Debra P. v. Turlington

• Decision Date: 04 May 1981
• Docket Number: No. 79-3074,79-3074
• Citation: 644 F.2d 397
• Parties: DEBRA P., a minor by Irene P., her mother and next friend et al., Plaintiffs-Appellees, Cross-Appellants, v. Ralph D. TURLINGTON, individually and as Commissioner of Education et al., Defendants-Appellants, Cross-Appellees. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 397

644 F.2d 397

DEBRA P., a minor by Irene P., her mother and next friend et

al., Plaintiffs-Appellees, Cross-Appellants, v. Ralph D. TURLINGTON, individually and as Commissioner of

Education et al., Defendants-Appellants, Cross-Appellees.

No. 79-3074.

United States Court of Appeals,

Fifth Circuit.

Unit B

May 4, 1981.

W. Crosby Few, Tampa, Fla., James D. Little, Gen. Counsel, Judith A. Brechner, Deputy General Counsel, State Board of Education, Tallahassee, Fla., for defendants-appellants cross-appellees.

Irving Gornstein, Washington, D. C., amicus curiae, U. S. A.

Stephen F. Hanlon, Robert J. Shapiro, Bay Area Legal Services, Inc., Tampa, Fla., Diana Pullin, Cambridge, Mass., Roger L. Rice, Richard Jefferson, Center for Law and Ed., Peter M. Siegel, Miami, Fla., for plaintiffs-appellees, cross-appellants.

David Rubin, Stephen J. Pollak, Richard M. Sharp, Washington, D. C., amicus curiae.

Appeal from the United States District Court for the Middle District of Florida.

Before FAY and VANCE, Circuit Judges and ALLGOOD ^*, District Judge.

FAY, Circuit Judge:

The State of Florida, concerned about the quality of its public educational system, enacted statutory provisions leading to the giving of a competency examination covering certain basic skills. Many students passed the examination but a significant number failed. The failing group included a disparate number of blacks. This class action, brought on their behalf, challenges the right of the state to impose the passing of the examination as a condition precedent to the receipt of a high school diploma. The overriding legal issue of this appeal is whether the State of Florida can constitutionally deprive public school students of their high school diplomas on the basis of an examination which may cover matters not taught through the curriculum. We hold that the State may not constitutionally so deprive its students unless it has submitted proof of the curricular validity of the test. Accordingly, we vacate the judgment of the district court and remand for further findings of fact.

I.

In 1976, the Florida Legislature enacted the Educational Accountability Act of 1976. Laws of Florida 1976, Vol. 1, Ch. 76-223, pp. 489-508. The intent of the legislature was to provide a system of accountability for education in the state and to ensure that each student was afforded similar educational opportunity regardless of geographic location. Fla.Stat.Ann. § 229.55(2)(a) (West 1977). The legislature established three standards for graduation from Florida public schools. First, the students were required to complete a minimum number of credits for graduation. Second, they were required to master certain basic skills. Third, they were required to perform satisfactorily in functional literacy as determined by the State Board of Education. ¹

Each school district was directed to develop procedures for remediation, and a statewide testing program was outlined. Fla.Stat.Ann. § 229.57 (West 1977 & Supp.1980). In 1978, the Act was amended to require passage of a functional literacy examination prior to receipt of a state high school diploma.

At the time of the trial of this lawsuit, the examination, the SSAT II, had been administered three times. The failure statistics showed a greater impact on black students than on white students. In the Fall, 1977 administration, 78% of the black students taking the exam failed one or more sections of the test as compared with 25% of the white students. Of the 4,480 black students taking the test for the second time in Fall, 1978, 74% failed one or both sections. Twenty-five percent of the whites retaking the test failed. On the mathematics section alone, 46% of the blacks retaking the test failed. The results of the third administration in Spring, 1978, which were released during trial, indicated that 60% of the blacks taking the mathematics exam for the third time failed as compared with 36% of the whites. In May, 1979, of the approximately 91,000 high school seniors in Florida public schools, 3,466, or 20.049% of the black students had not passed the test as compared with 1,342, or 1.9% of the white students. ²

Plaintiffs-appellees, Florida high school students, filed this class action in the United States District Court for the Middle District of Florida, challenging the constitutionality of the Florida State Student Assessment Test, Part II (SSAT II) under the due process and equal protection clauses of the Fourteenth Amendment. They also challenged the test under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d (1976) and the Equal Educational Opportunities Act, 20 U.S.C. § 1703 (1976). Plaintiffs were certified in three classes:

