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January 7, 2003

Letter to North Dakota State Superintendent of Education

January 7, 2003

Dr. Wayne G. Sanstead
State Superintendent of Education
North Dakota Department of Public Instruction
600 East Boulevard Avenue, Dept. 201
Bismarck, ND 58505-0440

Re: Testing of Home Education Students

Dear Dr. Sanstead:

Thank you for your letter of December 19, 2002, responding to my letter to you of December 6, 2002, and enclosing a proposed bill which would impose state testing on students receiving home instruction. We have since obtained a copy of this bill pre-filed as House Bill 1182. After reviewing these materials as well as the statutory provisions of the No Child Left Behind Act of 2001, there is no question that enactment of your proposed legislation would violate federal law, thereby jeopardizing all federal educational funding being received by North Dakota. Additionally, our research indicates that testing of home school students for state content standards based upon a public school curriculum is unconstitutional.

Your letter states that the basis for requiring students receiving home instruction to participate in state assessments is found in Section 15.1-23-09 of the North Dakota Century Code (NDCC). In fact, this section says nothing about state assessments but requires each child receiving home education to take a standardized achievement test at certain grade levels. Standardized achievement tests are used by local school districts as part of the state assessments, but this does not require a child receiving home education to take any test other than a standardized achievement test. In other words, home school students are not required by Section 15.1-23-09 of the NDCC to take the State Assessment Supplement which is not a standardized achievement test. Therefore, any effort to impose testing for state content standards on homeschool students would require an amendment to Section 15.1-23-09 and the other home education statutes of the NDCC as House Bill 1182 would do.

Unfortunately, the legislation you have proposed constitutes a direct violation of the No Child Left Behind Act of 2001, now codified as Chapter 70 of Title 20 of the United States Code Annotated. 20 USCA 7886(b) states as follows:

Nothing in this chapter shall be construed to affect a home school, whether or not a home school is treated as a home school or a private school under State law, nor shall any student schooled at home be required to participate in any assessment referenced in this chapter.

The current provisions of Section 15.1-21-08 of the NDCC and your proposed amendment to this statute in Senate Bill 2065 are precisely the assessments referenced in 20 USCA 6311(b)(3)(C) of the No Child Left Behind Act of 2001. House Bill 1182 would require students in home education to take these assessments.

20 USCA 6311(b)(3)(C)(v)(I) requires testing in mathematics and reading or language arts at least once during grades 3 through 5, grades 6 through 9, and grades 10 through 12. Not coincidentally, Section 15.1-21-08 of the NDCC requires the same testing. 20 USCA 6311(b)(3)(C)(v)(II) requires testing in science at least once during grades 3 through 5, grades 6 through 9, and grades 10 through 12 beginning in the 2007-2008 school year. This is one of your proposed amendments to Section 15.1-21-08 of the NDCC. 20 USCA 6311(b)(3)(C)(vii) requires state testing in mathematics and reading or language arts in grades 3 through 8 beginning in the 2005-2006 school year. Another of your proposed amendments to Section 15.1-21-08 of the NDCC is clearly intended to comply with this federal testing requirement. It is obvious that your proposed changes to state law are intended to comply with the No Child Left Behind Act of 2001 which expressly prohibits states from requiring homeschool students to participate in any of these assessments.

Apart from the violation of federal law which your proposed legislation would bring about, there are other testing issues to consider. Presumably the state tests would be text-specific tests based upon course content offered in the public schools. The testing prescribed for students in home education should be standardized achievement testing as now required by Section 15.1-23-09 of the NDCC, not any text-specific tests developed by the state. The standards for test administration as set forth in the Standards for Educational and Psychological Testing (1985) by the American Educational Research Association, the American Psychological Association, and the National Counsel on Measurement in Education confirm that it is improper to test students on specific material not previously taught and that text-specific tests are generally invalid in determining the overall knowledge or ability of a student. Therefore, the testing proposed for students receiving home education is contrary to the standards recognized and utilized by these most prominent authorities on testing in the United States.

