda Court, however, did hold that an intent to
discriminate was a necessary element to establish claims under
74
§1703(d),
which relates to discriminatory employment practices
of the school district.
Moreover, the court concluded "that
discriminatory conduct proscribed by §17Q3(d) is coextensive with
that prohibited by the fourteenth amendment and Title VI
and does not encompass conduct which might violate Title VII
because, although not motivated by racial factors,
7 5 it has a
disparate Impact of persons of different races."
The Court's
holding that one provision of the EEOA goes beyond the fourteenth
amendment while another provision is co-extensive with the
amendment, is a clear indication that the Fifxh Circuit is
00530
engaging in the same type of case- by- case, provision - by provision interpretation of the EEOA utilized by Sixth Circuit.
Turning specifically to the issue of MCTs with a diploma
sanction, the question is whether §1703(b) is substantively
the same as the fourteenth amendment as it relates to desegregation
requirements.
16
point.
Debra P. is the only circuit court decision in
The Court summarily deals the plaintiff's claims under
the EEOA after detailed examination of the constitutional claims.
"Because the test perpetuates past discrimination... The diploma
sanction violates the EEOA...which requires an educational agency
to take affirmative steps to remove the vestiges
77
systems."
of dual school
The lack of any attempt to distinguish the pro-
visions implies that they are substantively the same.
Even better support for the position that §17Q3(b) is coextensive with the fourteenth amendment is found in the Fifth
Circuit's holdings in bi-lingual education cases brought under
the Act.
As stated above, the Castaneda court distinguished
§1703(f) from the rest of §1703 on the basis that §1703(f) did
not contain language requiring a history of discrimination or
present intent to discriminate.
On the other hand, 1703(d) was
held to require a finding of intent to discriminate in employment
practices and to be co-extensive with both Title VI and the
fourteenth amendment.
The Fifth Circuit re-affirmed
this
78
analysis In United States v. State of Texas.
The Mexican-
American plaintiffs brought a bi-lingual education suit under
§170 3(f) and (b).
The circuit court reversed the district
court's mandate for state wide bi-lingual education under
170 3(f), because the issue was rendered moot, by the state's
00540
-18-
enactment of new bi-lingual education programs.
But, the
court remanded on the issue whether other remedial orders
were necessary on the grounds of past segregation under the
fourteenth amendment and §1703(b).
This is a strong indication
that the court considered the provisions the same.
In sum, because the Debra P. did not analytically
distinguish the EEOA and constitutional claims, and because of
the court's treatment of §170 3 in other cases, it seems that
the Fifth Circuit considers 1703(b) to be co-extensive with the
fourteenth amendment.
Title VI
Much litigation over the issue of the relationship of
Title VI to the fourteenth amendment makes this question
79
less novel.
Although some writers have argued that Title
VI creates greater substantive rights than individuals have
under the constitution,
80
that view is not supported by a
81
majority of the Supreme Court.
As with the EEOA, the
court in Debra P. did not distinguish the Title VI claims.
It appears that Fifth Circuit considers it to be co-extensive
with substantive rights
and equitable remedies of the four82
teenth amendment.
It is therefore unlikely that the claims
under Title VI will be analyized in a manner distinct from
the claims under the EEOA and the fourteenth amendment.
The
court in Castaneda held that actions violated the fourteenth
amendment, the EEOA, and Title VI if they were taken with and intent
to discriminate or they perpetuated the effects of past discrimination.
The argument that discriminatory "effects" alone makes out a violation
00541
-19-
83
of Title VI was rejected by the Court.
In light of a conclusion
that the constitutional and statutory challenges to the MCT
in Debra P. are the same, concepts of "vestiges" of a prior
dual school system and remedies for their elimination become
the focus of the analysis.
Vestiges of a Dual School System
and Remedies for Their Elimination
As indicated in the section about desegregation under the
equal protection clause, courts may hold a wide-range of school
officials' acts and omissions to violate the constitution,
when historic or present de jure segregation is found.