Class A all present and future twelfth grade public school students in the State of Florida who have failed or hereafter fail the SSAT II

Class B all present and future twelfth grade black public school students in the State of Florida who have failed or who hereafter fail the SSAT II

Class C all present and future twelfth grade black public school students in Hillsborough County, Florida, who have failed or hereafter fail the SSAT II

Class A, B, and C claimed that appellants ³ designed and implemented a testing Classes B and C, the black students, claimed that the SSAT II is a device for resegregating the Florida public schools in violation of the Fourteenth Amendment, 42 U.S.C. § 2000d, and 20 U.S.C. § 1703 because those failing the test are placed in remedial classes which tend to contain more blacks than whites. Plaintiffs sought declaratory and injunctive relief.

program which is racially biased and violates the Equal Protection Clause of the Fourteenth Amendment. These three classes also claimed that appellants violated the Fourteenth Amendment in instituting a program denying diplomas without sufficient notice or time to prepare for the exam.

The District Court, Debra P. v. Turlington, 474 F.Supp. 244 (M.D.Fla.1979) found that Fla.Stat.Ann. § 232.246(1)(b) ⁴ as applied in the present context, violated the equal protection clause of the United States Constitution, Title VI of the Civil Rights Act of 1964, and the Equal Educational Opportunities Act as to plaintiffs in classes B and C. It held that section 232.246(1)(b) (West Supp.1981) violated the due process clause of the United States Constitution as to plaintiffs in classes A, B, and C. Defendants-appellants were enjoined from the use of the test as a requirement for receipt of diplomas until the 1982-1983 school year. The court found that the use of the examination for remediation violated neither the Constitution nor statutes.

On appeal, the appellants contend that the court erred in finding that the use of the test violates due process because there was adequate notice and no property right was involved. They contend that the graduation requirement is not a punishment, does not deprive students of a "liberty" interest and does not violate the equal protection clause. Appellants contend that the court erred in finding 20 U.S.C. § 1701 and 42 U.S.C. § 2000d to be applicable. In their cross-appeal, plaintiffs-appellees contend that the district court erred in limiting the period of the injunction to four years and in upholding the validity of the examination.

We find, based upon stipulated facts, that because the state had not made any effort to make certain whether the test covered material actually studied in the classrooms of the state and because the record is insufficient in proof on that issue, the case must be remanded for further findings. If the test covers material not taught the students, it is unfair and violates the Equal Protection and Due Process clauses of the United States Constitution.

II.

At the outset, we wish to stress that neither the district court nor we are in a position to determine educational policy in the State of Florida. The state has determined that minimum standards must be met and that the quality of education must be improved. We have nothing but praise for these efforts. ⁵ The state's plenary powers over education come from the powers reserved to the states through the Tenth Amendment, and usually they are defined in the state constitution. ⁶ As long as it The United States courts have interfered with state educational directives only when necessary to protect freedoms and privileges guaranteed by the United States Constitution. In 1899, for example, in the case of Cumming v. Board of Education, 175 U.S. 528, 20 S.Ct. 197, 44 L.Ed. 262, the Court upheld the decision of a local board to close a black school while keeping a white school open. Finding that the decision was based on economic reasons, the Court said:

does so in a manner consistent with the mandates of the United States Constitution, a state may determine the length, manner, and content of any education it provides.

(T)he education of the people in schools maintained by state taxation is a matter belonging to the respective States, and any interference on the part of Federal authority with the management of such schools cannot be justified except in the case of a clear and unmistakable disregard of the rights secured by the supreme law of the land.

175 U.S. at 545, 20 S.Ct. at 201, 44 L.Ed. at 266. While the outcome of the Cumming case might be questioned in this post Brown era, it must be remembered that it was not until just before the First World War that compulsory school attendance laws were in force in all states. ⁷ Public education was virtually unknown at the time of the adoption of the Constitution. In 1647 Colonial Massachusetts directed its towns to establish schools, and in 1749, Franklin proposed the Philadelphia academy. Until after the turn of the century, education was primarily private and usually sectarian. Lemon v. Kurtzman, 403 U.S. 602, 645-47, 91 S.Ct. 2105, 2127-28, 29 L.Ed.2d 745, 774-75 (1976). Once part of the government, however, education became a significant governmental responsibility....