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Assessment in Education: Principles, Policy & Practice

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Legal and educational perspectives of equity in assessment

J. Joy Cumminga
a
Griffith Graduate Research School, Griffith University, Brisbane, Australia

To cite this Article Cumming, J. Joy(2008) 'Legal and educational perspectives of equity in assessment', Assessment in

Education: Principles, Policy & Practice, 15: 2, 123 135

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Assessment in Education: Principles, Policy & Practice

Vol. 15, No. 2, July 2008, 123135

Legal and educational perspectives of equity in assessment

J. Joy Cumming*
Griffith Graduate Research School, Griffith University, Brisbane, Australia
Equity in assessment concerns all educational authorities and practitioners. While
educators commonly consider issues of equity in terms of accommodations for students
with special needs, or addressing cultural difference, equity issues in educational
assessment have emerged outside these bases. This paper examines equity assessment
issues, drawing predominantly on case history from the United States of America (US)
with examples from Australia and England, to demonstrate areas that may draw legal
consideration. The discussion shows that the legal standard to establish inequity is high
and sometimes illogical from an educational perspective. The paper is intended to assist
understanding of legal implications of educational assessment in order to reduce the
likelihood of legal claims and the resultant redirection of valuable resources from
educational provision. The discussion is also intended to broaden thinking on matters
that impact on the provision of equitable educational and assessment opportunities for
all students.

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Assessment
10.1080/09695940802164168
CAIE_A_316582.sgm
0969-594X
Original
Taylor
202008
15
Professor
j.cumming@griffith.edu.au
00000July
and
&
Article
Francis
J.Francis
(print)/1465-329X
JoyCumming
2008
in Education
(online)

Introduction
Legal grounds on which claims of inequity in assessment policy or practice may be made
are diverse. This paper is one of a series of papers by the author and colleagues exploring
equity issues in assessment and grounds for legal challenge, including the assessment of
students with special needs under discrimination and disability legislation and the impact of
accountability legislation on such students. This paper goes beyond issues of equitable
assessment for students with special needs, to examine cases where groups of students have
challenged assessments for certification purposes or issues arising from student engagement
with assessments required for certification purposes.
The paper draws mainly on US case law, with examples from Australian and English
law. These jurisdictions, while appearing similar on the surface due to their origins in the
English adversarial court system and hierarchy of courts1, have underlying differences that
provide different bases for legal challenges; for example, the US Constitution and subsequent Amendments2 provide a framework for legal challenges not available in Australia or
England. However, the principles discussed in the papers generalise beyond the jurisdictions
considered, particularly to nations that have inherited or adapted the Westminster system of
government where parliament establishes laws but an independent judiciary oversees their
implementation or matters outside the laws, thus establishing the common law.
Assessment, equity and the law
From a lay perspective, we often believe that legal recourse should be available to remedy
circumstances that appear fundamentally unfair. However, to initiate a legal action
*Email: j.cumming@griffith.edu.au
ISSN 0969-594X print/ISSN 1465-329X online
2008 Taylor & Francis
DOI: 10.1080/09695940802164168
http://www.informaworld.com

124

J.J. Cumming

requires a cause of action that is recognised by the Court, an identifiable loss to the
individual, and a remedy that the Court can provide. For example, non-compliance of an
authority or individual with legislation, such as discrimination law, without a valid reason,
provides a cause of action, under administrative or public law. The plaintiff would need to
commence proceedings to challenge the action in a tribunal or court of law to establish that
an inequity did occur. However, the burden of proof required to justify that there is a case
for the defendant to answer can be very high. For example, to be successful in a claim under
the tort law of negligence the plaintiff must satisfy several elements, established in common
law in the case Donohue v Stevenson (1932), that

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a duty of care is owed by the defendant to the plaintiff

there was a breach in the duty of care either by act or omission
the plaintiff suffered foreseeable damage (injury or loss) as a result of the breach.

