Boston Globe: US judge declines suit on MCAS

[Gloria Pipkin <gpipkin@I-1.NET>]

US judge declines suit on MCAS
Says state courts should determine merits of the case
By Anand Vaishnav, Globe Staff, 12/3/2002

SPRINGFIELD - In a ruling tinged with sympathy for the student plaintiffs, a
federal judge yesterday declined to hear a lawsuit seeking to strike down
the MCAS exam, and directed lawyers to wage their battle over the
controversial test in state court instead.

Eight students who have failed the MCAS test required for graduation are
suing state education officials, saying the test is discriminatory and that
many struggling schools have failed to teach students the material on the
exam.

Yesterday, US District Court Judge Michael A. Ponsor said he would not
decide the highly anticipated case because it largely covers alleged
violations of state law - something federal courts typically avoid. Yet he
urged the plaintiffs to return to him if they get bogged down in state
courts. And he agreed that the case raises pressing questions about whether
the MCAS test is a ''benefit or burden'' on students who haven't been
prepared.

''I don't know what the answer to that question is,'' Ponsor said. ''It is a
tough question. I do know that it is a question for state courts, not
federal courts.''

While neither side claimed victory, nor conceded defeat, lawyers for the
students had clearly hoped that the strength of their claims - alleged
violations of the US and the Massachusetts constitutions - would be decided
by a federal court and carry national significance. And federal courts have
taken on several prominent cases dealing with high-stakes testing.
Thomas Frongillo, the lead attorney for the eight unidentified students,
said his team probably will file suit in state court before the winter
holidays. About six months remain before the first class of students are
denied diplomas because they have not passed the MCAS test.

''It's just a shift of forum,'' said Frongillo, of the Boston firm Testa,
Hurwitz and Thibeault. ''We're going to move expeditiously because our
clients, the students, their rights are at issue.''

Ponsor retained jurisdiction over the five counts of the case that deal with
alleged violations of federal law. He dismissed four counts that deal with
state law ''without prejudice,'' meaning lawyers can file them again.

Heidi B. Perlman, spokeswoman for the state Department of Education, said
lawyers from Attorney General Thomas F. Reilly's office will defend the test
in state court. ''It's important for state law to be decided by a state
judge,'' Perlman said. ''We're not seeing this as a victory or a defeat. By
a long shot, nothing is over. It just moves from one courtroom to another.''

Anti-MCAS activists who had fought the graduation requirement since the
test's debut in 1998 through protests, boycotts, and grass-roots campaigns,
say they wish Ponsor had heard the matter. But they are pleased that the
battle isn't over.
''We find it very heartening that the judge was actually quite sympathetic
to the substantive arguments,'' said Jackie Dee King, statewide coordinator
of the Coalition for Authentic Reform in Education. ''He made many
references that it was a heartbreaking case.''

The lawsuit involves eight unidentified student plaintiffs from Billerica,
Brockton, Holyoke, Northampton, and Springfield. They are minorities,
disabled, limited-English, or vocational students who claim the test is
discriminatory. Their lawyers are seeking class-action status. Passing the
English and math sections of the test is a graduation requirement beginning
with the class of 2003.

During a lively 75-minute hearing before a courtroom filled with college
students, lawyers, anti-MCAS advocates, and educators, Ponsor quizzed the
two sides on why he should get involved. At one point he demanded: ''Why the
heck aren't you in state courts where they could decide if there are state
violations?''

Frongillo said half the case covers violations of the US Constitution and
federal statutes, particularly the discrimination and equal-protection
claims. For example, Latino students make up about 8 percent of the class of
2003, but 50 percent of them have not passed MCAS yet. By contrast, white
students make up 79 percent of the class, and 13 percent have not passed
yet.

Frongillo also argued that state officials had no authority to create the
graduation requirement - even citing evidence that Education Commissioner
David P. Driscoll had tried unsuccessfully to amend the Education Reform Act
to include the requirement.

But Ponsor pointed out that while courts can rule on whether officials
overstepped their authority, they rarely suggest remedies, which the
students' lawyers wanted him to do.

''I'm flattered you're here. It's nice to have you here ...,'' Ponsor said.
''But I have to say my puzzlement has deepened with every page I've read as
to why you're making this so much harder for you by bringing this to federal
court.''

He did swat away the state's arguments that the students had no standing to
file a lawsuit because none had been denied a diploma yet. The point, Ponsor
said, was that schools might not have taught the material at all. About 19
percent of the class of 2003, or 12,000 students, have yet to pass. They get
two more tries before June, including a retest scheduled for next week.

''The Commonwealth will have to keep an active file on these arguments,''
said Paul Reville, executive director of the Center for Education Research
and Policy at MassINC, a Boston think tank. ''They really need to be heard
and decided. It would be, in my view, a welcome development in the evolution
of education reform for a court to put to rest once and for all the question
as to whether or not the graduation requirement by the state is
reasonable.''

This story ran on page B1 of the Boston Globe on 12/3/2002.
© Copyright 2002 Globe Newspaper Company.
http://www.boston.com/dailyglobe2/337/metro/US_judge_declines_suit_on_MCASP.
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