Maine Bar Journal
Fall 2003 #4.
High-stakes Testing: The Next Round of Finance Litigation
Maine Bar JournalFall 2003High-stakes Testing: The Next Round of Finance Litigationby John R. MunichThe standards movement of the past decade has had a profound impact on education policy, culminating in the enactment of the No Child Left Behind Act of 2001 (the "NCLB").1 Even before enactment of the NCLB, most states had set academic standards describing what students were expected to know and had begun testing students to determine the extent to which standards were being met. Inevitably, such testing revealed that substantial numbers of schools, particularly schools with significant poor and minority student populations, failed to meet the specified standards. For example, in the mid-990s, data collected by the Department of Education for selected states found that some 660 schools in the state of Ohio, 641 schools in the state of Michigan, 550 schools in the state of Missouri, 410 schools in the state of New York and 310 schools in the state of California failed to meet their respective state standards.
Available data indicate that poor and minority students, who are typically concentrated in urban school districts, lag far behind others in meeting state performance standards. For example, the latest NAEP results reveal that 63 percent of African American fourth graders are below the "basic level" of performance on the reading assessment, compared to only 27 percent of white students. (The Nation's Report Card, Fourth Grade Reading 2000, NCES (April 2001), pp. 3031.) Some 60 percent of fourth-grade students eligible for the free/reduced lunch program were below basic on the reading assessment compared to 26 percent of fourth graders not eligible for the program. (Id., at p. 40.) Even in Texas, where researchers have found that the performance of poor and minority students has been particularly promising, data from the Texas Education Agency indicate that in 2000, 67 percent of African American and Hispanic students in Houston met state standards, compared to 80 percent of students in the rest of the state. (See www.tea.state.tx.us.)
In addition to implementation of high academic standards, increasing use of "high-stakes" testing has caused controversy, particularly regarding the effect of such tests on poor and minority students. An increasing number of states are requiring students to pass state achievement tests in order to be promoted to the next grade level or, more commonly, to graduate from high school and receive a diploma. Florida is one such state, and it has not escaped controversy. In May 2003 the state released test results of its newly required Florida Comprehensive Achievement Test ("FCAT"), which students must pass in order to earn their high school diplomas, The results revealed that thirteen thousand high school seniors, or roughly one of every eleven students in the graduating class, failed the exam. These results have caused an uproar among community leaders and legislators, particularly regarding the test requirement's effect on minority students and students for whom English is a second language. Protesters have called for boycotts of the Florida lottery, the state's citrus industry, and theme parks in response to the state's FCAT policies. (13,000 Fla. Seniors Fail Achievement Test, New York Times, May 19, 2003.)
Meeting the various requirements of the NCLB Act and preparing students for high-stakes assessment tests is likely to impose additional costs on school districts everywhere, and particularly on school districts with large poor and minority populations. How will school districts meet these costs?2 And how will the increased focus on student assessment test outcomes factor into the equation? As described below, the implementation of academic performance standards mandated by the NCLB and the increasing use of high-stakes exams will likely spur a new direction in school finance litigation, as litigants use these requirements to challenge school finance schemes by combining concepts seen in traditional challenges to high-stakes testing with approaches frequently used in "adequacy" litigation.
Previous Rounds of School Finance Litigation
Over the years, plaintiffs in school finance litigation have employed numerous theories to challenge state funding mechanisms. In the early 1970s, the Equal Protection Clause of the Fourteenth Amendment provided a basis for some state courts, such as California, to strike down as unconstitutional state school finance systems that allowed substantial disparities in revenue to persist among individual school districts. Serrano v. Priest, 487 P.2d 1241 (Cal. 1971). A Supreme Court decision in 1973 essentially brought this era to a close. In a challenge to Texas' school finance system, the Supreme Court held that, to satisfy the Equal Protection Clause, the state's finance mechanism need only bear a rational relationship to a legitimate state purpose. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, (1973). This standard places a fairly low burden on the state to defend its system, and from the perspective of plaintiffs, the Court's decision makes the Equal Protection Clause a difficult theory upon which to rely.3
Beginning in the early 1990s, school finance challenges began to focus on state constitutional provisions guaranteeing, in varying language, the right to an "adequate" education. These provisions are often referred to as the "Education Article" or "Education Clause" of the state constitution. Many states have seen successful challenges premised on this theory. An increasing number of trial courts, and to a lesser extent appellate courts, are ruling in plaintiffs' favor and holding that state systems of funding public schools are unconstitutional (e.g., North Carolina, Arkansas, Wyoming, etc.).
The language of the particular state constitution appears to be of little consequence. What counts is what the...