Little headway in MCAS suit
Plaintiffs say exam is discriminatory
SPRINGFIELD - In the jargon of court documents, he is ``Student 8,'' plucked from the thousands of Massachusetts teenagers who did not graduate from high school this June because they failed the state's MCAS exam. In him, lawyers saw the potential for a discrimination case: He is black, was in special education, and scrapped plans to attend a technical college in Georgia because he still does not have his high school diploma.
But sitting at his dining-room table one morning last week, William E. Lowe Jr. had much more immediate concerns than his ongoing lawsuit challenging the use of MCAS as a graduation requirement. The 18-year-old former high school football player was explaining why he has applied for a job at a local Blockbuster Video store instead of getting ready to study digital design.
``I still want my high school diploma,'' said Lowe, whose senior class portrait and football trophies line a shelf in his tidy, three-family home. ``I went [to school] for 12 years.''
But some legal observers doubt that Lowe will prevail in the lawsuit that he and his mother joined late last year. As the case approaches its one-year anniversary, lawyers for Lowe and nine other plaintiffs have only suffered defeats.
Both federal and state judges have rejected their requests for preliminary injunctions to block the state from using MCAS to deny diplomas to the class of 2003, the first required to pass the test to graduate. Originally filed in US District Court in Springfield in September 2002, the suit is now in Suffolk Superior Court in Boston after a federal judge rebuked the plaintiffs' lawyers for bringing matters of state law to him.
In April, Suffolk Superior Court Judge Margot Botsford denied the state injunction request, commenting in her written opinion: ``[T]he plaintiffs have not shown a likelihood of succeeding in their challenge.''
Still, other legal observers say the case could be the first major suit in the era of high-stakes testing to succeed, based on claims that the 1993 Education Reform Act called for ``multiple'' measures of student performance, not a single standardized test.
``There's a fairly strong argument in the claim that MCAS does not comport with the requirement of the statute that there be a system of tests, whereas this is really a one-shot test,'' said Peter Enrich, a professor at Northeastern University School of Law.
About 4,200 students - or 7 percent of the class of 2003 - have yet to pass the required Massachusetts Comprehensive Assessment System tests, which contain multiple-choice, short-answer, and essay questions in 10th-grade English and math.
The lawsuit charges that the MCAS discriminates against minorities, special-education students, and limited-English students, whom it says have not been adequately prepared for the exam. The suit also alleges that many in the class of 2003 were not taught the material on the test.
Attorney General Thomas F. Reilly's office, which is defending the state Department of Education, declined to comment on the case. The state has argued that by allowing students several opportunities to take the test, plus offering the chance for waivers to students who come close to passing, it has developed a fair process.
For Lowe, the MCAS test has been a burden since he first tackled it as a 10th-grader in spring 2001. Although he has earned mostly B's and C's at the High School of Commerce in Springfield, he has a speech disorder that affects his reading and writing and has prevented him from doing well on MCAS.
Lowe has taken the exam six times without passing either section, though he has come within just two points of passing each. The Department of Education has rejected his first attempt to win a waiver of his failing scores.
His lawyer, Kathleen Boundy, says he would have had a better chance at passing had he always been given the accommodations required under his special-education plan, such as being tested with a small group of students. Sometimes he did not get the speech therapy he needed during the year, as well, she said.
``This is a youngster who was not given the accommodations he needed to level the playing field,'' Boundy said. ``We also are seeing the issue of a youngster who could have and would have benefitted from the multiple measures [of testing], which we argue are required.''
Lowe expects to hear the results of his May and July retests - and another appeal attempt - later this year. If it turns out he passed, or if he succeeds in winning a waiver, Lowe would drop out of the lawsuit, just like the six students who were part of the original case last fall. That could bolster the state's contention that students can meet the test's standards over time, legal specialists said.
But Diana C. Pullin, a professor of education and public policy at Boston College, said the case remains winnable. The current political climate, in which many state leaders support the MCAS test, is a tough hurdle for the plaintiffs, she said. But a trial has not started, so the evidence aired to date is a fraction of the complaint. One crucial allegation, buried in court filings, is that state education officials received early reports that minorities would score lower than whites but did not do enough to help them improve. ``The facts that are out there about how the system was implemented ... tilt at this time overwhelmingly in favor of the plaintiffs,'' Pullin said.
History is not on the plaintiffs' side, however. While lawsuits in California and Oregon have forced the states to alter their testing systems to accommodate disabled students, such as by providing them with calculators or scribes, the last case that ended victoriously for those seeking changes to graduation tests for all students was in Florida 25 years ago.
``The chances of any court overturning a state test like MCAS are very low,'' said Boston attorney Miriam Kurtzig Freedman, who represents school districts and is author of ``Testing Students ... And the Law.'' ``The best they can do is tell the state to tinker with parts of it. But the bottom line is that states are entitled and in fact have a responsibility to establish standards. And the things that go against the students are the high number of passes and the fact that we have remediation'' through tutoring programs.
As for William Lowe, he vows he will pass the exam, one way or another, saying he wants to set an example for his two younger brothers. Urged by his mother, he began applying to a local community college in case he does pass. He spent the first part of the summer as a camp counselor.
As his mother has watched the lawsuit wind its way through court, Darla Lowe, a home health-care aide, realized that the furor over the MCAS test was bigger than her son's story.
``In the beginning, it was about my son getting his high school diploma,'' Darla Lowe said. ``But now it's the principle of it. Someone should be held accountable and not blame it on the kids. I don't think the MCAS is bad. I think it's a good thing ... But they need to give the help that kids need to pass.''