While various sophistications have been added and withdrawn from these elements, the
basic principles still hold.
The final legal burden of a plaintiff is identification of the negative impact of the alleged
wrongful act in a manner sufficiently clear that, if successful in proving the matter, a legal
remedy can be applied. Remedies include the granting of an injunction that requires the
defendant to do, or not do, the disputed activity. They can also involve the award of monetary damages estimated on costs incurred, likely to be incurred, and, in some circumstances,
loss of potential earnings.
Given that those who wish to challenge in the courts may be successful in meeting these
standard legal hurdles, a further barrier presents. Courts in the jurisdictions considered in
this paper have traditionally expressed reluctance to enter into disputes against schools and
statutory authorities regarding implementation of their own functions, particularly core
practices of teaching, assessment and student learning (Fleming 1998). This reluctance is
expressed as argument on policy grounds (Hopkins 1996; Cumming 2000) that allowing
such actions to be considered in court would:

mean court involvement in implementation of public (education) policy (Wade J in

London Borough of Southwark v Williams [1971] Ch at 750, cited in Morris and
Sappideen 1993, 79);
mean courts setting professional standards which courts are not qualified to do;
open floodgates to educational negligence claims and redirect the spending of
limited public monies from educational activities to litigation;
allow indeterminate actions for indeterminate classes for indeterminate losses;
not be able to establish specific causality (Williams 1996, 286) in person or time; or
reliance in a general context (see, e.g., Bryan v Maloney (1995) 182 CLR 609; Esanda
Finance Corp. v Peat Marwick Hungerfords (1997) 71 ALJR 448; and, more specifically for education, Culhane 1992, 360) despite reasonable foreseeability that
damage through poor teaching would affect student pathways in life;
have detrimental effects on long-term teacher student relationships (X v Bedfordshire
CC(1995) 2 AC 633);
lead to overcautious and defensive teaching (Phelps v London Borough of Hillingdon
[1998] ELR 38); and,
deter good students from entering the teaching profession.

Legal challenges on the basis of the same educational assessment issue may have a different cause of action in different nations, tied to the constitutional differences or statutory

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125

implementation previously mentioned. While, in the US, education-related challenges occur

on the basis of alleged breach of statutory obligation, they are also often brought on the
grounds of individual rights established through the Constitution, such as equal protection
and due process (the 14th Amendment to the US Constitution). In Australia (despite its written Constitution3) and England, constitutionally-based individual rights do not exist. The
effect on individual rights of the latters admission into the European Union is still being
explored in case law. Legal challenges in education in Australia and England are usually
brought in public law on the basis of breach of statutes such as anti-discrimination laws, or
through private law such as the tort of negligence.
In many cases, particularly in Australia, disputes are settled through mediation or tribunal hearings prior to escalation into court challenges with their substantial time delays and
financial costs. If a matter does reach trial, schools and authorities may settle out of court
to limit not only legal costs but also damage to reputation, and likelihood of further claims,
if the plaintiff is successful. Settlements are usually confidential and not necessarily an
admission of responsibility by the defendant.
However, matters involving equity and fairness in educational assessment have been
determined by the courts, despite their reluctance, with several cases setting clear precedents that will lead to further challenges. In the following discussion, claims regarding
equity and educational assessment are grouped by area of challenge and the different causes
of action, and the resulting court decisions and arguments examined.
Opportunity to learn
A reasonable starting point for fair and equitable assessment is that all students should have
had opportunity to learn what is being assessed, a term that has entered education law from
high-stakes assessment cases in the US. Legal challenges have been mounted, with differing
success, in three areas classifiable as opportunity to learn. These are:

that students have been presented in class with the curriculum to be assessed;
that students have had sufficient notice about changes to assessment; and,
that sufficient resources, broadly interpreted, have been provided to enable students
to learn what will be assessed.

Equity in assessment and curriculum exposure

School graduation certification in many nations requires students to complete externally-set
examinations based on state-established curriculum. In a New South Wales (Australia)
secondary school, a class of students alleged negligence under tort law when their High
School Certificate (HSC) English examination results fell in the lowest 20% of state
outcomes.
Normally it would be difficult to establish that poor results occur because of disadvantage in teaching, especially for individuals, given the recognisable but unquantifiable influence of other factors on achievement, including students engagement with learning.
However, in this situation, the results for the same class of students for other subjects were
in the top 20% of state outcomes. It was established that the English teacher had failed to
teach a significant component of the curriculum with the result that the students could not
demonstrate appropriate achievement levels in the HSC examination. The action was settled
out of court, as was a similar case (Swansea High School, cited in Tronc, 1999). Students
could not be assessed fairly as they had not been provided with the opportunity to learn

