Debra P. by Irene P. v. Turlington

• Decision Date: 27 April 1984
• Docket Number: No. 83-3326,83-3326
• Citation: 730 F.2d 1405
• Parties: 16 Ed. Law Rep. 1120, 15 Fed. R. Evid. Serv. 1175 DEBRA P., a minor, by IRENE P., her mother and next friend, et al., Plaintiffs- Appellants, v. Ralph D. TURLINGTON, Individually and as Commissioner of Education, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1405

730 F.2d 1405

16 Ed. Law Rep. 1120, 15 Fed. R. Evid. Serv. 1175

DEBRA P., a minor, by IRENE P., her mother and next friend et al., Plaintiffs- Appellants, v. Ralph D. TURLINGTON, Individually and as Commissioner of Education, et al., Defendants-Appellees.

No. 83-3326.

United States Court of Appeals Eleventh Circuit.

April 27, 1984.

Stephen F. Hanlon, Tampa, Fla., for plaintiffs-appellants.

William R. Dorsey, Jr., Deputy Gen. Counsel, State Bd. of Educ., Tallahassee, Fla., for defendants-appellees.

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

Before JOHNSON and ANDERSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.

R. LANIER ANDERSON, III, Circuit Judge:

A class consisting of Florida high school seniors who have failed a state-wide competency examination appeal findings entered by the district court on remand from Debra P. v. Turlington, 644 F.2d 397 (5th Cir.1981) (Unit B). We affirm the decision of the district court.

FACTS

In 1978 the Florida legislature approved an amendment to the Educational Accountability Act of 1976, Fla.Stat. Sec. 229.55 et seq., requiring Florida public school students to pass a functional literacy examination, the SSAT-II, in order to receive a state high school diploma. Fla.Stat. Sec. 232.246(1)(b) (1978). Shortly thereafter, present and future twelth grade students who had failed or would fail the test filed suit, challenging the constitutionality of using the test for diploma denials under the due process and equal protection clauses of the Fourteenth Amendment. They also challenged this use of the SSAT-II under Title VI of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000d et seq. (1976), and the Equal Educational Opportunities Act ("EEOA"), 20 U.S.C. Sec. 1703 (1976). ¹ Central to their challenge was the argument that the diploma sanction had an unconstitutionally disproportionate impact on blacks. At the time of the 1979 hearing, after three test administrations, the failure rate of black students was approximately 10 times greater than that of white students. ²

The district court held that use of the SSAT-II for diploma denials violated the due process and equal protection clauses, Title VI, and the EEOA. Debra P. v. Turlington, 474 F.Supp. 244 (M.D.Fla.1979). The court enjoined the test's use as a diploma sanction until the 1982-83 school year, but allowed the state to use the test in the interim for remediation, which the court found violated neither the Constitution nor statutes. The district court found that the SSAT-II's content was valid, id. at 261, which would allow the state to use it as a diploma sanction after 1982.

The district court issued the four-year injunction for two reasons. First, the court found that the examination violated the equal protection clause, Title VI, and the EEOA by perpetuating past discrimination against black students who had attended segregated schools for the first four years of their education. 474 F.Supp. at 250-57. The students in the high school class of 1983 would be the first to have attended physically integrated schools for all 12 years of their educational careers; thus, they would be the first students against whom the diploma sanction could be applied. Second, the court held that the test's implementation schedule provided insufficient notice, in violation of the due process clause. Id. at 267. The court determined that because instruction of the skills necessary to complete the SSAT-II is a cumulative and time consuming process, id. at 264, four to six years should intervene between announcement of the test and implementation of the diploma sanction. Id. at 267. The class of 1983 would be the first with six years notice of the sanction and adequate instruction to take the test.