The
same acts and omissions of school officals will also constitute
violations of the EEOA and Title VI, if one accepts the proposition that the statutory provisions are co-extensive with the
fourteenth amendment.
The question of the legality of the MCT
exit requirement in a post desegregation setting, turns on
whether the effects (vestiges) of the old dual system are
perpetuated.
If there is such a perpetuation the test is
clearly illegal.
Additionally, if vestiges of the dual school
system become apparent in reviewing the use of the MCT, the
court should exercise its equity powers to assure that school
officials carry-out their affirmitive duty to remove such
vestiges.
Surprisingly little has been written on the subject
of vestiges.
The discussion in this section is an attempt to
elucidate the concept.
Looking beyond overt segregation of students by race,
tangible equal protection violations can be found in "policies
regarding faculty, staff, transportation, extracurricular
activities, and facilities.... If it is possible to identify
a school as a white school or a black school by racial composition
of faculty and staff, the quality of the school buildings or
equipment, or the organization of sports activities, a prima
.
.
314.
racxe case of an equal protection vxolatxon is established."
qc
This is not to say that if separate but equal facilities
are
used no equal protection violation exists.
The Court in Brown
86
v. Board of Education
expressly rejected the separate but
equal doctrine in education.
In fact, Brown holds that seperate
is inherently unequal for intangible reasons.
It is the
individualized effects that the dual system has on students
which constitutes the equal protection violation.
Despite the Supreme Court's recognition that harm caused
by dual school systems was an intangible harm to individuals,
the Court did not directly address the question of remedial
education programs until it decided Milliken v. Bradley (II).
As part of a comprehensive desegregation decree, the district
court ordered programs established in the areas of reading,
in-service teacher training,testing, and counseling.
The
Supreme Court affirmed the decision stating that it was based
on substantial evidence in the record.
The Supreme Court
quoted the Sixth Circuit which said,
"We agree with the District Court that the reading
and counseling programs are essential to the effort
to combat the effects of segregation....
Without the reading and counseling components,
black students might be deprived of the
motivation and achievement levels which the
desegregation remedy is designed to accomplish."
-21-
00543
87
The Court found these programs consistent with equitable
principles which require (1) desegregation remedies be inaccordance with the nature and scope of the constitutional
violation; (2) decrees to be remedial in nature so that victims
of discriminatory action as nearly as possible will occupy the
position they would have
in the absence of such action; (3)
taking account, consistent with the constitution, the interests
of local authorities in managing their own affairs.
89
In Plaquemines Parish School Board v. United States,
the Fifth Circuit upheld remedial programs in a desegregation
decree eight years before Milliken was decided.
A freedom-of-
choice plan allowed blacks to transfer to formerly all white
schools.
The Court said the remedial programs ordered by the
district court were "an intregal part of a program for compensatory
education to be provided Negro students who (had) long been
disadvantaged by the inequities and discrimination inherent in
90
the dual school system."
Again, the decision was based on
equitable powers used in accordance with the record.
In another
case the Fifth Circuit has held, "The court has not merely the
power but the duty to render a decree which will so far as
possible eliminate the discriminatory effects of
91the past as
well as bar like discrimination in the future."
In sum, these cases demonstrate that vestiges of a past
dual school system may be manifest as present segregation inequality of facilities and programs, and intangible harm to
individuals.
Regardless of the nature of the vestige, the
government wrongdoers have an affirmitive duty to eliminate
it.
The courts also have broad equity powers to oversee the
0ft544
school officials conduct toward this affirmitive duty.
Conclusion - Debra P. on Remand
As stated above, Florida will carry a heavy two-pronged
burden in establishing the legality of its diploma sanction
under the Fifth Circuit standard.
First, the state must prove
that the exam is a fair test of that which was taught in the
public school system.
Secondly, the state must prove the
racially dispropartionate MCT results are not caused by vestiges
of the past dual school system or, that the use of the exam is
necessary to provide minority students better educational
opportunities.