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the appropriate curriculum. The settlements were probably small compared to the
inconvenience suffered by students, who, in some cases, missed out initially on university
placement because of their poor results.
Equity in assessment and adequate notice
In the US, a well-known series of cases has challenged assessment equity on the basis of
opportunity to learn, starting with the initial 1979 Florida challenge, Debra P. v Turlington
(1979, 1981, 1983, 1984). Plaintiffs were all present and future twelfth grade public school
students in the State of Florida who have failed or who hereafter fail the SSAT-II [The
Florida Student State Assessment Test, Part II] and all present and future twelfth grade
black public school students in the State of Florida who have failed or who hereafter fail the
SSAT-II. They challenged a 1978 amendment to the Educational Accountability Act of
1976 (Florida, US) that required students to pass a functional literacy test (the SSAT-II) in
order to receive a high school diploma, to be enacted for the 197879 school year. The
plaintiffs argued that they had been denied equal protection and due process as provided by
the 14th Amendment to the US Constitution. The initial class action filed in 1979
challenged the constitutionality of the SSAT-II.
While several legal issues were raised, a major issue raised at onset was time allowed
for opportunity to learn. The core skills constituting the requirements for the test were not
determined, and information about the basic skills and functional literacy skills to be tested
not distributed to teachers, until 1977. By 1979 when the requirement was to be introduced,
only thirteen months of instructional time had occurred. The Court noted that the degree
of implementation of the basic skills across schools in such a short time would be varied
and that students would not have been aware of the significance of the skills as preparation
for certification.
It is critical that at the time of instruction of a functional literacy skill, the student knows that
the individual skill he is being taught must be learned prior to his graduation from a Florida
public school.
The problems created by the abrupt schedule for implementing the Functional Literacy
Test were most severe for the members of Florida high school graduation class of 1979. At
the eleventh hour and with virtually no warning, these students were told that the requirements for graduation had been changed. They were suddenly required to pass a test
constructed under the pressure of time and covering content that was presumed to be
elementary but that their schools may or may not have taught them recently, well, or
perhaps at all. (Debra P. 1979, 2425)

The initial Court found that the test was a violation of the due process clause of the
Constitution (14th Amendment) and, most importantly, that the notice of the test was
inadequate (Debra P. 1979, 26). Based on expert testimony, the Court stated that four to
six years was desirable between announcement of such a policy change and implementation
and gave a four-year injunction against the use of the SSAT-II as a diploma requirement
until the 19823 year (Debra P. 1979, 1). The Court held that the State could authorise the
test for remedial purposes and that it was an appropriate measure.
The Fifth Circuit Court of Appeals in 1981 affirmed the original District Court finding
regarding lack of due process for a graduating class and the granting of an injunction
delaying the implementation. However, it also ordered that there should be further
examination of the curricular or instructional validity of the test, discussed later.

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Equity in assessment and adequate resources

The original decision in Debra P. noted concerns about imposing graduation requirements
on students who attended schools without the same textbooks, and other resources, as
schools in more affluent districts. The TCRecord (Koshi and Weis 2004, 106(10),(11))
has published a special two issue volume based on the arguments around a significant
opportunity to learn case and the provision of adequate resources, Williams v State of
California, filed San Francisco County Superior Court as a class action in 2000 and settled
in August 2004. The plaintiffs alleged that the State of California had failed its constitutional obligations to educate all of its students and to do so on equal terms (Oakes 2004,
1889). Although education in the State is managed through local school districts, the state
constitution provides clear state responsibility. This case occurred within the US education
standards-based reform agenda, that is, educational reform driven by assessment of
student learning outcomes, with financial rewards or sanctions aligned to student
outcomes. Koski and Weis (2004, 1908) summarise such an agenda as requiring three
components:
(1) the state sets broad and high minimum content standards in core academic content
areas, such as math, science, reading, and social studies; (2) the state similarly sets performance standards ; and (3) the state fairly and accurately assesses whether students have
attained those standards.

