High Stakes Testing Law and Litigation
Paul T. O’Neill*
The exams are coming – exams with consequences for takers and givers alike. The new high stakes exam in Massachusetts and Texas kick in as of spring 2003; those in California and Virginia take effect in 2004. New York is phasing in its new testing program now, one new subject a year, until students must pass all five to graduate. Many states are already at least as far along; by current count, eighteen states are in some stage of requiring students to pass a uniform, large-scale assessment in order to receive a high school diploma (often called an “exit exam”), and another six plan to do so in the near future. That figure has consistently risen over the last decade and the numbers are likely to continue to climb. Other high stakes exams focus on promotion from grade to grade and/or ability tracking, either together with, or independent of, a diploma requirement. Many people refer to these sorts of tests as “high stakes” because of the consequences they carry and the doors they can open or close for the children who take them. The stakes can be very high. Retention in any grade has been shown to be closely linked to high dropout rates, while a high school diploma is a threshold requirement for acceptance into college, the military, and many high-paying careers. Students who leave high school without a diploma begin their adult lives at an enormous disadvantage in terms of career options, potential for achievement, and self esteem. Research has shown that individuals who lack a high school diploma or GED earn approximately nineteen percent less per hour than do those who have one. The situation is markedly worse for students who already face challenges in demonstrating what they know such as those with disabilities and English Language Learners. Indeed, it should be no surprise that much of the litigation surrounding high stakes tests involves plaintiffs receiving special education services. And yet, many people believe, as a New York Times article recently stated, that “the strong medicine of standards-based reform can act as a powerful tonic, at least when intelligently administered,” and that high stakes exams can be an excellent way to bring about such reform. Many states have invested heavily in this belief, spending many millions on their testing programs to date. Their hope is that by holding high expectations and standards for all children, they will raise academic achievement to levels of competency or even mastery. This laudable goal is proving trickier to implement than it is to endorse. In any event, high stakes are not only, or always, applied to individual students. High stakes tests can also have a huge impact on teachers, schools, and districts. Teacher bonuses, state funds for schools, and even the control of a particular school or school district can all be affected by the results of standardized tests. A test that does not affect individual students but does affect how much money a school receives is not a high stakes test for the students (often referred to as individual accountability); rather, these tests carry high stakes for the school and are often referred to as instruments of systemic accountability. The recently enacted federal No Child Left Behind Act (NCLB), for example, does not focus on individual accountability, but holds schools and districts accountable for the academic progress of their students. This paper will describe the general features of these high stakes tests, provide a grounding in the federal laws that foster and sculpt them, offer an analysis of case law precedents, provide an account of current and recent litigation, and attempt to identify significant patterns and factors that will shape future testing. It should be noted that this is an area in flux; at the moment states are making modifications to their testing programs or plans with such...
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