March 13, 2002
Dewitt Black's Letter to the State Department of Education

April 1, 1996

Kaye Manson Jeter, Esquire
Legal Counsel
State Department of Education
Office of Commissioner
Nashville, TN 37243 0375

Re: Testing for Home School Students

Dear Ms. Jeter:

Thank you for your letter of March 28, 1996, explaining the position of the Department of Education on testing for home school students as set forth in Mrs. Bryan's memorandum of March 18, 1996. You state that the tests described in Mrs. Bryan's memorandum are "equivalent" to the Sanders Model of value added assessment named in the home school statute, Section 49 6 3050 of Tennessee Code Annotated, and therefore are tests which must be administered to high school level students who are taking these math courses. There are a number of problems with this position.

First, home school students who are not associated with a church related school do not have to take the Sanders Model of value added assessments. The testing for these students is described in subparagraph (b)(5)(A) of the statute and requires that they be administered "the same state board approved secure standardized tests required of public school students in grades two (2), five (5), seven (7) and nine (9); however, the test for grade nine (9) shall not be the high school proficiency test required by 49 6 6001..." This testing requirement was part of the home school statute as originally enacted. During the 1994 legislative session the statute was amended to permit parents to be associated with a church related school from K 12 instead of just K 8, so long as the parent met three requirements for students in grades 9 12: possession of a high school or GED, registration with the local school district, and compliance with newly adopted test requirements, including the Sanders Model. (See "Amendments" footnote to the statute in the 1995 Supplement to Volume 9 of the Code.) The Sanders Model requirements had never been in the statute before, and it is clear that these requirements only apply to home school students in grades 9 12 associated with a church related school.

Second, the statute makes no provision for tests which are "equivalent" to the Sanders Model, as you have characterized the proposed tests. The tests specified in the statute are the Sanders Model of value added assessment. Perhaps there is some documentation to clarify this issue, and, if so, we would like to have a copy of it.

Third, not only the language of the statute but the legislative history indicates that what was intended by the General Assembly was that home school students would be required to take standardized achievement tests, regardless of whether they were derived from the

Sanders Model. As I pointed out in my letter of March 25, 1996, to Mrs. Bryan, when the statute designates the Sanders Model as a possible testing requirement, it says, "or other standardized achievement testing in use in the local education agency which the child would otherwise attend." (Emphasis added.) Further, in discussing this matter with Claiborne Thornton, the President of the Tennessee Home Education Association, he pointed out to me that the statements made on the floor of the House of Representatives at the time of the legislative debate made it clear that the intention was that home school students take standardized achievement tests, not text specific tests prepared from the Tennessee public school curriculum.

Finally, even if the tests described in Mrs. Bryan's memorandum are the Sanders Model tests, there are serious constitutional problems with them. 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 proposed examinations developed by the State of Tennessee have been constructed without any reference to the current content of instruction in the home schools of Tennessee. Nor could the examinations reasonably be expected to do so, given the diversity of home school 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.

I hope this clarifies our position on the proposed tests and that the Department of Education will not attempt to impose this requirement on the home schooling families of Tennessee. The vast majority of home educators in Tennessee are committed to full compliance with the applicable law. However, our assessment is that this testing requirement is without statutory authority as well as unconstitutional, and we will advise our members accordingly.

Very truly yours,

Dewitt T. Black, III

 Other Resources

Department of Education Memo Confusing Home Schoolers