Issues regarding equitable resources raised in cases such as Williams include:

basic conditions and opportunities in schools

student access to resources and conditions
how distribution of resources is related to students race, language proficiency, and
poverty status
how state high-stakes, test-based accountability systems ensure that all students have
adequate and equitable opportunities to learn what the standards-based educational
system demands. (Oakes 2004, 1889)

Plaintiffs in Williams comprised major civil rights groups in California, the class
(group) of children in schools with poorest resources, fewest qualified teachers and limited
curriculum, children who were primarily low income, and immigrant or children of color.
The focus of the case was not on equitable funding as such but a requirement that the state met
its constitutional responsibility for the provision of appropriate education to individual
students in classrooms. (Oakes, 2004, 1891)

The plaintiffs argument was that appropriate facilities were necessary, although not
sufficient, to allow students appropriate opportunities to learn and to achieve the outcomes
being tested, focusing not just on minimum academic achievement but also equal opportunities for high academic achievement.
The plaintiffs legal argument was that as other students were provided with these
adequate resources, the plaintiffs were being denied equal protection. They were systematically disadvantaged in completing assessment and accountability requirements to the
required level or in gaining sufficient resources to demonstrate high levels of achievement.
The major defence of the State of California was that the distributed administration
system of education in California, through school districts, meant that failure to provide

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sufficient resources, and resultant differential opportunity to learn, was by the local
jurisdictions and, furthermore, that qualified teachers, appropriate materials, and adequate
facilities are not proven to be necessary or useful in educating students such as the plaintiffs
(Oakes 2004, 1894).
The State also argued that the accountability regime in itself would begin to address the
problem of unequal resources. The State did not deny inequality of provision but sought to
avoid engagement with the equity issues. Instead, the State argued that the plaintiffs should
be required to prove that teachers, instructional materials and facilities caused higher
overall levels of achievement as measured by test scores (Oakes 2004, 18945).
The case was settled in August 2004 after the former Governor of California had spent
nearly $US15 million on defence. New Governor Schwarzenegger agreed with the plaintiffs
that the evidence was clear that many schools were poorly resourced and students did not
have an equitable opportunity to learn, and ordered a negotiated settlement. While the settlement brought welcomed acknowledgement of the issues at hand, it is only a first step
towards equity in educational opportunity to learn. A settlement does not set precedent or
establish that the legal arguments of the plaintiffs would have won in the court.
However, the settlement brought new legislation compelling local districts to ensure
minimum provision of resources and allocation of $US1 billion dollars.4 Most notable was
the introduction of new forms of accountability and standards on the system, not students,
and on records of school resourcing, not student achievement. Previously, all Californian
public schools had been required to issue School Accountability Report Cards to provide
parents with data to make meaningful comparisons between public schools to make
informed decisions about where they want to enroll their children (Allen 2005, 33). The
Williams legislation requires the Report Card to include
accurate, specific, and current information regarding the availability of sufficient textbooks and
instructional materials, the number of teacher misassignments (appropriately qualified and
trained teachers) and vacancies, and the condition of school facilities (Allen 2005, 33)

New audit processes ensure information provided to parents is accurate. Further, through a
Uniform Complaint Process students, parents, teachers, and community members can hold
schools accountable for complying with the new instructional materials, teacher, and
facilities standards (Allen 2005, 33).
Williams provides a timely reminder to nations promoting standards-based and assessment-led educational change. Such agendas put focus on schools and teachers to ensure all
students achieve minimum standards through mandated testing and examinations, with
outcomes reported to parents to enable informed choice of schooling. Williams was fought
on equitable grounds on the requirement of a state to ensure adequate, sufficient provision
to enable all students not only to meet minimum expectations but also to have the opportunity to attain and demonstrate high academic achievement. The significant outcome shows
that accountability and equity in education and assessment for every child may be perceived
to start first with the state, not with the school, teacher or home. It may be difficult to argue
in future that equitable provision of resources is not a requirement for students to have equal
opportunity to learn and to complete assessments for high-stakes purposes.

Equity, equivalence and accommodation

A further series of challenges in the US regarding statutory requirements that students pass
specific tests to gain high school certificates have focused on legislation that indicated that

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alternative forms of assessments for some students were to be investigated. In the US in