On appeal, the former Fifth Circuit Court of Appeals upheld the district court's injunction, but remanded for further findings on two issues that would affect use of the SSAT-II as a diploma sanction in 1983 and thereafter. First, the circuit court required the state to demonstrate on remand that the competency exam was "a fair test of that which is taught in [Florida's] classrooms." Debra P. v. Turlington, 644 F.2d 397, 408 (5th Cir.1981) (Unit B). The circuit court declared clearly erroneous the district court's holding that the test's content was valid; the record was "simply insufficient in proof that the test administered measures what was actually taught in the schools of Florida." Id. at 405. Without such proof, use of the test as a diploma sanction would violate the due process and equal protection clauses. Id. at 404, 406. Second, the circuit court held that if the state was able to prove that the test tested what was "actually taught," the state would then have to demonstrate either that the test's racially discriminatory impact was not due to the present effects of past intentional discrimination, or that the test's use as a diploma sanction would remedy those effects. Id. at 407-08.

On remand, the district court tried the two issues separately. After trial on the first issue, the district court concluded that the state had met its burden of proving by a preponderance of the evidence that the competency examination is "instructionally valid," i.e., a fair test of that which is taught in Florida's schools. Debra P. v. Turlington, 564 F.Supp. 177, 186 (M.D.Fla.1983). After an evidentiary hearing on the second issue, the court found that although vestiges of past segregation still exist to some extent, and although the test still has a racially discriminatory impact, there is no causal link between the disproportionate failure rate of black students and those present effects of past segregation. Id. at 188. The court found, moreover, that even if there were a causal connection, the defendants had carried their burden of showing that the diploma sanction would remedy those effects. Id. The propriety of these findings forms the basis for this appeal. Our opinion will refer more particularly to facts adduced at the hearings in the district court on remand.

I. INSTRUCTIONAL VALIDITY

Following remand, the Florida Department of Education commissioned IOX Assessment Associates, a private consulting firm, to design a study to determine whether Florida's school districts teach the skills tested by the competency examination. IOX designed a four-part study. The first part of the study consisted of a teacher survey, which was distributed to all of Florida's 65,000 teachers. Forty-seven thousand teachers responded to the survey. The survey asked whether the teacher had provided instruction during 1981-82 relating to the skills tested on the SSAT-II and if so, whether that instruction had been sufficient for a student to master the skills.

The second part of the study was a district survey completed by all of Florida's 67 school districts and 4 university laboratory schools. The survey requested the districts (1) to estimate in which of grades 2-12 students were taught the test skills and in which grade a majority of students would have mastered the skills, (2) to describe any major variations in instruction among schools in the district, (3) to describe any remedial programs specifically related to mastery of test skills, (4) to describe staff development activities related to teaching test skills, (5) to list instructional materials specifically used to teach test skills, and (6) to identify any program designed specifically to help students pass the test. The district survey instructed respondents to consider only the 1981-82 school year.

The third part of the study was a series of site visits to verify the accuracy of the district reports. Each district was visited by at least one visitation team. The visitation teams were composed of one program auditor from the Department of Education and two administrators from school districts other than the one visited. After two days of interviewing teachers and reviewing instructional materials, a team would prepare a report of findings and impressions about the accuracy of the district report.

The fourth portion of the study consisted of surveys given in a randomly selected school within each school district to students in an English or Social Studies class selected at random within the school by the visitation team. The survey asked the students whether they had been taught the skills tested by the competency exam at any point during their educational careers. In all, thirty-two hundred students completed this survey.

At trial, the state introduced the study results, over the objection of the appellants that the results constituted inadmissible hearsay. The state also presented three expert witnesses who concluded on the basis of the data from the IOX study that Florida was teaching what it was testing. One expert was Dr. Popham, designer of the study, who relied in large part on a "Mastery Exposure Index" prepared by the Department of Education. The Index is a distillation of the survey data and purportedly demonstrates that each student is given an average of 2.7 opportunities over the length of his educational career to master test skills. Dr. Popham testified that one such opportunity would be enough to make the competency exam "instructionally valid"--a fair test of that which is taught.

All three experts for the state testified that their conclusions of instructional validity were bolstered by the state's extensive remedial efforts to help students who initially fail the test pass it before graduation. ³

Two experts testified on behalf of the appellants that the IOX study did not prove instructional validity. One expert opined that the survey was not a reliable indication of what had been taught to the Class of 1983 because it focused only on the 1981-82 school year, rather than the twelth graders' entire school careers. The other expert testified that the survey demonstrated that in school districts with high rates of...