Even if Florida meets the exam validation burden,
based on its history of past de jure segregation, facially
neutral tests that perpetuate the effects of past discrimination
are illegal.
92
In McNeal v. Tate County School District,
93
the
Fifth Circuit specifically applied this principle in the area
of public school ability grouping.
In that case a school
district was using an ability grouping program that had the
effect of segregating classrooms.
The Court held that ability
grouping per se is not constitutionally impermissible; but,
in a post-desegregation setting school officials must "demonstrate
that its assignment method is not based on the present results
of past segregation or will remedy such results through better
9 4educational opportunities."
In Debra P. the McNeal analysis
seems to end with the question of vestiges.
If the dispropor-
tionately high MCT failure rate is attributable to some vestige
of past illegal segregation, it is incomprehensible to view the
denial of high school diplomas to the victims as providing them
better educational opportunities. 9 5
00545-
To rebut a presumption that the desparate impact the MCT
has on minority students is a vestige of the past dual school
system, Florida might attempt to offer alternative explanations
for the minorities' high failure rate.
In Parents in Action on
96
Special Education v. Hannon,
a federal district court in
Illinois upheld an I.Q. test used in disproportionately tracking
minority students into classes for the mentally handicapped
on the grounds that the exam was not culturally biased.
The
court accepted the argument that socio-economic factors related
to environment interfere with the cognitive and intellectual
97
98
development of children.
But, m another case
involving
the tracking of students for special education classes, a court
expressly rejected this environmental argument and an argument
that genetic differences might cause the disparate I.Q. test
99
results.
Some sociological theory might be advanced to argue
that certain minority subcultures do not hold educational
achievement as a strong value and that poor MCT performance
can be explained in terms of low motivation.
Regardless of possible merit in any alternative explanations
for minority students' poor academic development, this writer
believes Florida is in a no win situation.
To get to the question
of vestiges Florida must show that the MCT is a fair test of
what was taught in their school system.
If the MCT is validated
by that standard it is necessarily an exam coverning material
that the students have successfully completed to get to the
twelve grade.
Apparently none of the theories for poor educational
performance of minority students had worked against the students
00546-
who attained the twelve grade status.
When the diploma sanction
exam is given at the end of the twelve grade the results are
glaringly skewed against minority students.
The obvious,
question is how did these academically deficient students pass
up through the system for eleven years and then flunk an exam
which is a fair test of what they were taught.
The Fifth Circuit standard of validating MCTs would seem
to create an instrument for identifying students who have been
socially promoted.
Social promotion by itself may be lamentable;
10 0
but, it is not a constitutional or statutory violation.
However, because of the discriminatory manner in which it occurs
in this post segregation setting, equal protection and statutory
rights are jeopordized.
If a MCT is validated to the Fifth
Circuit's standards and it shows minorities failing at disparate
levels to whites, then unequal treatment of minority students
is demonstrated.
The Fifth Circuit held that there is no
current invidious intent to discriminate on the part of Florida
school authorities.
Therefore, the unequal treatment of minority
students that the valid MCT might demonstrate would a vestige
of the old dual school system, rather than present racially intentional
actions.
However, finding unequal social promotions to
to be a vestige of the old dual school system is sufficient for
holding that equal protection, Title VI, and the EEOA have been
violated.
Because the effects (vestiges) of the dual system are
perpetuated by the use of the MCT with a diploma sanction,
in that students discriminated against will be further harmed,
its use should be enjoined.
Additionally, the equal protection
clause 1 0 1 and the EEOA 1 0 2 both impose affirmitive duties on
00547-
school officials to eliminate the vestiges of dual school
systems.
Ironically, that would probably mean ordering Florida
to administer the MCT in some form to identify students who
have been or might be socially promoted in order to give them
10 3
remedial assistance. Under the desegregation case law
and
104
the EEOA
the scope of the remedy should be limited to the extent
of the constitutional violation.
But, clearly action to stop
discriminatory social promotion would be required.