2006, public high school students, on behalf of the class of students eligible for graduation
in 2006 but who had not passed the California High School Exit Exam (CAHSEE) challenged the requirement that the CAHSEE had to be passed to receive the High School
diploma (Valenzuela et al v OConnell, 2006). The case was similar to that of the initial
Debra P. v Turlington educational reforms for equal provision had only recently been
implemented in California following the Williams legislation, although the Californian
legislature had introduced the testing reforms in 1999, but not implemented them until 2006.
Although intended to be implemented by 20032004, the delay was to ensure the CAHSEE
was a valid assessment, addressing the issue of adequate notice.
An injunction was initially issued by the Alameda County Superior Court preventing the
denial of High School diplomas to the 2006 graduating class who had not passed the
CAHSEE, later stayed in an appeal to the California Supreme Court. A distinguishing factor
in this case was that the legislation requiring CAHSEE for certification had required investigation of appropriateness of other criteria by which high school pupils who are regarded
as highly proficient but unable to pass the CAHSEE may demonstrate their competency and
receive a high school diploma (OConnell 2006, para. 1460, emphasis added). Whether or
not the investigation had been undertaken was disputed, but no other criteria for equivalent
assessments to demonstrate knowledge had been established. The plaintiffs filed, among
other grounds, under the equal protection clause of the California Constitution that they had
not been provided with an equal opportunity to pass the CAHSEE. A separate claim for
students with disabilities (Chapman/Kidd v California Dept of Education) was filed in
2002, and legislation was passed deferring the diploma requirement for students with
disabilities until 2007. Disabilities Rights Advocates (DRA, undated) say that legal action
for students with disabilities will continue to be filed until the CAHSEE is proven to be a
fair and valid test as applied to students in special education.
The Appeal Court considered the balance of convenience of the harm/benefit to the
state or to the plaintiffs of the original injunction, in conjunction with the likelihood the
plaintiffs would succeed, and whether the trial court had abused its discretion in granting
the injunction. The Appeal Court agreed with the Trial Court that the plaintiffs had established a likelihood of success on the grounds of equal educational opportunity (OConnell,
2006, para. 1465). However, it held that the balance of harm and public interest lay with
the policy to raise educational outcomes in Californian schools and public interest.
Further, legally, the status quo could not be maintained through the injunction students
were unlikely to return high school diplomas if the plaintiffs were unsuccessful. The
recency of the Williams legislation implementation and opportunity to learn would have
been relevant had the plaintiffs argued for further assistance, in sympathy with the new
legislation.
The need to have developed alternative criteria or assessments by which students could
demonstrate competence, the issue most educational assessment experts would regard as the
critical component of the legislation and student challenge, was not addressed by the Court.
The matter was sent to the Court of Appeals to determine. In the meantime, the requirement
to complete the CAHSEE successfully for a diploma was re-established.
Equity and test validity
An interesting side issue in the case series discussed earlier, Debra P., was validity of the
mandated certification test. The Fifth Circuit Court of Appeals in 1981, while affirming the
original finding regarding lack of due process for the graduating class, reversed the finding

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on the appropriateness of the test for use for diagnosis and remediation, considering that the
District Court has not established its validity. The Court remanded the case for further
factual findings as to whether or not the functional literacy test cover(ed) material
actually taught in Floridas classrooms, that is, construct validity, or as the Court more
succinctly put it, if Florida is teaching what it is testing, in order to allow the test to be
reintroduced in 1983 (Debra P. 1984, 1409). The validity hearing by the District Court in
Florida was reported in 1983.
Following this ruling, surveys were undertaken to establish validity and sent to every
teacher in Florida asking if instruction had been provided on the SSAT-IIs 24 skills and if
so, if sufficient instruction had been provided for student mastery. A survey was also sent
to school districts asking for further information including when most students should have
mastered the skills and about test preparation and remedial programmes. Two-day site visits
were undertaken to each district to interview administrators and teachers and examine
instructional material. Student surveys were conducted during site visits for observation to
one or two 11th grade English and social studies classes in each district. Among experts
for the defendant, Dr James Popham and Dr Robert Gagne concluded that the SSAT-II was
instructionally valid. Among experts for the plaintiffs, Dr Robert Linn argued that students
may not have had sufficient preparation and exposure to the material for the test to be fair,
identifying some problems and limitations with the teacher and student surveys, and indicating the responses may not be indicative of practice in classrooms (Debra P. 1983, 181).
Legal discussion also occurred regarding admissibility of the survey data as evidence, with
the Court ruling the data admissible, but its weight to the decision to be considered, given
the plaintiffs arguments. Plaintiffs argued also that the burden of proof required to establish
the instructional validity of the test was higher than that provided by evidence collected.
However, the Court noted that although students had a property interest in their diploma,
state interest in providing appropriate public education balanced the individual property
right (Debra P. 1979, 26) and the burden of proof required.
The Court noted
in large part, this Court has been called upon to settle not only a legal argument but also a
professional dispute. At times, the distinction between these two spheres has blurred. The
experts for both sides spoke in terms of fairness, adequacy and sufficiency. Yet, these
terms are not necessarily synonymous with constitutionality. any judicial decision on this
issue will reflect only the minimum standards essential to fairness under our legal system.
Policymakers must meet, but are not limited to, the minimum standards pursuing the goal of
educational equity for students. In other words, even though the defendants might have
implemented a much more equitable program, their actions might still pass constitutional
muster. (Debra P. 1983, para. 183)

