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Competency Tests: Legal Authority and Challenges

Most education reform since the 1980s has focused on "performance-based standards" which ostensibly indicate a minimum level of academic achievement that all graduating students should have mastered. Some important laws concerning standards-based school reform include:

  • The No Child Left Behind Act, signed into law by President George W. Bush in January 2002, refines and makes major amendment to Title I (see below). Among other factors (like substantial flexibility for states in the use of federal funds), the new law requires states to assess reading and math skills in students from grades three to eight on an annual basis.
  • The Educate America Act (20 USC 5801 et seq.) is only binding upon states that accept its grant funding (nearly all) but sets as its primary goal the development of strategies for setting statewide student performance standards and for assessing achievement of those standards.
  • Title I of the Improving America's Schools Act of 1994 (20 USC 6301 et seq.) contains an explicit set of requirements for states to submit plans for challenging content and performance standards and assessing student mastery of the requirements in order to receive Title I funds (the largest federal school aid program).
  • The Individuals with Disabilities Education Act (IDEA), (20 USC 1400 et seq.) was substantially amended in 1997. The Act requires that states which receive grant funds under its auspices must develop IEPs (individual education plans) for students with disabilities or who are deemed in need of special services. The 1997 amendments required states to develop policies and procedures to allow students with disabilities to participate in state and district-wide testing programs, with necessary accommodations.

Competency Tests and Legal Authority Challenges

Courts have had numerous opportunities over the decades to pass on the validity of education testing in conjunction with high school graduation and promotion (e.g., to the next level grade). Most legal challenges have been grounded in the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. Challenges to testing of special education students have invoked IDEA and Section 504 of the Rehabilitation Act of 1973.

Due Process Claims

The Due Process Clause of the Fourteenth Amendment prohibits a state from depriving "any person of life, liberty or property without due process of law." Over the years, it has been held by several courts that the receipt of a high school diploma was a "property interest" which a state could not deprive an individual of without due process of law. Additionally, some courts have found that students have a constitutionally protected "liberty" interest in avoiding the stigma or impaired career advancement that accompanies the failure to achieve high school graduation. (See, e.g., the Goss case, 419 U.S. at 574.)

The key to "due process" is the requirement of substantial notice to a person of the manner in which he or she may be denied or deprived of such an interest (graduation from high school) or, alternatively stated, substantial notice of what will be required of the student in order to graduate. With respect to testing, some courts have held that two years' advance notice that graduation was conditioned upon the passing of an exit exam in addition to credit hour completion was adequate; other courts have demanded more time.

Still other courts have held that students had no protected property interest in the expectation that a former, lower standard would continue to be accepted as the threshold for academic promotion to the next grade or graduation.

In determining whether denial of a high school diploma based on a failure to pass a minimum competency exit exam is unconstitutional, courts balance "the private interests of the [students], the risk of an improper deprivation of such interest and the governmental interest involved." (Mathews v. Eldridge, 424 U.S. 319) Almost all cases presented on these issues have turned on whether the school system had provided prospective graduates with adequate notice of new diploma requirements.

Equal Protection Claims

Similarly, the Equal Protection Clause of the Fourteenth Amendment guarantees that no person will be denied the equal protection of the laws in the enjoyment and/or exercise of personal rights as that enjoyed by other persons in like circumstances. In order to ensure equal protection for students, school systems must uniformly apply educational standards and testing procedures across the board (with legal accommodations factored in for learning disabled or special needs students).

Generally, courts are more likely to uphold a competency tests faced with legal authority challenges if there is a presence of additional factors such as opportunities for retesting, remedial or tutorial programs, and the availability of alternative ways to obtain a diploma.

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