Finally, if
the vestige is eliminated and peer group
10 5 equality is achieved
between students of different races,
there would no longer be
a viable constitutional challenge to the passage of a valid
MCT as a requisite for receiving a high school diploma.
00548
-26-
E N D N O T E S
1.
Gallagher and Ramsbotham, Developing North Carolina's
Competency Program, 9 Sch. L. Bull. 1 (Oct. 1978).
2.
See McClung, Competency Testing Programs: Legal And
Educational Issues, 47 Fordham L. Rev• 651 (1979).
3.
Id. at 657.
Ela. Stat. Ann. §232.246 (WestSupp. 1980).
5.
644- F.2d 397 (Fifth Cir. 1981); rehearing en banc denied,
654 F.2d 1079 (Fifth Cir. 1981).
6.
See Brickell, Seven Key Notes on Minimum Competency Testing,
59 Phi Delta Kappan, 5 89 (1978).
7.
Id.
8.
See Board of Curators of the University of Missouri v.
Horowitz, 435 U.S. 78 (1978).
9.
Debra P. v. Turlington, 644 F.2d 397 (Fifth Cir. 1981)
and Anderson v. Banks, 520 F. Supp. 472 (S.D. Georgia 1981),
540 F.Supp. 761 (S.D. Georgia 1982).
10.
U.S. Const. Amend. XIV.
11.
42 U.S.C. 2000d.
12.
20 U.S.C. 1701 et seq.
13.
U.S. Const. Amend. XIV.
14.
See Baker and Wood, "Taking" A Constitutional Look At The
State Bar Of Texas Proposal To Collect Interest On AttorneyClient Trust Funds 14 Tex. Tech L. Rev. 329 at 341-342.
15.
See McNeal v. Tate County School District, 508 F.2d 1017
(Fifth Cir. 19 75).
16.
Washington v. Davis, 426 U.S. 229 (1976).
17.
McNeal v. Tate County School District, 508 F.2d 1017 (Fifth
Cir. 1975).
18.
Id.
19.
Laws of Florida 1976, Vol. 1, Ch. 76-223, pp. 489-508.
28-
20.
Fla. Stat. Ann. §229 . 55( 2)(a), (d), (f).
21.
Fla. Stat. Ann. §232 . 246(b).
22.
The SSAT was administered in the fall of 19 7 7 and 19 7 8
and in the spring of 19 79. On the first occasion approximately 36% of the students flunked one or both sections.
This group included 78% of all the black students who took
the test, as compared to 25% of the white students tested.
In 1978, 74% of the black students retaking the test failed
one or both sections, as compared to 25% of the white
students. After the test had been given three times,
20.049% of the black students had failed the test all three
times, as compared to 1.9% of the white students. Debra P.
v>
Turlington, 474 F.Supp. 244, 248-49 (M.D.Fla. 1979).
23.
Three classes were certified by the court:
(1) all present and future twelfth grade public school
students in the State of Florida who had failed or who
thereafter failed the SSAT II.
(2) all present and future twelfth grade black public school
students in the State of Florida who had failed or who
thereafter failed the SSAT II, and
(3) all present and future twelfth grade black public school
students in Hillsborough County, Florida, who had failed
or who thereafter failed the SSAT II.
24.
Debra P. v. Turlington, 474 F.Supp. 244 (M.D.Fla. 1979).
25.
Debra P. v. Turlington, 6 44 F.2d 39 7 (Fifth Cir. 19 81).
26.
This holding was based on the rationale that "the state
need not correct all the problems of education in one fell
swoop and it has a stronger interest in those (institutions)
which it pays the cost." Id at 40 6-0 7.
27.
This holding was an affirmance of the trial court without
comment. But, the rationale is based on the standard of
McNeal v. Tate County_School District, 508 F.2d 1017
(Fifth Cir. 1975), which is discussed in the text infra.
28.