The Court held the test had instructional validity, was constitutional, that the State had the
right to impose the diploma requirement, and that students were afforded adequate opportunity to learn the skills tested. The outcome was affirmed, that
students were actually taught test skills Therefore, the State of Florida may deny
diplomas to students (beginning with the Class of 1983) who have not yet passed the SSAT-II.
(Debra P. 1984, paras. 14161417)

Given the reluctance of courts to engage with matters of educational substance and the
usual deference of the courts to the right of bodies such as the state to make policies, this
case sets interesting precedent. The court actively intervened to require curricular test validity to be established. Although some educators may agree with some of the expert witnesses

Assessment in Education: Principles, Policy & Practice

131

that the extent to which the validity of the SSAT-II was established for all students was
limited, the interesting aspect of the case was that the curricular or construct validity of a
test of significance to students was considered by the court to be an essential part of the legal
argument. In Anderson v Banks (1981), a case on similar grounds at the same time as Debra
P., it was noted that
in light of the strong language in Debra P., the Court has no choice but to conclude that the
District has not sustained its burden. fundamental fairness requires that the state be put
to test on the issue of whether the students were tested on material they were or were not
taught. . The Court can only conclude that where the award of a diploma depends on the
outcome of a test, the burden is on the school authorities to show that the test covered only
material actually taught. (Anderson v Banks 1981, 509)

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With the introduction of more mandated examinations and examination-authorised

sanctions in England, the US and Australia, test validity and the courts is a space to watch.
Equity, natural justice, exclusion and assessment
The final equity issue discussed here relates to procedural fairness and impact on student
engagement with high-stakes assessment. Applications of principles of procedural fairness
and natural justice are social expectations, such as the right of an individual to know the
nature of allegations against them and to respond. While the following challenges involve
individual students, they may be considered to represent a class of students for whom issues
of fairness and natural justice on the basis of behaviour and administrative actions
exclusions impact on capacity to engage with external examinations,.
In CF (2003), three Year 10 students (the School Certificate year) in New South Wales,
Australia, were to be given a Long Suspension from school in June (mid-academic year)
for alleged illegal substance use (CF 2003, para. 2). While the students challenged the
evidence and processes leading to the suspensions, and failure to follow procedural fairness
guidelines, the students claimed they would suffer undue hardships, if the suspensions were
allowed at the proposed time, through inability to sit for their trial examinations for School
Certificate assessment, with potential to impair their educational and work experience
opportunities (CF 2003, para. 25). The Court found that the Principal had acted fairly and
without bias (para. 44), and that any variations from accepted procedure did not have a
negative impact on the students. The Court did consider the impact on the trial examinations.
The evidence given was that these were internal examinations, designed both to give
examination experience and to contribute to assessment outcomes. Students often missed
the trials due to illness or sporting commitments, and the suspended students could complete
them at home, at school later, or undertake later class-based assessments. The Court
accepted that being unable to sit for the examinations would not have caused any real
detriment. However, the timing of the case and requisite injunction while it was heard had
the effect of delaying the suspension. The issue was a moot point (CF 2003, paras. 46, 52).
The NSW policy on Suspension and Expulsion of School Students (DET 2005), clearly
states that rules of procedural fairness must be followed in cases of suspension and exclusion (paras. 5.0.3, 8.1.3, Appendix 2) but does not make specific recommendations regarding suspensions and expulsions and impact on examinations.
In another Australian case (Dage v Baptist Union of Victoria, 1985), a student was
expelled six weeks prior to completing his high school certification examinations, required
to keep away from school property (and masters and library) and to sit for his examinations

