Lawsuit to allege MCAS is widely discriminatory

 

By Anand Vaishnav and Michele Kurtz, Globe Staff, 9/19/2002

In the first legal attack against the MCAS exam as a graduation requirement, a group of lawyers intends to file a federal lawsuit today alleging that Massachusetts has failed to prepare thousands of students in struggling school districts for the test, and that the exam discriminates against minorities, the disabled, and non-English speakers.

Lawyers for the plaintiffs - six unidentified students from the Holyoke and Springfield area - say their clients' schools haven't taught them the material covered in the MCAS exam. They also contend that state education officials overstepped their authority in requiring students to pass the math and English exams in order to get a diploma. The exam is a graduation requirement beginning with the class of 2003.

The class-action suit would challenge the use of the test as a graduation requirement on behalf of all students who failed the exam. The suit names six groups of students it says are discriminated against by the test: blacks, Hispanics, students with limited English, disabled students, students in vocational/technical schools, and students in the Holyoke school district.

The lawyers plan to ask a federal judge to issue an injunction that would throw out the test as a graduation requirement for all Massachusetts students. They will also ask the court to order Massachusetts to better train teachers ''to meet the educational needs'' of students who have failed the test.

The suit is expected to be filed in US District Court in Springfield. Lawyers for the plaintiffs plan to hold a news conference on the steps of the State House this morning - just minutes after the state Department of Education releases district-by-district tallies of the latest scores.

Many education observers have predicted a lawsuit would be filed challenging the MCAS test, a product of the 1993 Education Reform Act, which is regarded as one of the toughest of its kind in the nation.

''Instead of fixing the schools and in fact attaining the high goals of the Education Reform Act, as well as the education clause of the Massachusetts Constitution, the state instead opted to enact and use a high-stakes exam that effectively has punished, sacrificed, and abandoned many of these students that really were the ones who needed education the most,'' said Tom Frongillo, an attorney with Testa, Hurwitz, and Thibeault of Boston, one of four groups of law firms representing the plaintiffs.

Department of Education spokeswoman Heidi B. Perlman said last night that she couldn't comment directly on the claims because state officials haven't seen the complaint. But she vowed that the lawsuit will not slow the DOE's efforts to improve the state's 1,900 public schools. She added that the DOE has worked for several months with Attorney General Thomas F. Reilly's office to plot strategy in anticipation of a legal challenge.

''We are extremely well-prepared and ready to go to court if necessary to defend state law,'' Perlman said. ''We stand by the exam, and we will not allow this to deter us from the business at hand, which is to ensure all children in Massachusetts public schools get the best education possible.''

About half of the states in the nation require students to pass a test to graduate, or are phasing in such a requirement. Even so, the plaintiffs challenging the test face an uphill battle: similar suits elsewhere have failed. In Texas, a federal judge ruled in January 2000 that although the state's test poses problems for minority students, it does not discriminate. The judge found that the Texas Assessment of Academic Skills helps identify students who are failing and steer them into extra help.

The first major lawsuit on the issue was filed in Florida in the late 1970s when African-American students who had failed the state's test said it was racially biased. They also said they weren't given enough notice that they'd have to pass it to graduate. A federal court delayed the graduation requirement until students who had attended racially segregated schools were no longer in school.

''I think states have been pretty thoughtful about how they've put these things in place, and they seem to have met the legal conditions,'' said Kathy Christie of the Denver-based Education Commission of the States, which tracks educational trends.

Massachusetts gives students five chances to pass the test between grades 10 and 12. But lawyers yesterday pointed to high failure rates for the state's black and Latino students, who trail their white and Asian counterparts by wide margins.

About 44 percent of black seniors in the class of 2003 have not passed the English and math portions of the MCAS test after three tries, and 50 percent of Latino students haven't passed. That compares with 13 percent of white students and 17 percent of Asians who have not yet passed. About 45 percent of students with disabilities, 65 percent of limited English speakers, and about 44 percent of vocational students have yet to pass.

According to the DOE, there are 12,000 students in the class of 2003 who haven't passed the test after three chances. But the lawyers filing suit have included an additional 4,000 students who apparently took the exam as sophomores but did not return as juniors the next year.

''We're aware of the fact that the DOE has recently said, `Well, there isn't much of an increase in the dropout rate.' On the other hand, they can't account for something on the order of [thousands] of kids who disappeared out of the class of 2003,'' said Roger Rice, executive director of Multicultural Education, Training, and Advocacy. ''We consider those as being real human beings and real students who were harmed by this.''

Lawyers from the Center for Law and Education and the Lawyers' Committee for Civil Rights Under Law of the Boston Bar Association also are involved in the suit.

Frongillo said one of the suit's central claims is that the MCAS is illegal. He said the exam violates the Education Reform Act, which did not mandate MCAS, although it called for assessments to gauge students' abilities. MCAS was created in the regulations that followed the act.

Board of Education chairman James A. Peyser said last night that under the law state officials had the authority to establish the MCAS test as a graduation requirement. ''I think the overall argument really is predicated on the assumption that this graduation requirement and the application of a graduation exam is somehow harmful to students,'' Peyser said. ''Everything we know about education reform shows exactly the opposite.''

The plaintiffs say the test also violates due process provisions and equal protection provisions of the federal and state constitutions, as well as Section 504 of the Rehabilitation Act, which covers special-needs children. Paul Reville, chairman of the Massachusetts Education Reform Review Commission, which monitors the state's implementation of the 1993 act, said a lawsuit could be helpful to the state's reform effort - and raises questions that are not surprising. ''I believe the state has put forward a heroic effort to create new opportunities to learn for children who heretofore have been poorly served. And there has been a dramatic increase in opportunities to learn,'' Reville said. ''Whether that increase has been sufficient to say that everyone has had a fair opportunity to achieve the standards ... is a reasonable question to look at.''

 

This story ran on page A1 of the Boston Globe on 9/19/2002.
© Copyright 2002 Globe Newspaper Company.