The district court judicially noted that de jure segregation
of schools existed in Florida from 1885 to 1967. 474 F.Supp.
at 250. On the basis of evidence presented and judicial
notice of Mannings v. Board of Public Instruction of Hillsborough County, Florida, 427 F.2d 874 (Fifth Cir. 1970).,
the court found that blacks received unequal education from
1967-1971. Id. at 251. The court labeled the period from
19 71-19 79 the "transitional phase" and noted a "host of
human problems." The court found that no remediation programs.
00550-
of any kind were started until 1977, and the "effects of past
purposeful segregation have not been erased or overcome."
Id. at 252.
29
In order for a testing instrument to be scientifically valid
the American Psychological Association requires: criterionrelated vality, content validity, and construct validity.
For a detailed discussion of these concepts as they relate
to MCTs, see McClung, Competency Testing Programs: Legal
and Educational Issues, 47 Fordham L. Rev. 651, 683 (1979).
The Fifth Circuit upheld the District Court finding that
the exam was not culturally biased but found, based on the
record, that a finding of content validity was clearly
erroneous. 644 F.2d at 405.
30
Keyes v. School Dist. No. 1, 413 U.S. 189 (1973).
31
32
See note 28 supra.
33
Apparently, because the injunction was limited to the time
it would take students who can attend segregated schools
to complete their education (4 years). 474 F.Supp. at 269.
34
Taylor v. Ovachita Parish Schools, 648 F.2d 959 (1981).
35
United States v. Gregory - Portland Indep. School Dist.,
654 F.2d 989 (1981).
36
See, e.g., Washington v. Davis, 426 U.S. 229 (1976).
37
The Supreme Court in Pasadena City Board of Education v.
Slangier, 427 U.S. 424 (1976), showed some acceptance of this
view m holding that a school district's one time implementation of a "racially neutral attendance pattern" was to
sufficient to releave it of the district court's continuing
desegregation jurisdiction. Id. at 743-44.
38
443 U.S. 449 (1979).
39
443 U.S. 526 (1979).
40
Debra P. v. Turlington, 644 F.2d at 407.
41
347 U.S. 483 ( 1954) .
42
349 U.S. 294 (1955)
43
Id. at 301.
44
Nowak, Rotunda, and Young, Constitutional Law (19 78) at 56 5.
45
377 U.S. 218 (1964).
46
Id. at 234.
47
391 U.S. 4 30 (1968).
00551-
48.
Id^ at 438-39.
49.
Id. at 437-38.
50.
402 U.S. 1 (1971)
51.
Id^ at 16.
52.
Id. at 15.
53.
413 U.S. 189 (1973).
54.
Id. at 205.
55.
418 U.S. 717 (1974).
56.
IdL at 744.
57.
20 U.S.C. §1701 et. seq.
58.
20 U.S.C. §1712 addresses formulation of remedies under the
Act:
"In formulating a remedy for a denial of equal educational
opportunity or a denial of the equal protection of the laws,
a court, department, or agency of the United States shall
seek or impose only such remedies as are essential to correct
particular denials of equal educational opportunity or equal
protection of the laws."
59 . 20 U.S.C. §1701.
60 . H.R . Rep. No. 13915 , 9 2d Cong. (19 72).
61.
120 Cong. Rec
62.
20 U.S.C. §1702.
63.
518 F.2d 8 53 (Sixth Cir. 19 75).
64.
Id. at 8 56
H2161 (May, 1974).
•
65 . 577 F.2d 1339 (1978).
66 . Id. at 1346.
67.
See notes 52 and 54 infra and related text
68 . 560 F.2d 619 (1977).
69 . Id. at 62 3
•
70 . Castaneda v. Pickard, 658 F.2d 989 (1981).
71.
Id.
00552-
72.
The subsection provides:
"No state shall deny equal educational opportunity to an
individual on account of his or her race, color,, sex, or
national origin, by - (f) the failure of a educational
agency to take appxiate action to overcome language barriers
that impede equal participation by its students in its
instructional programs."
73.
A consistent case is Martin Luther King Junior Elementary
School Children v. Michigan, 473 F. Supp. 1371 (D.C. Mich.