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in an external site. The Court, endorsing that principles of natural justice had to be
applied, considered the balance of convenience for the impact of the school decision on the
students welfare and the schools public standing (that is, loss of face if the decision of the
principal was not endorsed). The Court considered the significance of the examinations in
the young mans life, and the negative impact of denial of access to the library, to masters,
and the pressure of sitting in different surroundings. The student should be given the best
chance of distinguishing himself on these examinations (Dage 1985, p. 275). On the
balance of convenience, the injunction would have been granted. However, it was agreed
that the school and student would give undertakings to avoid the court ruling and loss
of face.
English cases have proceeded on similar themes. In S (1997), a student appealed an expulsion decision based on lack of natural justice and presenting her case. It was noted that the
decision to expel S had been made while mindful that she was studying for her General Certificates of Secondary Education [GCSEs] (para. 14) although consideration of the impact of
expulsion on her was not a consideration in the finding that the decision-making leading to
her expulsion was flawed. The School Standards and Framework Act 1998 (England) (http:/
/www.opsi.gov.uk/Acts/acts1998/ukpga_19980031_en_1) addresses directly the procedures
to be followed, including appeals for reinstatement, if a student is to be excluded and lose
an opportunity to take any public examination (s 65(3)(a)(ii)). In L v J, an excluded student,
L, who had won reinstatement, appealed the reinstatement process that followed. As teachers
had threatened to strike, and not teach other students who were to take their GCSEs, if L
rejoined classes, L was (L v J 2001, para. 25) allowed to attend school but not to mix with
other students or staff, to be supervised by a retired teacher, with a number of other teachers
setting and marking work. This period of reinstatement coincided with the end of direct
instruction for students and study time for the examinations. The statement was made in the
original trial that L was making more progress under individual arrangements than he had
made in school classes (L v J 2001, para. 17), and therefore dispute as to whether the appellants performance in his GCSE exams was worse or better as a result of his being placed
in segregation to study on his own (L 2003, para. 77). Ls legal representatives directly challenged the nature of the reinstatement (and its impact on his GCSEs) in a subsequent appeal
to the House of Lords (L 2003, para. 42). This was not a consideration where the issue was
the capacity of the headmaster to interpret reinstatement and the impact of the teachers
threats. In a 32 decision, the House of Lords supported the school action.
However, these cases indicate that procedural actions to terminate student enrolments that
affect serious examination processes, and the chance for a student to succeed as well as possible in the examinations, should be given very careful consideration. Although in general
the actions of the authorities have been endorsed by the courts, they have been allowed to
be heard and the outcomes to date are varied. Students may be punished for inappropriate
behaviour but should not suffer double jeopardy through impact on examination success.
Conclusion
The increasing emphasis on assessment outcomes in current education reform and accountability agendas is also increasing the significance such outcomes play in the lives of
individuals and schools. More assessment decisions are becoming high-stakes. This, in the
context of increasingly litigious societies, is leading to an increase in the use of legal
challenges related to educational assessment.
Legal challenges have been mounted by students, in many cases successfully, at least in
delaying accountability agendas until a cohort of students has had a fair chance to be

