CENTER FOR LAW AND EDUCATION

www.cleweb.org

515 Washington Street
Suite #510
Boston, MA 02111
(617)451-0855

1875 Connecticut Avenue, N.W.
Washington, D.C. 20009
(202) 986-3000

Please note that the following information provided in "Question and Answer" format has been abbreviated for purposes of presenting the issues in a simple and straightforward manner. The questions raise complex legal issues that cannot be treated adequately in this format. Most of the questions raised below have no clear answers as they have not yet been addressed by a court of law. As a caveat, it is important that students are aware that courts, in general, are reluctant to interfere in education issues that concern academic decisions.

 

Can the Commonwealth refuse to give a diploma to a student who does not pass the MCAS?

Courts in other states have found that states have the authority to require that students pass minimum competency tests in order to be graduated with a diploma. In those cases, however, courts have ruled that the state has to give students adequate notice of the testing requirement so they have enough time to prepare for these ‘high stakes’ tests, and the state must ensure that all students have had a sufficient quality opportunity to learn the skills and knowledge measured [here, by the 10^th grade administration of the MCAS]. In other words, the test must have curricular validity. Curricular validity demands, first, that the test content adequately corresponds to the required curriculum that the schools should have been teaching before the test and, second, that the test content adequately corresponds to the material actually taught to students in the schools. If the test fails either of these criterion, then the test cannot be used to punish or reward any students. Also, because Massachusetts is one of the first states to require that students pass an exam related to high standards instead of minimum competency, the court might find that the state has an even greater obligation before denying students a high school diploma based on the test. Students who boycott and refuse to take the test will be in the same position as students who do not pass the MCAS if it is successfully challenged on notice and/or validity grounds.

Do students have a right to express their opposition to the MCAS by refusing to take the test?

Students who choose not to take the test in order to express their opposition to the MCAS have protections under the Massachusetts and federal constitutions’ free expression clauses.¹ In the 1969 case of Tinker v. Des Moines, the United States Supreme Court declared that students do not "shed their constitutional rights to freedom of speech at the schoolhouse gate."² While this case determined that students had the right to protest in schools, it did not establish this as an absolute right. Instead, students have the right to free speech provided that their conduct does not "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school."³ Therefore, schools can punish students if their conduct is disruptive to others; schools cannot, however, suspend students just because they fear that MCAS protest will cause a disruption.⁴ States also have free expression laws that ensure that students cannot be punished for exercising their right to free speech.

Students should be able to avoid punishment for protesting (as distinct from avoiding consequences for refusing to take the test) by ensuring that their behavior during the school day is not disruptive of the administration of the test or classes. If the school has not made any provision for how students who boycott will be otherwise engaged in a learning activity, the student who is boycotting should accord him/herself in a manner that cannot be seen as disruptive of the educational process. They can pass out leaflets, wear protest buttons or armbands, and publish anti-MCAS newsletters. Students can organize student groups against the MCAS and can even use school meeting rooms that other student groups are allowed to use after school.

Can students be disciplined if they refuse to take the MCAS?

The law in the area is unclear as there have been no decisions on point in Massachusetts. Students who are considering boycotting the MCAS may want to examine their particular school’s written discipline policies. Massachusetts law demands that high school principals prepare and distribute to all students handbooks that describe the rules pertaining to student conduct.⁵ These handbooks give notice to students so that they know in advance what behavior is expected and the possible sanctions for violating this behavior code. Discipline codes also need to be filed with the Department of Education and to any other person who requests them.⁶

If the handbook does not address student refusal to take tests or refusal to perform academic requirements, then students could challenge any ensuing punishment for refusal to take the MCAS. Rules that fail reasonably to tell students what behavior is subject to discipline can be challenged as unconstitutionally vague. The government, including public schools, cannot punish a person for committing an act that a reasonable person could not know had been proscribed. Punishing students based on unconstitutionally vague rules could violate due process requirements of the Fourteenth Amendment because the lack of notice could render the punishment arbitrary and capricious.⁷

NOTE, however, that there is a lot of uncertainty in this area, for while school codes may be silent about a student’s refusing to perform an academic requirement, it’s necessary to question whether there is there any reference in the code to "insubordination" or "disobedience" or some other broad area that may give cause for concern? And, can a refusal to take the test be so construed?

In a very different context, and in a ruling arguably limited to its facts, that concerned a challenge to a school committee’s authority to expel a student for committing a battery against another student that was planned at school but, in fact, occurred off school property, the Massachusetts Supreme Judicial Court determined that although there was no specific rule in the school discipline code prohibiting such conduct off school grounds, school committees have wide discretion in school discipline matters and their decision to impose discipline was not arbitrary or capricious.⁸

 

How can students know possible disciplinary actions before protesting?

