RANKINS v. STATE BD. OF ELEM. & SEC. EDUC.
637 So.2d 548 (1994)
Court of Appeal of Louisiana, First Circuit.
March 17, 1994.
As discussed above, the Louisiana and U.S. Constitutions prohibit BESE from dictating the contents of the curriculum in non-public schools and in home study programs. Thus, requiring these students to pass a test covering materials that were not necessarily taught, clearly violates the rule of Debra P. Additionally, because Debra P. mandates that exit exams be criterion referenced, persons who obtain a GED cannot be required to pass the GEE which is based on the curriculum taught in Louisiana's public schools.
In sum, because BESE cannot mandate the content of the curriculum taught in non-public schools or in home study programs and because Debra P. requires that exit exams be criterion referenced, BESE cannot require that non-public students, home study students, or persons obtaining a GED pass the GEE prior to receiving a state diploma.
C. The Rational Relationship Standard
In analyzing equal protection claims, the courts have established three standards of review. Sibley v. Board of Supervisors of Louisiana State University,477 So.2d 1094, 1107 (La.1985) (on rehearing). When legislative enactments classify persons by race or religious beliefs, the strict scrutiny standard is applied. For classifications based on birth, age, sex, culture, physical condition, or political ideas or affiliations, an intermediate standard of review is appropriate. All other classifications are analyzed under the rational relationship standard. In the present case, the classification of public versus non-public school students10
does not involve any of the suspect or intermediate classifications recognized under the Equal Protection analysis. Thus, the rational relationship standard is the proper standard of review. Under this standard the challenger must establish that the legislative classification at issue is not rationally related to any legitimate state purpose. Pierre v. Administrator, Louisiana Office of Employment Security,553 So.2d 442, 447 (La.1989). In applying the rational relationship standard in Debra P., the court held that the exit exam bears a rational relation to Florida's valid interest of insuring the functional literacy of its graduating students. Debra P., 644 F.2d at 406. In the present case, the state of Louisiana has a valid interest of insuring the minimum competency of persons obtaining a state diploma. The GEE bears a rational relationship to this goal by insuring that students who obtain a state diploma have reached the required level of competency. We also note that BESE's policies regarding remediation and retesting further the state's interest by providing failing students an opportunity to achieve the required level of competency.
Plaintiffs suggest that because approved non-public schools receive state funding, the state also has an interest in the quality of education in those non-public schools. The United States Supreme Court has recognized that limited financial assistance to non-public school students is permissible provided it does not create an excessive government entanglement with the non-public schools. Lemon v. Kurtzman,403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). Limited funding to non-public school students does not authorize the state to impose curriculum or graduation requirements on non-public school students. Any attempt to establish the GEE requirement in a non-public school would be an "excessive entanglement" and thus, violate the First Amendment of the United States Constitution.
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.