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appropriately prepared, or in obtaining remedies to ensure that students will have a fair
chance to demonstrate knowledge. In most cases, in hindsight, the matters challenged are
preventable. Equitable access to the curriculum to be assessed, provision of adequate
resources and implementation of appropriate assessment regimes are surely public expectations of education. Focusing on meeting these expectations and anticipating equity issues
that might arise will reduce the likelihood of future claims. An area that is still to be considered fully by the courts in the US is the degree to which modifications to a standard form
of assessment can ever provide adequate fair assessment of a student with special needs, that
is, adaptations versus alternatives. This has the potential to draw international attention to
issues of equivalence in determining whether students have had an equitable opportunity to
demonstrate their learning.
As noted, the principles of law deriving from these cases and jurisdictions apply in many
nations and the matters affecting equity in student assessment are important for all. In countries where human rights legislation has been passed, students may have a stronger chance
of succeeding in challenges against educational authorities and legislation. Within a nation,
and its hierarchies of courts, the general principle of precedent, especially in common law,
is that reasoning in a previous case will stand unless it can be distinguished on some critical
factor. While cases from one jurisdiction are not binding on another, evidence and judgment
in serious cases, especially in education, will refer to decisions and legal writing from other
jurisdictions. While the cases in the US may appear to be idiosyncratic to that nation and its
legislation for due process and equal rights, the principles for educational assessment may
be noted and considered applicable by the courts in many other nations. It would be hard
for a major assessment system to argue conscionable behaviour in using assessments for
punitive decisions, where students have not had an equal opportunity to learn. However, at
present in Australia, a national testing system in literacy and numeracy in Years 3, 5, 7 and
9 is to be introduced in May 2008, with the agreement of the State and Federal Ministers of
Education, with expectations of national report cards and state comparisons inherent. At
present, the essential learnings that underpin these new national tests are still being negotiated, leaving little over 12 months for due notice to systems, teachers and students. If a
state or system should conclude that the essential learnings are not an appropriate match to
their existing curriculum, or have not been given an appropriate instructional weighting in
classrooms in prior syllabuses, might there be a challenge on the basis of adequate notice
with an injunction sought for implementation delay? Would an Australian court be able to
ignore the US findings as irrelevant to the Australian context? What of the corresponding
issues of establishment of test validity for such purposes, if challenged in the court?
Barriers to successful legal challenges are high for plaintiffs, but not insurmountable.
The courts avoid engagement in matters of educational decision-making on policy
grounds. However, judgments by the courts in common law, that is court-led law-making,
move to reflect public values, sometimes ahead of legislative change. The significant educational desegregation cases of Brown v Board of Education (1954, 1955), in the US, and
cases of sex, disability or race discrimination, attest to the social reflection that has emerged
through common law impelling legislative and policy change. It is possible that if the
general public believe educational practices in the field of assessment are unreasonable, the
opinions of the courts could be swayed. Recent press releases in the US have indicated that
public opinion is swaying against the amount of public testing and its negative impacts, with
politicians including reduced testing in their platforms for election (see, for example, Stutz
2006; Whoriskey 2006).
Precious resources and time are consumed through litigation. While the challenges
discussed in this paper could have been avoided in hindsight, they demonstrate the public

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J.J. Cumming

expectation of the highest standards of educational provision, policy and practice in the area
of educational assessment legislation and policy to ensure a fair opportunity for all.
Notes

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1. At the simplest level, the western legal system practised in England, Australia and most of the US

states, and many former members of the British Empire, encompasses civil and common law.
Civil law refers to statutory laws passed by governments, while common law refers to judgemade law and the use of legal precedent. However, when challenges based on a breach of a statute reach the court, the court must still interpret the intent of the statute, and precedent is still
important and used. A further distinction in law is made between public law and private law.
Public law refers to the powers of a government, for example, administrative law, which covers
the failure of governments or other authorities to follow appropriate legal procedures in their
dealings with others such as natural justice. Private law refers to laws governing relationships
between private individuals, which may in some circumstances include a government. Education
cases can arise under an array of legal areas that are fairly internationally recognised: for example, the failure of a private school to deliver services promised to a student, as a fee is received,
would be a failure in contract, under contract law. A student who alleges that they have suffered
physical or other harm as a result of negligent action or inaction by a school or authority would
take legal action for a tort, that is a civil wrong or breach of duty, under tort law. If a student
alleges failure of the government to provide a right guaranteed to each individual under a Constitution, the area of law would be constitutional law. In Australia and England, given the absence
of individual rights to date, many allegations of unfair discrimination are based on challenges
under anti-discrimination statutes, or discrimination law. Persons who bring the legal challenge
in the first instance are usually identified as plaintiff. Those being challenged are identified as
the defendant or respondent. Whatever the issue, a legal practitioner should be able to identify
an appropriate area of legal challenge and precedent case law.
2. Constitution of the United States of America adopted by convention of States, 1787, ratified 1788.
The first 10 amendments comprise the Bill of Rights. There are 17 subsequent Amendments, of
which the 14th Amendment Citizenship Rights gives rise to the due process and individual
rights that underpin most US assessment case law.
3. Commonwealth of Australia Constitution Act 1900 (Imp) (Constitution).
4. A report one year on after the settlement (Allen 2005) documented the resulting legislation and
the changes that occurred in initial implementation.

Notes on contributors
Joy Cumming is a professor of Education and the dean of the Graduate Research School at Griffith
University Australia. She combines recent formal qualifications in law with a long educational
research career in educational assessment and learning to explore legal issues in modern assessment
and accountability regimes and childrens rights in education.

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