Before engaging in protest against the MCAS, students should examine the school’s written discipline policies. Massachusetts law demands that high school principals prepare and distribute to all students handbooks that describe the rules pertaining to student conduct. Additionally, discipline cannot be excessive, for excessive punishments reach beyond the power of the principal, violate state law, and are arbitrary and capricious. Because the Massachusetts courts have not decided a case regarding the legitimacy of disciplinary sanctions (detention, suspension, or expulsion) for failure to take a standardized test, it is unclear what would constitute excessive punishment in this context.

Also, school boards must follow their own rules in punishing a student. If the school board has passed discipline rules for itself, then these rules must be followed, and if they are not, then the disciplinary measure can be challenged.

Have any districts made decisions about discipline of students for protesting the MCAS?

Last year, Holyoke High School suspended the seventeen students who protested the exam, either by failing to answer or by writing essays about why they disagreed with the MCAS. The school suspended the students for three days, but then rescinded the suspension after receiving a protest letter from a Massachusetts ACLU lawyer, who argued that the students had not been given notice of what rule this protest violated and that students were being punished because of their beliefs. The school capitulated, and the students were allowed back to school without further punishment.

Other individual school districts have taken stances on student punishment because of failure to take the MCAS. The Cambridge School Committee approved a policy guaranteeing no reprisals will be taken against students who refuse to take the MCAS test. Furthermore, the policy directs schools to provide an instructional settings wherever possible during the test-taking time. The policy similarly protected teachers and staff members from reprisals for speaking out against the MCAS. Brookline has passed a similar policy forbidding schools from punishing student MCAS protesters

 

Who sees the MCAS scores? How do the schools report the scores?

The Department of Education reports MCAS scores to the student’s school. This score then becomes part of the student’s temporary record. A temporary record differs from the permanent record (transcript) because it can be destroyed sooner and contains more information than the transcript. Because temporary records are covered by state and federal law, schools cannot release the information in them without the permission of the student or parents. Colleges will not receive the MCAS scores on the transcript, and eligible student or parents would have to give permission for the school to release MCAS scores to a post-secondary institution. Students can, however, authorize the school system or the testing company to release MCAS scores to colleges.

What if post secondary institutions ask for MCAS results or the Commonwealth amends the definition of ‘transcript’ to include MCAS scores?

In either instance, the parents and the eligible student has some protection. According to the Federal Education Rights and Privacy Act (FERPA), parents and students who are above eighteen can request an amendment to the student’s education record if he or she believes that the information contained in the record is "inaccurate, misleading, or in violation of the student’s right of privacy." If the school board decides not to amend the record, then the parents have the right to place a statement in the record, explaining the inaccuracy or misleading information; this statement has to be released with the record.⁹

Parents of students who boycott the MCAS (or students themselves if they are fourteen years old or in 9^th grade)¹⁰

could complain that a zero notation for the MCAS scores in the student record is misleading because it implies a complete lack of knowledge, and thus, misrepresents the student’s level of proficiency re/knowledge and skills being assessed. Parents could challenge the record whether the student refuses to answer any questions or answers some of them; NOTE however, it appears that challenging a misleading score would prove more compelling if a student refused to answer any part of the test.

Can students protest the MCAS by staying home from school on testing days?

Students can protest in this way, but this method of protest could result in many negative consequences. Massachusetts truancy law demand that students not miss more than seven days or fourteen half days in any six month period. Exceeding this limit could result in a fine for the parents or the initiation of a Care and Protection action against the parents. Please check with your school about your particular scheduling if you intend to miss school during the MCAS. In order to avoid raising issues of truancy violations and the possibility of a Care and Protection order, students who are committed to protesting the MCAS should plan to attend school on the testing days.

Footnotes

1. The Massachusetts Constitution states, "The right of free speech shall not be abridged." (Mass. Const. Ann. Pt. 1, Art. XVI). The First Amendment of the United States Constitution reads, "Congress shall make no law…abridging the freedom of speech...."
   
2. ^{Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 506 (1969).}
   
3. Id. at 509.
   
4. See Tinker; see also Betussik v. Woodland R-IV School District, 30 F. Supp.2d 1173 (1999).
   
5. c. 71 § 37H, G.L.
   
6. Id.
   
7. Bertens v. Stewart, 453 So.2d 92 (Fla. App. 1984); Ochsner v. Bd. Of Trustees of Washington Community College, 811 P.2d 985 (Wash. App. 1981).
   
8. Nicholas B. v. School Committee of Worcester, 412 Mass 20 (S.J.C. 1992)
   
9. Massachusetts student record regulations (which would control since they are stronger than the federal regulations) allow "eligible students" as well as parents to place information, statements, etc. in student records. 603 CMR 23.08.
   
10. Unlike FERPA, where students have no rights until they are 18, "eligible students under Mass. regulations are students who are 14 years old or in 9^th grade.