19 79), which held that while 170 3(f) was not a vehicle to
attack all the problems caused by poverty, students
language impediments must be remedied by appriate steps,
without regard to discriminatory intent. But, a contra
view is found in Otero v. Mesa Co. Valley School District,
470 F.Supp. 326 (D.C. Colo. 1979), which hold §1703 to be
co-^extensive with Title VI and the fourteenth amendment.
Therefore intent to discriminate must be shown.
74.
The subsection provides: "No state shall deny equal
educational opportunity to an individual on account of his
or her race, color, sex, or national origin, by - (d)
discrimination by an educational agency on the basis of
race, color, or national origin in the employment, employment
conditions, or assignment to schools of its faculty or staff,
except to fulfill the purposes of subsection (f) below;"
75.
648 F.2d at 1000 - 1001.
76 .
644 F.2d 39 7 ( 1981) .
77.
Id. at 408.
78.
680 F.2d 356 (1982).
79.
See e.g., Lee v. Conecuh County Board of Education, 634
F.2d 959 (5th Cir. 1981); Lee v. Washington County Board of
Education 625 F.2d 1235 (5th Cir. 1980); Crawford v. Western
Electric Co., Inc., 614 F.2d 1300 (5th Cir. 1980); Williams
v. DeKalb County, 5 82 F.2d 2 (5th Cir. 19 78).
80.
See e.g., Benjes, The Legality of Minimum Competency Test
Programs Under Title VI of The Civil Rights Act of 19 64,
15 Harv. C.R. - C.L.L. Rev. 1980).
81.
See Regents of the University of California v. Bakke, 438
U.S. 265 (1978).
82.
Castandeda v. Pickard, 648 F.2d 989 (1981).
6 2 and 6 3 for more cases.
83.
Id.
00553-
See also notes
84
Nowak, Rotunda, and Young, Constitutional Law (19 78) at
578, citing, Swann v. Charlotte-Mecklenburg Board of
Education, 402 U.S. 1, 18 (1971).
85
See Plessy v. Ferguson, 163 U.S. 537 (1896).
86
347 U.S. 483 (1954).
87
433 U.S. 267 ( 19 77) .
88
Id. at 278.
89
415 F.2d 817 (1969).
90
Id. at 831.
91
Felder v. Harnett Co. Board of Education, 409 F.2d 1070,
1074 (Fourth Cir. 1969). Many Fifth Circuit desegregation
cases have recognized the affirmitive duty to eliminate
vestiges of a dual school in formulating their remedies:
Tabsy v. Concerned Citizens of Glenview, 572 F.2d 1010
(1978); Northcross V. Board of Education of Memphis City
Schools, 466 F.2d 890 (197 2); Edgar et. al v. United States,
404 U.S. 1206 (1971); Youngblood v. Board of Public Instruction
of Bay Co. Fla., 430 F.2d 625 (1970).
92
Gaston v. United States, 395 U.S. 285 (1969).
93
508 F.2d 1017 ( 1975) .
94
Id. at 1020.
95
For a recent position on the Supreme courts view of the
importance of educational opportunities see, Plyler v. Doe,
10 2 Sup.Ct. 2382 (1982).
96
506 F. Supp. 831 (N.D. 111. 1980).
97
Id. at 878.
98
Larry P. v. Riles, 495 F. Supp. 926 (N.D.Cal. 1979).
99
Id. at 955-56.
100
Without a suspect class or fundemental right involved,
state actions are constitutional if not irrational (equal
protection standard) or arbitrary (due process standard).
The state action also has the benefit of a presumption of
constitutionality.
101,
Swann v. Charlotte-Mecklengurg Board of Education, 40 2 U.S.
1 (1971).
10 2.
20 U.S.C. 1703(b).
00554-
103.
Milliken v. Bradley (II), 433 U.S. 267 (1977).
104.
20 U.S.C. 1712.
105.
McNeal v. Tate County School District, 508 F.2d 1017 (Fifth
Cir. 1975).
00555-