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RANKINS v. STATE BD. OF ELEM. & SEC. EDUC.
637 So.2d 548 (1994)
Court of Appeal of Louisiana, First Circuit.
March 17, 1994.
Id. at 214, 92 S.Ct. at 1532. Under these constitutional proscriptions, BESE cannot dictate the curriculum or set exit exam requirements in non-public schools without infringing upon the rights of parents who choose to send their children to non-public schools or who choose religious over public education. B. The Holdings of Debra P. The seminal case in the area of exit exams arose under similar circumstances in Florida. Debra P. v. Turlington,644 F.2d 397 (5th Cir.1981). In Debra P. a group of Florida high school students challenged the validity of the Florida State Student Assessment Test which was a condition for receipt of a high school diploma.4 The Fifth Circuit held that there was no equal protection violation merely because the exit exam was applied only to public school students. Id. at 406. Citing Ambach v. Norwich,441 U.S. 68, 77, 99 S.Ct. 1589, 1595, n. 8, 60 L.Ed.2d 49, 57 (1979), the court stated, "the state need not correct all the problems of education in one fell swoop and it has a stronger interest in those for which it pays the cost." Id. at 406-07. A second holding in the Debra P. case is that an exit exam cannot be made a requirement for graduation unless it is specifically
tied to the curriculum taught in the schools.5Id. at 406. This is known as a criterion-referenced examination. The requirement that exit exams be criterion referenced is necessary to avoid equal protection problems which may arise if the test attempts to gauge general knowledge and is consequently biased because of social and noneducational factors. According to Debra P., the state may impose an exit exam requirement on students without violating equal protection, provided the exam is specifically tied to the curriculum. The GEE is a five part, criterion referenced exam which tests skills from Louisiana's mandated public school curriculum. The English Language Arts, Written Composition, and Mathematics portions of the GEE are first administered in the 10th grade. Students who fail any of these portions may retake them in the 11th and 12th grades. The Science and Social Studies portions are first given in the 11th grade and may be retaken in the 12th grade.6 Remediation is offered for students who have failed any section of the GEE. Remediation and testing remain available to students after completion of their high school curriculum. The GEE requirement applies to public high school students with exceptions for home study students7, persons who obtain a GED8, and non-public school students9. These limited exceptions are not arbitrary, but rather are mandated by the holding of Debra P. which prohibits the state from requiring passage of an exit exam unless the exam tests the content of subjects actually taught in the schools.
1. Prior to implementation of the GEE, the only academic requirement for high school graduation was the successful completion of 23 Carnegie units. The required units presently consist of 4 units of English, 3 units of mathematics, 3 units of science, 3 units of social studies, 2 units of health and physical education, ½ unit of computer literacy, and 7½ units of electives. Louisiana Department of Education, Louisiana Handbook for School Administrators (revised November 1992). 2. In answering a certified question from the United States Fifth Circuit Court of Appeals, the Aguillard court discussed the meaning of the phrase "as provided by law" contained in La. Const. art. VIII § 3(A). The court concluded that according to this phrase, "the Board shall supervise and control the public elementary and secondary schools as provided `by the legislature' or `by statute.'" Id. at 708, see also Board of Elementary and Secondary Education v. Nix,347 So.2d 147, (La.1977) (The Louisiana Supreme Court interpreted La. Const. art. VIII § 3(A) to mean that although the legislature shall provide by law for the supervision, control, and budgetary power of the board, the legislature cannot regulate and limit BESE's constitutional grant of power to supervise, control, and budget education.) 3. House Concurrent Resolution 204 of 1989 provides some evidence of the legislature's intent regarding the GEE. In April of 1989, BESE adopted a resolution requiring all Louisiana students, public and non-public, to pass the GEE before obtaining a state high school diploma. In response to this resolution, the legislature adopted House Concurrent Resolution 204 which expresses the legislature's intent to limit the applicability of the GEE to public school students. Following this action by the legislature, BESE adopted a new policy which stated that the GEE would be mandatory for public students and optional for non-public students.
This resolution is significant in that the legislature did not disapprove of BESE's plans to make the GEE a requirement for Louisiana's public school students. 4. Plaintiffs attempt to distinguish the Debra P. case from the present case by noting that "the Louisiana State Legislature has expressed no interest in the implementation of a graduation exit exam which is different from the State of Florida." In light of our conclusions in the first portion of this opinion, this distinction does not affect the application of the Debra P. holdings to the facts of this case. 5. The Fifth Circuit remanded the case to hear evidence on whether Florida's exit exam tested materials actually taught in Florida's public schools and to determine whether the exam had a racially discriminatory impact. Id. at 408. Following the district court's decision on remand, the case was appealed to the Eleventh Circuit Court of Appeals. Debra P. v. Turlington,730 F.2d 1405 (11th Cir.1984). The Eleventh Circuit affirmed the district court's findings that the Florida students were taught tested skills, that the exam did not discriminate, and that the exam would help remedy the vestiges of past segregation. Id. at 1416-17. 6. Students are afforded four opportunities to take and pass the Science and Social Studies portions of the exam and they have six opportunities to take and pass the other sections. 7. Home study students who return to the public school system in the eleventh grade are not required to take three of the five parts of the GEE and students returning in the twelfth grade are not required to take any part of the exam. 8. Persons obtaining a GED are not required to take any part of the GEE. 9. BESE maintains a policy of optional participation for approved non-public schools. 10. There is no evidence in the record which attempts to set forth the number of non-parochial schools in Louisiana vis a vis parochial schools. Therefore, under the equal protection analysis, the students are classified as public versus non-public.
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