HSLDA Declares War Against Testing Abuses
In this issue you will read about several new cases challenging the legality of certain testing requirements. These cases are part of a long-range strategy to prevent achievement testing from being used as an improper government control of home education.
Standardized achievement tests were never designed to determine the adequacy of an individual child’s education. Norm-referenced achievement tests were primarily intended to judge the achievement of groups. For example, these tests would be suitable for comparing the achievement of 11,000 home school children to 11,000 public school children.
In a limited sense, achievement tests can also serve as a diagnostic tool for analyzing broad indicators of an individual student’s needs. But the idea of a child “flunking” a standardized achievement test is as absurd as a child flunking a blood test. Just like a blood test, an achievement test may be able to tell you something about a child’s condition, but there are many other factors which would need to be ascertained before you can reach any determinative conclusions.
Washington State has a very good law regarding standardized achievement tests. It requires every child to be tested, but the testing is done privately and the results are sent only to the parents. There is no legal compulsion to send the scores to the government.
This law ensures that every child gets an analysis, but it also insures that no parent or child is bullied by the prospect of a “low” test score. This aspect of Washington law rests on the bedrock principle that parents want to do what is right for their children. If testing indicates a true weakness (which sometimes, but not always, is the reason for low scores) the parents will be motivated by their love and concern for their children to seek more specific evaluation and take the corrective action that is necessary. Parents who are willing to do the hard work of home schooling are entitled to a double presumption that they want what is best for their children.
Some states have absolutely absurd testing laws. I live in one of those states. In Virginia if a child attains a composite score at the 40th percentile or lower, he cannot be home schooled anymore. Period. (While there is a way around this, it is expensive, time-consuming, unfair, and requires discretionary approval of local school superintendents.)
Let's compare this requirement with public school levels of achievement. Virginia’s public schools do not report composite test scores. Rather, the scores are reported for each subject area. Tests are required in first, fourth, eighth, and eleventh grades. Sixteen school districts report average test scores for fourth grade reading that fall at or below the 40th percentile. In other words half the students in these counties would be precluded from continuing if they had achieved these same scores in a home school. In six school districts the average scores fall below this standard in both reading and math. In every school district in the state there are a number of students whose composite score falls below the 40th percentile, but they (rightfully) continue to promote these students from grade to grade.
The Virginia state superintendent’s report of test scores concludes: “Test scores are not precise measurements; therefore, differences of several percentile points may not be significant.”
It is also critical to note that the testing profession considers scores between the 23rd percentile and the 77th percentile as average scores. Scores above the 77th percentile are above average; scores below the 23rd percentile are below average. Thus, there are dozens of home schooled students who achieve average scores who are not eligible to continue home schooling.
While we would like to eliminate all use of test scores as a barrier to continued home schooling, an interim step is to ensure that no cut score is established higher than the 22nd percentile-and there should always be alternative means of demonstrating progress.
Last year we succeeded in attacking the testing requirement South Carolina imposed on home-schooling parents who did not have a bachelor's degree. So far this year we have filed testing challenges in West Virginia (which also has a 40th percentile requirement) and North Dakota. We anticipate a testing challenge in Virginia as well. Looking ahead we also expect to encounter the need to challenge Arkansas’s requirement that students achieve not less than 8 months behind grade level. Grade equivalency is an extremely imprecise measurement. One or two questions can dramatically raise or lower a child’s grade equivalency on subtest scores. (And according to some officials’ interpretations subtest scores alone can keep high school students from continuing home schooling.)
I know that this may seem like a lot of technical mumbo jumbo, but it is important for us as attorneys to master this subject. Unfortunately, courts are not very receptive these days to constitutional doctrines. Constitutional attacks coupled with academically precise assaults on testing excesses appear to have the best chance for success. Moreover, members of the public (including judges) are enamored with the idea of testing as a panacea for the educational problems in the public schools. We have to be able to strip away the mystery of testing and show the courts that even experts in testing agree that the measurements being crammed down the throats of home schoolers are unfair and inaccurate.
Testing will be one of the most important battles of the 1990s. Stay tuned!
Michael P. Farris