RANKINS v. STATE BD. OF ELEM. & SEC. EDUC.
637 So.2d 548 (1994)
Tarchia RANKINS, Chad Yancy, Sonovia Hicks, Sekari Williams, and Kawanda Beauchamp
v.
LOUISIANA STATE BOARD OF ELEMENTARY AND SECONDARY EDUCATION.
No. 93 CA 1879.
Court of Appeal of Louisiana, First Circuit.
March 17, 1994.
Ernest Johnson and Ronald Johnson, Baton Rouge, for plaintiffs-appellees Tarchia Rankins, et al.
Roy A. Mongrue, Jr. and Margo Fleet, Baton Rouge, for defendant-appellant Bd. of Elementary and Secondary Education.
Thomas A. Rayer, Denechaud and Denechaud, New Orleans, for La. Federation, Citizens for Educational Freedom, Amicus Curiae.
Before LOTTINGER, C.J., and CARTER, CRAIN, LeBLANC and WHIPPLE, JJ.
LOTTINGER, Chief Judge.
The subject of this litigation is Louisiana's graduation exit examination (GEE) which has been a requirement for obtaining a state high school diploma since 1989. The five plaintiffs in this case, all Louisiana public school students, failed to pass the GEE before the end of their senior year in high school. They have all accumulated the required 23 Carnegie units1 necessary for graduation but, because of their failure to pass the GEE, they have not received their respective diplomas. Plaintiffs filed this suit seeking the award of their high school diplomas and a declaration as to the invalidity of the Board of Elementary and Secondary Education's (BESE) GEE policy. Following a hearing, the trial judge issued a preliminary injunction prohibiting BESE
from withholding the plaintiffs' state high school diplomas despite their failure of the GEE. In his written reasons for judgment, the judge stated that the GEE has been unconstitutionally administered in violation of the equal protection clause of the United States and Louisiana Constitutions. From this judgment, BESE appeals. The central issues raised by this appeal are:
(1) whether BESE has authority to establish the GEE as a graduation requirement; and
(2) whether the GEE is being administered in violation of the equal protection clause.
BESE'S AUTHORITY
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.