High-Stakes Tests Spawn High- Stakes Lawsuits

Teachers fired, sued for revealing test questions, while a testing company agrees to pay $12 million for faulty scoring.

James Hope just wanted to warn parents that the new high-stakes test was unfair. But when this NEA member and Teacher of the Year posted six test questions on a parents' website, along with his criticisms that the test covered material that had not been taught, his school district charged him with violating the state Code of Ethics for Educators. The Georgia Professional Standards Commission (PSC) agreed and voted last year to suspend Hope's teaching license.

But with the help of the Georgia Association of Educators, Hope appealed the proposed suspension. Last December, Fulton County Judge Gail Tusan exonerated him of any wrongdoing.

The court ruled that the ethics code only prohibits teachers from helping students cheat by providing them with test questions prior to administering the test. Hope didn't do that, the court said.

After a three-year odyssey, the case ended in January, when the Georgia Court of Appeals refused to overturn the trial court's decision. Hope is still teaching fourth grade in Gwinnett County.

Some other recent challenges to flaws in the high- stakes testing process:

• Chicago teacher George Schmidt hasn't fared as well as James Hope. The Chicago Public Schools (CPS) fired and then sued him for $1.4 million for publishing parts of the Chicago Academic Standards Examinations (CASE) in 1999.
  Schmidt had criticized the CASE tests for sloppy wording and inaccurate answers.

  Last December, a federal district court ruled that Schmidt's publication violated the CPS's copyright to the tests and enjoined him from publishing any copyrighted school district materials. In February, CPS stipulated that Schmidt owed only $500 for the copyright violation. Nevertheless, Schmidt has appealed the case to the federal circuit court.

  Schmidt's termination for insubordination was upheld by a state board hearing officer, however, and his appeal to state court is still pending.

• Meanwhile, a group of Chicago teachers threatened last fall to boycott the CASE tests, calling them "flawed and invalid." CPS announced last December that it had decided that the CASE tests would not be administered in January as scheduled, but that the district would develop new tests better aligned with state standards.

• In Minnesota, a testing company agreed last November to pay up to $12 million to settle a class action lawsuit alleging that it wrongly scored thousands of the Minnesota Basic Skills Tests in 2000. The National Computer Systems falsely notified some 8,000 students that they had failed the high-stakes test.
  Under the settlement, students denied the opportunity to participate in graduation ceremonies because of the company's error can recover $16,000, while students who had to attend summer school are eligible for up to $1,000. The state of Minnesota has since switched testing companies.

• High-stakes tests are being challenged in two other states. Last February, a Florida organization filed a complaint with the U.S. Department of Education charging that the state's new mandatory graduation exam violates the rights of students with disabilities because they are denied adequate accommodations for taking the test.

• And in Massachusetts last September, advocates filed a class action lawsuit claiming that the state's mandatory graduation exam discriminates against Black and Hispanic students, as well as students with disabilities and limited English proficiency.

--Michael D. Simpson
NEA Office of General Counsel

New Federal Rules Support School Prayer

The U.S. Department of Education (ED) recently issued a new set of federal guidelines requiring school districts to allow students and teachers to engage in religious activities at school, including prayer.

Districts that violate the new rules--or fail to promise in writing that they will comply with the guidelines--risk the loss of federal education funds.

Development of the ED guidance, which was released on February 7, 2003, was mandated by the Elementary and Secondary Education Act (ESEA), also known as the No Child Left Behind Act.

In announcing the new rules, ED Secretary Rod Paige warned that "public schools should not be hostile to the religious rights of their students and their families."

Among other things, the guidelines state that "students may read their Bibles or other scriptures, say grace before meals, and pray or study religious materials with fellow students during recess, the lunch hour or other noninstructional time..."

The guidance cautions teachers not to discriminate against students who "express their beliefs about religion in homework, artwork, and other written and oral assignments." It also advises that, in certain circumstances, schools may have to grant parental requests to "excus[e] students from class" for religious reasons.

The guidance counsels that teachers and other school employees, "when acting in their official capacities as representatives of the state," cannot encourage or participate in prayer activities with students. Before school or during lunch, however, school employees are free to meet with other employees for prayer or Bible study.

The guidelines also address student religious clubs, moments of silence, graduation prayer, and baccalaureate ceremonies.

Barry Lynn, executive director of Americans United for Separation of Church and State, charges that ED is dispensing faulty legal advice. The new rules, Lynn claims, "are based on a biased reading of the law [and are] intended to advance inappropriate religious activities in public schools."

The guidance is posted on ED's Web site.

--M.D.S.