An Assessment of Magnet Schools
and Standardized Testing
© 2006 by Peter Jude Fagan
Law Presentation
Legal Question
Does the disproportionate amount of low-income students
who fail the Louisiana Educational Assessment Program (LEAP) and score
low on other standardized tests violate their civil rights under the
equal protection clause of the Fourteenth Amendment?
Legal Precedents
The Fourteenth Amendment to the Constitution says in
part: “that no state shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States; . . .
nor deny any person within its jurisdiction the equal protection of
the laws.”
In Cochran v. Louisiana State Board of
Education, 1930, the Supreme Court ruled that if tax monies are
being spent for the benefit of school children and not for the benefit
of the private school they attend, then such appropriations are not in
violation of the law.
This case involved the use of state tax monies that
were used to buy textbooks for parochial schools and other private
schools and then supplying them free of cost to these schools. The
Court stated: “The schools are not the beneficiaries of these
appropriations. They obtain nothing from them . . . The school
children and the state alone are the beneficiaries.”
In Brown v. Board of Education of Topeka, 1954,
the Supreme Court ruled, “education is perhaps the most important
function of state and local governments. Compulsory school attendance
laws and the great expenditures for education both demonstrate our
recognition of the importance of education to our democratic society.
It is required in the performance of our most basic responsibilities,
even service in the armed forces. It is the very foundation of good
citizenship.
“Today it is a principal instrument in awakening the
child to cultural values, in preparing him for later professional
training, and in helping him adjust normally to his environment. In
these days it is doubtful that any child may reasonably be expected to
succeed in life if he is denied the opportunity of an education
(emphasis added). Such an opportunity, where the state has undertaken
to provide it, is a right which must be made available to all on equal
terms.”
This case involved the segregation of white and African
American children in the public schools of a state solely on the basis
of race.
In Lee v. Macon City Board of Education, the 5th
Circuit Court of Appeals said in 1974, “in our increasingly
technological society getting at least a high school education is
almost necessary for survival. Stripping a child of access to
educational opportunities is a life sentence to second class
citizenship unless the child has the financial ability to migrate to
another school system or enter private school.”
In Tinker v. Des Moines Independent Community School
District, 1969, the Supreme Court ruled “that whatever their age,
students have constitutional rights.” This case involved the wearing
of black armbands by students in protest against the Vietnam War. The
decision has had widespread effect on the operation of schools in the
United States because the Supreme Court said that: “Schools have had
to pay attention to school law.”
In Debra P. v. Turlington, the 11th Circuit
Court of Appeals ruled in 1984 that state exams were constitutional as
long as the test itself was instructionally valid and that vestiges of
past intentional segregation did not cause the test’s disproportionate
impact on blacks to be discriminatory.
In this case the plaintiffs had argued that the test
was in violation of the Fourteenth Amendment equal protection clause
because it was 1) racially biased and 2) that plaintiffs were provided
inadequate notice of the graduation requirement and inadequate time to
prepare for the exam. But the argument presented here involves a
disproportionate amount of failing low income students of all races,
creeds and ethnicities.
School Policy
Fourth and eighth grade students in Louisiana must pass
the Louisiana Educational Assessment Program (LEAP) Exam before being
promoted to the next grade. Those students who pass their grade but
fail the LEAP Exam can choose to go to summer remediation and then
retake the exam.
If they pass the LEAP Exam, they can then go on to the
next grade. But if they fail it again they must either repeat the
grade or appeal to the principal of the school who then must refer to
a chart distributed by the state Board of Elementary and Secondary
Education (BESE) to determine if they can go on to the next grade.
Any student who fails the 4th or 8th grade must repeat
the grade regardless of whether or not they pass the LEAP Exam.
Discussion
In Louisiana state tax monies are being used to
purchase standardized test, placement exams and exit (LEAP) exams
that all public school students must pass.
In taking these exams, students who are from affluent
families, affluent schools and affluent school districts have an
advantage over children from lower income groups. Children from higher
income families have computers, other technologies and other
educational resources available to them in their homes, in their life
styles and in their environments to help them with their homework,
class work, and other learning activities that many children from
lower income families do not have.
Questions on these standardized tests frequently
require knowledge and skills more likely to be possessed by children
from an affluent background who are able to tap into a knowledge based
gained outside the classroom through test prep materials, test prep
services and other educational opportunities not obtainable by many
low income children.