Finally, there are serious constitutional issues raised by the testing requirements proposed in your bill. Under the proposed testing, requiring home school students to take these examinations would clearly violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. We base our assessment on the case of Debra P. v. Turlington, 644 F.2d 397 (5th Cir. 1981), a 1981 decision by the United States Court of Appeals for the Fifth Circuit. In this case, the plaintiffs brought suit to challenge the constitutionality of a state law requiring all public school students to take and pass a literacy examination before receiving a high school diploma. The overriding issue in that case was whether the state 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. The court found that a student's expectation of receiving a diploma was a property interest protected by the Fourteenth Amendment. In doing so, however, the court expressed a general principle which is applicable to situations not necessarily involving the expected receipt of a diploma. In the Debra P. case, the Fifth Circuit said:

The due process violation potentially goes deeper than deprivation of property rights without adequate notice. When it encroaches upon concepts of justice lying at the basis of our civil and political institutions, the state is obligated to avoid action which is arbitrary and capricious, does not achieve or even frustrates a legitimate state interest, or is fundamentally unfair. See St. Ann v. Palisi, 495 F.2d 423, 425 n.5 (5th Cir. 1974). We believe that the state administered a test that was, at least on the record before us, fundamentally unfair in that it may have covered matters not taught in the schools of the state.

Testimony at trial by experts for both plaintiffs and defendants indicated that several types of studies were done before and after the administration of the test. The experts agreed that of the several types of validity studies, a content validity study would be most important for a competency examination such as SSAT II. The trial court apparently found that the test had adequate content validity, 474 F.Supp. at 261, but we find that holding upon the record before us to be clearly erroneous. In the field of competency testing, an important component of content validity is curricular validity, defined by defendants' expert Dr. Foster, as "things that are currently taught." (Tr. 2845) This record is simply insufficient in proof that the test administered measures what was actually taught in the schools of Florida. 644 F.2d, 404-405.

Without a doubt, the tests for state content standards described in Section 15.1-21-08 of the NDCC are or will be constructed without reference to the current content of instruction in the myriad home education programs in North Dakota. Nor could the examinations reasonably be expected to do so, given the diversity of homeschool curricula being utilized throughout the State. Moreover, it is clear that there has not been a validity study which is necessary in this context.

The court in the Debra P. case also said that, "if the test is found to be invalid for the reason that it tests matters outside the curriculum, its continued use would violate the Equal Protection Clause." One of the constitutional requirements of equal protection is that there be a rational relationship between such a test and the state's interest in education. In the Florida case, the court said that if the test was not fair, then the test was not rationally related to a state interest and therefore failed the constitutional equal protection requirements. The tests proposed for homeschool students in North Dakota would not be fair, because they would cover course content not taught in home education programs.

Further, it is impermissible for the state to prescribe the course content of subjects taught in home education programs. To do so would effectively destroy this form of private education. This was previously attempted in Oregon which enacted a law banning all private schools. In the case of Pierce v. Society of Sisters, 268 U.S. 510 (1925), the U.S. Supreme Court held this law to be unconstitutional in violation of the right of parents to direct the education of their children as guaranteed by the Due Process Clause of the Fourteenth Amendment. Your proposed legislation requiring students in home education to achieve minimum test scores on assessments for content standards would require these students to be taught the public school curriculum, thereby denying parents the right to choose a different curriculum for their home education program. Many homeschooling parents object to the course content of subjects taught in the public schools, particularly in science. By not being able to choose the course content of their curricula, homeschooling parents in North Dakota would find themselves in the same circumstance as those parents in Oregon who were unconstitutionally required to send their children to public school. Under your testing proposal, home education in North Dakota would become nothing more than public school at home.

Needless to say, we will assist the homeschooling families in North Dakota in opposing this legislation which would require them to meet state content standards. No other state in the nation has any such law, nor has any other state even proposed such legislation.

Very truly yours,

Dewitt T. Black, III

DTB:tjs

Cc: Ms. Jean Newborg, Testing Coordinator
       Department of Public Instruction
Mrs. Gail Biby, Executive Director
       North Dakota Home School Association
Gregory Lange, Esquire