Affluent families, affluent schools and affluent school
districts have a distinct advantage over children living in poverty in
that they are better able to afford such products, the most effective
versions of such products and other newer technologies and educational
opportunities not obtainable by students living in poverty.
Children from an affluent background thus have an
advantage over children living in poverty when taking standardized
tests.
Forcing a child to repeat a grade because he or she
lacked the financial resources to obtain, use or have access to a
computer and other technologies and educational opportunities strips
that child of an educational opportunity to advance in his or her
education. Such is an educational opportunity that children from
affluent backgrounds have at their disposal that children of poverty
do not have.
Statistics clearly show that children from higher
income families do better on LEAP testing than children from lower
income families. (Times Picayune, Sep. 24, 1999 p. A-12;
Times Picayune, Oct. 19, 2000 p. A-10; Times Picayune,
Nov. 20, 2002 p. A-8; Times Picayune, Jan. 24, 2003 p. A-4;
Education Week, Sep. 27, 2000 p. 60)
This gives children from higher income families a
disproportionate advantage over children from lower income families.
To give one class of students an advantage in doing something that
another class of students does not have is a miscarriage of justice.
The state computed school performance scores are not a
valid method of comparing one school with another, nor can any
standardized test ever be used to compare them, because these
standardized tests do not consider the hidden curriculum of each of
the individual schools.
No two schools have the same hidden curriculum (the
physical condition of the school and the classrooms, the age of the
textbooks and the age of the school, the number of students per
classroom, location of the school, technological facilities available
to the students both on and off campus, to name just a few differences
between schools).
Standardized tests cannot even be used to compare one
student with another within the same school because no two students
are the same. They each have different backgrounds, different life
experiences, different biographies. Each student carries a different
“school bag.”
For example, some parents help their children with
their homework and other parents do not (or cannot) help them. Some
children from lower income families do not even have parents to help
them. Some students have computers and other technologies and
educational opportunities in their homes and in their lives to help
them do their homework and gain knowledge that many children from
lower income families do not have.
Those students who do receive help from parents or who
have state-of-the-art-technologies and other educational opportunities
available to help them have a definite advantage over those who do not
or cannot get this help they need.
Although all schools will have some hidden curriculum
in common, neither is this curriculum factored in – and cannot be
factored in – when comparing one school with another or one student
with another.
The most glaring hidden curriculum that all schools
have in common is poverty. All schools have some students who are
considered as living below or near poverty. But the statistics from
state computed school performance scores make it quite evident that
those schools that have fewer students living in or near poverty score
better (higher) over all than those schools that have the majority of
their students living in poverty. (See above references)
Thus state tax monies are being used to the
disadvantages of those students living in or near poverty.
The LEAP assessment tests are neither a valid nor a
reliable method of measuring a student’s academic growth. This is
because there is no method by which the assessors can prevent
cheating, as there are no independent test monitors.
These tests rely on the honor of teachers not to help
students get correct answers, while they monitor their own students
taking the tests! (Although most teachers are honorable in
administering these tests, this does not alter the fact that they are
invalid and unreliable. This is because the validity and reliability
of a test does not rely on someone’s honor. It relies on independent
proof that there was no cheating on the test.)
The LEAP Exam has no independent proof that there is no
cheating on the test.
Conclusion
Clearly, the LEAP Exam is not instructionally valid, as
it does not and cannot test for the hidden curriculum of each school
and the “school bag” that each student carries with him or her. This
is in violation of Debra P. v. Turlington.
Tax monies are being spent to pay for LEAP Exams; exams
that are not for the benefit of the children from lower income
families. This is in violation of Cochran v. LA State Board of
Education.
Forcing low income students to repeat a grade simply
because they do not have access to technologies in their homes, after
school help and other educational opportunities available to them that
affluent children have is in violation of Brown v. Board of
Education and Lee v. Macon City Board of Education.
The LEAP Exam is not valid or reliable as there is no
way to prevent cheating or proof that there was no cheating. This too
is in violation of Debra P. v. Turlington.
All students have constitutional rights, as noted in
Tinker v. Des Moines Independent Community School District.
These standardized tests, which are mandatory for placement and
advancement, favor one class of student over another and as such are a
violation of the equal protection clause of the Fourteenth Amendment.
Clearly, students from low income families who are
forced to take the LEAP Exam (and other standardized tests) do not
have equal opportunity or equal protection of the laws. Therefore,
their Fourteenth Amendment rights are being trampled on.
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